337 Mass. 146, 148 N. E. 2d 277 Supreme Judicial Court of Massachusetts, Middlesex



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337 Mass. 146, 148 N.E.2d 277

Supreme Judicial Court of Massachusetts, Middlesex.

Agnes POULIN et al.
v.
H. A. TOBEY LUMBER CORP.

Argued Feb. 6, 1958.


Decided March 5, 1958.

Pedestrian's action of tort for personal injuries and by her husband for consequential damages, as result of pedestrian, while walking on sidewalk, being struck by a piece of lumber which fell from a passing truck owned by defendant and being operated by his employee on fefendant's business. The First District Court of Eastern Middlesex, Thomas E. Key, J., found for plaintiffs and upon report the Appellate Division vacated finding and ordered judgments for defendant and plaintiffs appealed. The Supreme Judicial Court, Cutter, J., held that where testimony showed that as truck turned corner rope snapped and lumber fell from truck, evidence was sufficient to show situation from which negligence could be inferred.


Order of Appellate Division reversed, judgments to be entered on findings of First District Court of Eastern Middlesex.

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Where action of tort was brought by pedestrian for personal injuries received by her when she was struck by a piece of lumber which fell from a passing truck while pedestrian was walking on sidewalk, and police officer's report stating that truck operator had said that rope holding load of lumber snapped was admitted generally and apparently without objection, it was entitled to full probative force as a statement of circumstances even if upon objection it might have been excluded as not binding truck owner as an admission.


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Where pedestrian, while walking on sidewalk was struck by a piece of lumber falling from truck being driven on street, in order to recover for personal injuries she was not required to exclude all causes except the defendant's negligence, and it was sufficient if upon all the evidence there was greater likelihood that the accident was due to defendant's negligence rather than some other cause.


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In action by pedestrian for personal injuries and by her husband for consequential damages as result of pedestrian being struck by piece of lumber falling from truck while pedestrian was walking on the sidewalk, where testimony showed that as truck was proceeding along rope snapped and load spilled, evidence was sufficient to show situation from which negligence could be inferred.


*147 **277 Cornelius R. Rosdahl, Malden, for plaintiffs.

William J. Conboy, West Roxbury, for defendant.


Before *146 WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.


CUTTER, Justice.



