The blind and the intoxicated may travel, and | mer case under the first count "was, that in view not be concluded from recovery thereby. of the relation of master and servant, and the im Alger v. Lowell, 3 Allen. 402; Maguire v. Mid-plied contracts arising out of that relation, that dlesex R. R. Co. 115 Mass. 239.* A case is not to be taken from the jury unless the act is seen to be such that the common judgment of men immediately pronounces it to be negligent. McDonough v. Metropolitan R. R. Co. 137 Mass. 210. In all cases where there is a complication of circumstances, reasons to be weighed, motives and causes to be considered,-the question of care is for the jury. the servant would assume the risks he must know were incident to the business; that plaintiff's intestate did not show he was in the exercise of due care, and that he took'upon himself the risk involved in the position of the well-hole." The opinion of the court in the first case went upon two grounds: first, that there was no sufficient evidence of due care on the part of the plaintiff; second, that the plaintiff's intestate took upon himself the risk involved in the position of the well. Conceding that it must conclusively appear that the plaintiff's intestate was not in the exercise of due care, and that, in considering this question, the fact that he assumed the McDonough v. Metropolitan R. R. Co. supra; Chaffee v. Boston & L. R. R. Co. supra; Gaynor v. Old Colony & N. R. Co. 100 Mass. 208; Copley v. New Haven & N. Co. 136 Mass. 6; Law-risk of the danger which he knew and appreless v. Connecticut River R. R. Co. 136 Mass. 1. In this case, circumstances affecting the conduct of plaintiff's intestate existed, which have been held sufficient to entitle her to a jury upon the question of care. Messrs. E. H. Chapin and D. W. Bond, for defendant. Gardner, J., delivered the opinion of the court: ciated, is to be excluded,-still we think that the decision of the former case, upon all the evidence, determined that the plaintiff's intestate was not in the exercise of due care at the time he received the injury. 3. We do not think that the additional evidence offered by the plaintiff materially changes the evidence upon either of the grounds upon which a new trial was granted. The fact that The first count of plaintiff's declaration al- the deceased by his last contract was to have a leges negligence on the part of the defendant after he was taught, could not affect the busicertain sum per day while learning, and more corporation in failing to guard or fence an elevator-well in the basement of its mill, where The last contract does not appear to have reIness in which he was engaged when injured. the plaintiff's intestate was sent to assist in put-ferred to this business. He was thirty-seven ting on a belt; and that while using due care, he fell therein and was injured. The amended years old; had been in the defendant's employcount is under Pub. Stat. chap. 104, § 14, for ment four or five years; he was hired by the failure to furnish safeguards to an elevator and foreman to make size, and to do whatever the well-hole, and alleges that, by reason of the vio- foreman desired; he was at the mill when the lations by the defendant of the provisions of elevator was put in; he knew of the existence the statute, the plaintiff's intestate, while in the of the elevator-well, and he was looking for it, proper discharge of his duty, fell into the well-to shun it, and was thinking of it when hurt; hole and was injured. At the first trial, the court ruled that the amended count was not supported by the evidence; the plaintiff recovered a verdict upon the first count, and the defendant came to this court upon exceptions. The second trial was upon the amended declarThe fact that all the other floors of the facation. Upon the evidence offered, the court ruled that the plaintiff could not recover, upon testate received his injury, were provided at the tory, excepting the one where the plaintiff's inthe ground that the plaintiff's intestate, at the time he received the injury, was not in the ex- rial. The opening of the court in Taylor v. opening with self-closing hatches, was immateercise of due care. The defendants now contend that the determination by this court of the Care Mfg. Co. 1 New Eng. Rep. 210, 140 Mass. questions raised in Taylor v. Carew Mfg. Co. 152, 153, stating the testimony of the de1 New Eng. Rep. 210, 140 Mass. 150, effectually there were no appliances required by statute ceased as to the darkness, and the fact that disposes of all the matters of law presented by upon the floor in question, dispose of the rethis bill of exceptions. Indeed the descripmaining offers of proof. tion, by the deceased, of the accident, shows distinctively a want of due care in performing 1. Where the statute does not otherwise provide, as in Commonwealth v. Boston & L. R. R. Co. 134 Mass. 211, the rule requiring the plaintiff in an action for negligence to show that, at the time of the injury complained of, he was in the exercise of due care, is the same in actions brought under a statute and at common law. The doctrine of contributory negligence governs both classes of actions. Thompson v. Bridgewater, 7 Pick. 188; Adams v. Carlisle, 21 Pick. 146; Munn v. Reed, 4 Allen, 431; Plumley v. Birge, 124 Mass. 57; Denison v. Lincoln, 131 Mass. 236. 2. The plaintiff's counsel, in his argument, assumes that the decision of this court in the for *See Smith v. Wildes, ante, p. 744. [ED.] he knew it was there somewhere, but did not 64 that which he undertook. In the darkness which prevailed in the basement room, to walk quickly, when his eyes afforded practically no to find the hole which he knew was there someassistance, without by hands or feet attempting where, although he could not tell exactly where,' was a failure on his own part to take proper precautions." Taylor v. Carew Mfg. Co. supra. Upon an examination of all the evidence, we think the superior court was justified in ruling that the plaintiff's intestate was not in the exer cise of due care. Exceptions overruled. COMMONWEALTH of Massachusetts D. George E. HOWE. 1. The ballot intended by Pub. Stat. (Middlesex--Filed February 26, 1887.) ON defendant's exceptions. Sustained. Complaint under Pub. Stat. chap. 7, § 57, charging defendant with fraudulent voting. The complaint charges that on December 8, 1885, at the regular annual municipal election of the city of Lowell, "a vote was taken upon the following question, to wit: 'Shall licenses be granted for the sale of intoxicating liquors in this city?' the vote, aforesaid, being then and there by separate ballot, and the said ballot being then and there 'yes' and 'no,' in answer to the question aforesaid, an article providing for a vote upon the aforesaid question having been duly inserted in the warrant for said regular annual municipal election." The complaint then further alleged that the defendant, at said election, did upon said question "wilfully, fraudulently, knowingly, and designedly give in more than one ballot at one time of balloting at the vote and election aforesaid, against the peace," etc. question. I was an inspector at the municipal Wit Upon this evidence, the defendant asked the court to rule that there was a variance between the evidence and the complaint, inasmuch as the complaint alleged that the ballot was "yes" and "no" while the evidence is that the ballot was "yes" or "no," and therefore the verdict must be for the defendant. The court declined so to rule. The defendant asked the court to rule that there was no evidence that, in taking the vote on the question of whether licenses should be granted, the check-list was used at said vote, or that a proper check-list was used; and that, by reason of failing to show that a In the superior court before Staples, J., be- separate check-list was used in taking the vote fore impaneling a jury, the defendant filed a on the question of licenses, the government has motion to quash said complaint for the follow-not shown that a legal and valid vote was taken; ing reasons: (1) that said complaint sets forth no and therefore the verdict must be for the deoffense against any law or laws of this Com- fendant. The court declined so to rule, and monwealth; (2) that the said complaint does did rule that there was evidence to go to the not allege that the check-list was used at said jury as to whether the check-list was used in vote; (3) that the same complaint alleges that the license vote, and that the jury must be satisthe ballot was "yes" and "no," while the stat- fied the check-list was used in taking the same. ute authorizing the vote to be taken requires The jury returned a verdict of guilty, and to that the ballot shall be "yes" or "no;" (4) that, the rulings and refusals to rule, and to the overin alleging the question on which the vote was ruling of the motion to quash, the defendant taken, the said complaint does not allege in alleged exceptions. what city licenses for the sale of intoxicating liquors were or were not to be granted. This motion the court overruled. A similar motion was filed in the police court of Lowell before the trial there. At the trial in the superior court, besides other evidence, one James F. McKissock testified in behalf of the government as follows: There was a municipal election in Lowell, December 8, 1885; they voted on the license Mr. William F. Courtney, for defend ant: If any fact or circumstance which is a necessary ingredient of the offense, is omitted in the complaint, such omission vitiates the complaint. Commonwealth v. Chapman, 11 Cush. 422; Commonwealth v. Moore, Id. 600; Moore v. Com monwealth, & Met. 243; U. S. v. Hirschfield, 13 Blatchf, 330. The complaint must embrace all the elements which the law recognizes in the offense, whether they are mentioned in the statute or come from it by construction. 1 Bish. Cr. Proc. § 626; Morse v. State, 6 Conn. 9; Pearce v. State, 1 Sneed, 63; Owen v. State, 5 Sneed, 493; State v. Jackson, 39 Conn. 229. The complaint must show that a legal and valid vote, and one authorized by the statute, was taken upon the question mentioned in the complaint. Ex parte Rodriguez, 39 Tex. 705. The vote would not be legal and valid unless, at the time of balloting, the check-list were used. The complaint does not allege that the checklist was used at the time said vote was taken, and hence does not set forth all that is necessary to constitute the offense. Pub. Stat. chap. 100, 5. selectmen respectively shall insert, in the warrant for the annual municipal election or town meeting, an article providing for a vote upon the question" of granting such licenses; that "the vote shall be by separate ballot, and, in taking it, the check-list shall be