This is an action of tort brought in a District Court by Mrs. Poulin for personal injuries to her and by her husband for consequential damages. She was walking on the sidewalk on Exchange Street, Malden, when she was struck by pieces of lumber which fell from a passing truck and injured her. A demand by the plaintiffs under G.L.(Ter.Ed.) c. 231, § 69, as appearing in St.1946, c. 450, for admission of material facts, established that at the time of the accident the defendant's truck was being operated by an employee of the defendant on the defendant's business. There was admitted in evidence a report of a conversation between a police officer and the **278 operator of the truck in which the operator ‘said he had made a left turn from Commercial Street into Exchange Street when his front rope holding a load of lumber snapped and spilled the lumber over the street and sidewalk,’ knocking down a pedestrian ‘by the flying lumber.'
The defendant requested the trial judge to rule that the ‘evidence is insufficient to warrant a finding that the defendant was negligent.’ The ruling was refused and the judge found for the plaintiffs. Upon report, the Appellate Division vacated the finding and ordered judgments for the defendant. The decision held that the case was not one which warranted a finding of negligence.
[1] The police officer's report was admitted generally and apparently without objection that it was hearsay. It is entitled to full probative force as a statement of the circumstances (DuBois v. Powdrell, 271 Mass. 394, 397-398, 171 N.E. 474; Pataskas v. Judeikis, 327 Mass. 258, 260, 98 N.E.2d 265) even if upon objection it might have been excluded as not binding the defendant as an admission. Compare Parsons v. Dwightstate Co., 301 Mass. 324, 327, 17 N.E.2d 197, 118 A.L.R. 1099; Ferguson v. Ashkenazy, 307 Mass. 197, 203, 29 N.E.2d 828; Barrett v. Wood Realty, Inc., 334 Mass. 370, 374, 135 N.E.2d 660.
*148 From the evidence the trial judge was warranted in finding that a truck carrying a load of lumber was driven around a corner with sufficient speed to cause a rope holding the lumber to break and the lumber to spill over the street and sidewalk with sufficient force to cause a piece of flying lumber to knock down Mrs. Poulin. From these facts, the trial judge reasonably could infer (a) that the lumber was improperly secured, or (b) that a defective or inadequate rope had been used, or (c) that the truck's speed was such that excessive centrifugal force was created, or (d) a combination of these circumstances. Obviously the truck and its contents were wholly within the control of the defendant and in no way within that of Mrs. Poulin. There was no evidence of contributory negligence.
[2] [3] ‘The plaintiff was not required to exclude all causes except the defendant's negligence and it was sufficient if upon the * * * evidence there was a greater likelihood that the accident was due to [its] negligence rather than to some other cause.’ See DiRoberto v. Lagasse, 336 Mass. 309, 145 N.E.2d 834, 836, and cases cited. The disintegration of a load of lumber, while being transported through the street by motor truck, with such violence as to produce the events described in the police report leads to a rational inference that it was due to the negligence of the defendant in one or more of the particulars suggested above. See Weiss v. Republic Pipe & Supply Corp., 335 Mass. 422, 140 N.E.2d 657, and cases there reviewed. It was open to the trial judge on the basis of his general experience to find that the contents of a lumber truck, loaded and secured with the care required prior to taking it through the public streets, do not come apart in such a manner. The plaintiffs might appropriately have attempted to prove in considerably more detail to circumstances attendant upon the accident, such as the loading of the truck, selection of the rope, and speed of the truck. Enough evidence, however, was introduced to show a situation from which negligence could be inferred. Washburn v. R. F. Owens Co., 252 Mass. 47, 54-55, 147 N.E. 564; See Graham v. Badger, 164 Mass. 42, 47, 41 N.E. 61 (failure of splice in rope); *149 Doherty v. Booth, 200 Mass. 522, 525-526, 86 N.E. 945 (broken rope); Golden v. Mannex, 214 Mass. 502, 504, 101 N.E 1081 (break in cable); Tierney v. Merchants Steam Lighter Co., 214 Mass. 540, 541, 102 N.E. 66 (rope breaking, defects in which could have been discovered by ordinary inspection); Gangi v. Adley Express Co. Inc., 318 Mass. 762, 764, 63 N.E.2d 897 (truck crashing into house after turning corner); **279 McKnight v. Red Cab Co., 319 Mass. 64, 65-66, 64 N.E.2d 433 (unexplained opening of taxi door); Pelland v. D'Allesandro, 321 Mass. 387, 388-389, 73 N.E.2d 590 (unexplained rolling of a parked automobile). This is not like a collision between vehicles upon a public way from which no inference of negligence may be drawn. Compare Morton v. Dobson, 307 Mass. 394, 398, 30 N.E.2d 231. Compare also Mucha v. Northeastern Crushed Stone Co. Inc., 307 Mass. 592, 595, 30 N.E.2d 870 (no inference of negligence in selection of a piece of timber to be drawn merely from the fact that it broke causing injury). As we view the record, this is not like Gilmore v. Kilbourn, 317 Mass. 358, 363, 58 N.E.2d 143 (breaking wires on baled hay), where it was equally open on the evidence to find that accident occurred, during handling, in which the then plaintiff participated, because of circumstances wholly unascertained as from a cause for which the then defendant was responsible. Compare also Long v. Kaplan, 335 Mass. 94, 138 N.E.2d 600.
Order of Appellate Division reversed.
Judgments to be entered on the finding of the First District Court of Eastern Middlesex.

Mass. 1958


POULIN v. H. A. TOBEY LUMBER CORP.
337 Mass. 146, 148 N.E.2d 277

END OF DOCUMENT







FOR EDUCATIONAL USE ONLY
M.G.L.A. 85 § 36

Massachusetts General Laws Annotated Currentness

Part I. Administration of the Government (Ch. 1-182)

Title XIV. Public Ways and Works (Ch. 81-92B)

Chapter 85. Regulations and by-Laws Relative to Ways and Bridges (Refs & Annos)

§ 36. Construction and loading of vehicles to prevent dropping of load on way; penalty


No person shall drive or move a motor vehicle on any way, as defined in section one of chapter ninety, nor shall the owner or bailee of any vehicle require or permit the same to be driven or moved on any such way, unless such vehicle is constructed or loaded so as to prevent any of its load from dropping, sifting, leaking or otherwise escaping therefrom, and, if it is loaded with sand, gravel, loam, dirt, stone, rubbish or debris that could fall on other vehicles or on the highway and create litter or potential hazards to other vehicles, unless its load is fully and adequately covered. This section shall not prohibit the dropping of sand for the purpose of securing traction, or the sprinkling of water or other substance on such a way in cleaning or maintaining the same. Whoever violates the provisions of this section shall be punished by a fine of not less than fifty nor more than two hundred dollars.

CREDIT(S)

Added by St.1951, c. 303. Amended by St.1961, c. 281; St.1962, c. 160; St.1965, c. 518; St.1973, c. 498; St.1982, c. 217.

HISTORICAL AND STATUTORY NOTES

2005 Main Volume

St.1951, c. 303, was approved May 8, 1951.

St.1961, c. 281, approved March 24, 1961, inserted the words, “nor shall the owner or bailee of any vehicle require or permit the same to be driven or moved on any such way”, and imposed the penalty.

St.1962, c. 160, approved Feb. 27, 1962, towards the beginning of the section substituted “No person shall drive or move a vehicle” in lieu of “No vehicle shall be driven or moved,” and increased the penalty from not more than $10 to not less than $10 nor more than $50.