used." The defendant was convicted on a complaint charging him with giving more than one ballot on the question of licensing the sale of intoxicating liquors at a municipal election in the city of Lowell. The complaint cannot be sustained unless the statute, first above cited, includes such a ballot. In the latter statute, the words "annual municipal election," evidently mean the annual meeting for the election of municipal officers. The law provides for such a meeting in cities; and the statute intended to provide for a vote to be taken at that meeting. The annual meeting being established by law for the election of Mr. Harvey N. Shepard, Asst. Atty-officers, a vote required to be taken at the Gen., for the Commonwealth: The motion to quash was properly overruled. The complaint was sufficient; it substantially follows the language of the statute. Pub. Stat. chap. 7, § 57; Commonwealth v. Desmond, 122 Mass. 12. The objection that the complaint does not allege in what city licenses were or were not to be granted, is frivolous. The complaint does contain such an allegation. It was not necessary to allege that a "checklist" was used. The statutory provision for voting upon the question of the granting of licenses requires that "in taking said vote the check-list shall be used." There is a prima facie presumption that the requirements of such statutes are complied with by all officials, but in the present case there is positive, uncontroverted proof that a check-list was, in fact, used. The allegation that the ballot was "yes" and "no" instead of “yes” or “no” was manifestly a clerical error, and an error of so little import that it can afford no ground for quashing the complaint. Commonwealth v. McMahon, 133 Mass. 394; Commonwealth v. Randall, 4 Gray, 36. Further, since it is not essentially descriptive of the offense, or material to the jurisdiction, a difference between the allegation and proof cannot constitute a variance. Commonwealth v. Brailey, 134 Mass. 529. The court properly refused to rule that there was no evidence as to the use of a check-list. The evidence was positive on that point. It was not necessary, nor is it customary, that a separate check-list should be used for taking the vote upon the question of whether licenses to sell intoxicating liquors shall be granted. Pub. Stat. chap. 100, § 5. W. Allen, J., delivered the opinion of the court: Pub. Stat. chap. 7, § 57, provides that "whoever ** at any national, state, or municipal election * * * knowingly gives more than one ballot at one time of balloting at such election, shall be punished," etc. Pub. Stat. chap. 100, § 5, provides that "in a city which at its annual municipal election, or in a town which at its annual meeting, votes to authorize the granting of licenses for the sale of intoxicating liquors," etc., "the aldermen and meeting, though not in the election of officers, was described as a vote at the annual election. If the same meaning is to be given to the word "election" in the former statute, the act charged in the complaint comes within its purview, but, if it intends a ballot given in an election of national, state, or municipal officers, it does not include the act charged in the complaint. The natural import of the expression "balloting at a national, state, or municipal election," is balloting in the election of such officers, and it suggests only balloting for them. The apparent meaning of the statute might have been controlled by the more obvious, different meaning of the word "election," in the other statute, if the two statutes had been originally enacted at the same time, and if they related only to cities. But the consideration of the history and provisions of both statutes confirms the conclusion that the former statute intends only ballots cast for national, state, or municipal officers. Stat. 1813, chap. 63. § 2, provided that, “if any person at any meeting for the choice of town officers shall knowingly give in more than one vote or list for any officers or list of officers, when voted for at any such meeting, he shall forfeit," etc. Rev. Stat. chap. 4, 7, in the chapter "On the Manner of Conducting Elections," provides that "if any voter shall knowingly give in more than one ballot at any one time of balloting, at any election, he shall forfeit," etc. This is re-enacted in Gen. Stat. chap. 7, 29, in the chapter under the same title. Stat. 1874, chap. 356, repealed this statute, and enacted, under the title of "An Act to Punish Illegal Voting, and to Secure the Purity of Elections," that "whoever with fraudulent intent votes or attempts to vote upon any name other than his own, at any national, state, or municipal election, or whoever knowingly gives more than one ballot at one time of balloting at an election, shall be punished by imprisonment," etc. Stat. 1876, chap. 172, under the same title, re-enacted the statute with increased penalty. This included only ballots given in an election of officers, and was in force when Stat. 1881, chap. 54, first provided for voting in cities and towns, upon the question of licensing the sale of intoxicating liquors. When the public statutes were enacted in 1882, Stat. 1876, chap. 172, was re-enacted in the chapter “On of May, annually, it provided for voting at the annual meeting in towns. These words show an intention to fix the time and occasion when the voting should be had, and not to enact that ballots in cities upon the question of licensing should be taken to be ballots given at an election within the meaning of that word in the statute upon elections. We think that the contention of the defendant, that the ballot intended by the statute upon which the complaint is framed is a ballot for national, state, or municipal officers, and that the complaint charges no offense under the statute, is sustained. Betsy A. BATCHELLER v. the Manner of Conducting Elections and Returning Votes," chap. 7, 57; and Stat. 1881, chap. 54, was re-enacted in chap. 100, under the title " Of Intoxicating Liquors.' The natural import of the language of chap. 7, 57, and the obvious purpose of its original enactment and subsequent re-enactments, indicate that it was limited to ballots cast in the election of officers, and does not include all ballots upon any matter which might be voted upon by ballot at the annual meeting for the election of municipal officers in cities. It is very plain that the statute cannot include ballots cast at town meetings, except in the clection of officers. A ballot given at a municipal If the complaint is good as charging a miselection, cannot, by any license of construction, demeanor at common law (see Commonwealth be made to mean a ballot given at an annual v. Silsbee, 9 Mass. 417), it was an offense of town meeting on a question of pledging the which the police court of Lowell did not have credit of the town, or of uniting it with another jurisdiction, and it is unnecessary to consider town, or of licensing the sale of intoxicating the objections to the sufficiency of the comliquors, or upon any matter of town concern plaint. which may be voted on by ballot. It is equally Exceptions sustained. clear that the Legislature could not intend by the words balloting at such elections," in chap. 7, 57, to include balloting on the question of licensing the sale of intoxicating liquors in cities, and to exclude such balloting in towns. A construction which gives a different meaning to the words when applied to cities, from what they have when applied to towns, is equally inadmissible with a construction which includes ballots given at a town meeting upon other matters than elections. This construction is confirmed by a reference to the statutes regarding voting by cities and towns, upon allowing sales of intoxicating liquor therein. When Stat. 1869, chap. 415, prohibiting sales, was in force, Stat. 1870, chap. 389, § 2, authorized sales of ale, porter, strong beer, and lager beer; § 3 was in these words: "The inhabitants of any city or town may, on the first Tuesday of July next, and thereafter on the first Tuesday of May, annually, vote that no person shall be allowed to sell ale, porter, strong beer, or lager beer, in which case the sale of such liquors in such city or town is prohibited." Stat. 1871, chap. 334, repealed these sections and substituted other provisions; 2 authorized a city or town to vote on the first Tuesday of July, then next, and thereafter, annually, on the first Tuesday of May, that any person might sell or manufacture ale, porter, strong beer, or lager beer therein: § 3 provided that meetings for the purpose should be notified, warned, and held, in the same manner as meetings for the choice of municipal officers; that the meetings should be kept open at least two hours; that the check-list should be used, and the vote should be by ballot. This special meeting was clearly not an "election" within the meaning of that word in the statute, making penal the giving of more than one ballot at any election. Stat. 1871, chap. 334 was repealed by the effect of Stat. 1875, chap. 99, ON Action of contract on a policy of fire in which provided for the granting of licenses, for the sale of intoxicating liquors, by the mayor and aldermen of cities and the selectmen of towns. Stat. 1881, chap. 54, which prohibited the granting of such licenses, except in cities and towns which voted to authorize them, provided for a vote in the manner provided for in Stat. 1871, chap. 334; except that instead of requiring a special meeting on the first Tuesday COMMERCIAL UNION ASSURANCE CO. surance upon a schoolhouse. The defense was Plaintiff was the wife of Horace Batcheller of Sutton. Prior to September, 1875, a schoolhouse in School District No. 7 in Sutton was Johnson's land, he would build the same for $748, and would give the district the land. While the building was in process of con purchased the land upon which the schoolhouse was located, from said Johnson, and took a deed to himself, at or about the same time causing a deed to School District No. 7 to be prepared by the same scrivener. This latter deed was never delivered, but the scrivener and others testified that Batcheller said he should deliver the deed if the school district continued, but that if the school districts were abolished, and the town became charged with the main tenance of schools, he should not deliver the deed. burned, and the school was thereafter held in the house of plaintiff's husband. Several lawful meetings of the district were held in regard to building a new schoolhouse, which culmi-struction, and on April 26, 1876, Batcheller nated in a vote to let the contract for building a schoolhouse to Horace Batcheller for the sum of $748, he being the lowest bidder. A contract was duly entered into between the district and Batcheller, dated February 28, 1876, which provided that said Batcheller was to grade the lot agreed upon by the district for the site of the schoolhouse, to put in foundations, furnish the underpinning, and door-steps, furnish all the material, etc., and finish in good, substantial, and workmanlike manner, upon the site designed by said committee, a schoolhouse for said district; the materials to be furnished and schoolhouse built, agreeably to plans and specifications annexed and made a part of the agreement; the whole to be finished and completed before May 15, 1876. February 26, 1876, it was voted, on motion of Horace Batcheller, to get the building insured as soon as completed. At the time of making the contract, the site of the schoolhouse had not been agreed upon, and subsequently, on March 16, 1876, at the special request of Batcheller, it was voted at a lawful meeting "to locate the lot on P. Johnson's land west of Widow Kelly's," this being a site near the house of Horace Batcheller and specially advocated and pressed upon the district by him. The schoolhouse was constructed on such land, and according to contract on firm and permanent foundation, set in the earth, and not on posts or wooden blocks. Batcheller was paid the contract price ($748) on or before May, 16, 1876, and the building was thereafter occupied by the district until the district was terminated by the general Act of the Legislature abolishing school districts, in 1882; after which the town of Sutton occupied the building uninterruptedly for the regular terms of school, including the term ending the latter part of February, 1884. There was considerable difficulty in settling matters with Batcheller in full, he having claimed a large sum of money for extra work, etc.; but in 1877, on the adjustment of other matters, Batcheller gave the following receipt: 'South Sutton, May 16, 1876. Received of Edwin H. Leaver, Treasurer for School District No. 7, $748 in full for building a schoolhouse according to contract and specifications thereto annexed. Horace Batcheller.' March 5, 1881, at a legal meeting at which Mr. Batcheller was present and took a part in the discussion of the question, it was voted to raise $25 for insurance and repairs on this schoolhouse building; and subsequently Batcheller had a conversation with one Morse in regard to calling a new meeting to change the insurance company, but such meeting was not called. At the time Batcheller was advocating the change of location of the schoolhouse to the site where it was finally built, he was not the owner of the land upon which the house was built. The evidence tended to show that he made a proposition in a meeting, and also to the building committee, that, if they would change the location and locate the schoolhouse upon After the conclusion of school in February, 1884, Batcheller took possession of the schoolhouse, locked it up, moved the furniture therefrom, and on March 4 thereafter advertised it for sale at public auction. On the same March 4, he effected the insurance in question with the defendant company "ou his new frame schoolhouse building size 24 x 34 feet, posts 10 feet." A bill in equity was filed by the district, seeking to restrain Batcheller from interfering with the schoolhouse, alleging that the district owned the same and seeking to compel him to specifically perform his agreement to convey the land upon which it stood to the town. On the hearing for a preliminary injunction, April 4, 1884, an injunction pendente lite was granted. On the evening of the same day Batcheller replaced the furniture in the building, and early the next morning it was burned to the ground. The bill in equity by the district was subsequently dropped, and a decree was entered "bill dismissed.' The plaintiff in this action obtained title March 21, 1884, to the premises in question, from her husband, through an intermediary, and the policy was in due form assigned to her. It appeared that the insurance which the district voted to procure on motion of Batcheller in 1875, was procured for five years in the Worcester Mutual, and was renewed at the end of that five years by the district, and canceled by that company in consequence of some litigation in which Batcheller, in 1884, sought to recover from the school district in one suit, and from the town in another, rent for the schoolhouse. It was offered to be shown by the defendant that the town insured the schoolhouse building in the Fitchburg Mutual Insurance Company at that time, and has since been paid by the said company insurance on the building. This evidence so offered was ruled out by the court, and the defendant excepted. The defendant claimed that upon these facts there was a question for the jury whether or not there was any such agreement between Batcheller and School District No. 7, as made the schoolhouse the personal property of the district while Batcheller held the title to the land, or until the time of the fire. The court being of the opinion that upon all the facts offered in evidence, the jury would not be justified in finding that the schoolhouse was personal property, as between Batcheller and the town, ruled that there was an insurable interest in the plaintiff, she being the legal owner of both the land and the schoolhouse at the time of the assignment of the policy to her, |