St.1965, c. 518, approved June 1, 1965, struck out the former first sentence and inserted two sentences in lieu thereof.

St.1973, c. 498, approved July 2, 1973, in the third sentence, substituted “one hundred” for “fifty”.

St.1982, c. 217, approved July 1, 1982, in the first sentence, substituted, “, gravel, loam, dirt, stone, rubbish or debris that could fall on other vehicles or on the highway and create litter or potential hazards to other vehicles,” for “or gravel”, and, in the third sentence, substituted “fifty nor more than two hundred” for “ten nor more than one hundred”.

LIBRARY REFERENCES

2005 Main Volume

Automobiles 15.

Highways 182.

Westlaw Topic Nos. 200, 48A.



C.J.S. Highways § 244.

C.J.S. Motor Vehicles §§ 43 to 44, 829 to 830.


M.G.L.A. 85 § 36, MA ST 85 § 36

Current through Chapter 438 of the 2008 2nd Annual Sess.

(C) 2008 Thomson Reuters/West


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315 Mass. 323, 52 N.E.2d 562

Supreme Judicial Court of Massachusetts, Bristol.

KRALIK
v.


LE CLAIR.
SAME
v.
CONSOLIDATED MOTOR LINES, Inc.
HOWARD
v.
LE CLAIR.
SAME
v.
CONSOLIDATED MOTOR LINES, Inc.

Dec. 29, 1943.

Report from Superior Court, Bristol County; J. Walsh, Judge.
Actions by Edward Kralik against William H. Le Clair, by Edward Kralik against Consolidated Motor Lines, Inc., and by Leslie O. Howard against William H. Le Clair and by Leslie O. Howard against Consolidated Motor Lines, Inc., for injuries sustained when a tractor-trailer left the highway. Verdicts under leave reserved were entered for each defendant, and the cases were reported by the trial judge to the Supreme Judicial Court with a stipulation as to entry of judgment for plaintiffs in the amounts awarded by the jury, if there was error, otherwise that judgment was to be entered for defendants.
Judgment for defendants in accordance with the stipulation.

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Evidence of violation of a penal statute, ordinance, rule, or regulation does not make out actionable negligence unless the violation is shown to have been actually a proximate cause contributing to the injury suffered, and it may be only a circumstance and not a cause and the question is generally one of fact.


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The primary cause may be the proximate cause, provided it continues to be efficiently, actively, and potently operative, although successive subsidiary instrumentalities may co-operate to produce the final result.


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Where plaintiff driver of a tractor trailer saw defendant's trailer standing about two feet on the pavement when he was 102 feet from defendant's trailer, and plaintiff was traveling at an excessive speed on a curve where his view was obstructed, plaintiff's tractor trailer was excessively long, and he could have stopped within 50 feet at 20 miles per hour, and plaintiff's trailer struck defendant's side of the highway, defendant's trailer was merely a condition and not a contributing cause of plaintiff's injuries, notwithstanding trailer, and plaintiff's tractor struck trees at plaintiff as he rounded curve saw a truck coming in the opposite direction up alongside of trailer. G.L.,Ter.Ed., c. 90, § 17, and § 19, as amended by St.1936, c. 388.

**563 Before *323 FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

G. H. Young, of New Bedford, for plaintiff.

S. Perman, of Worcester, for defendant.

COX, Justice.



Verdicts under leave reserved were entered for each defendant and the cases were reported by the trial judge to this court, with a stipulation as to entry of judgments*324 for the plaintiffs in the amounts awarded by the jury, if there was error, otherwise that judgment was to be entered for the defendant in each case. The judge ruled, without objection, that the defendant corporation was engaged in the transportation of property in interstate commerce, and it was agreed that, on the morning of the accident, the defendant LeClair was ‘its employee engaged to operate the said motor vehicle.’
The jury could have found the following facts: The accident occurred at about 11:30 in the morning of April 1, 1941, on one of our State highways. The weather was clear and the road was dry. The two cement lanes of the highway are twenty feet wide, and on either side there is a gravel shoulder. The accident occurred on a straightaway south of a gradual curve that bears to the right or west for south bound traffic, and the shoulder which is about three feet wide at this point is flanked by a growth of trees. LeClair, who was driving a tractor trailer to the south, stopped the equipment off the highway as far as he could go, to go to the ‘toilet’ leaving the equipment unattended for from five to eight minutes. The plaintiff Kralik was also operating to the south a tractor trailer, forty-two feet long and eight feet wide. As he approached the curve he could see some of the road at all times but could not see around the ‘bend.’ As he got around the curve he saw the defendants' equipment one hundred two feet ahead with about two feet on the pavement, and another truck ‘pulling up alongside of’ it from the opposite direction. He applied his brakes, got over on the shoulder, applied the brakes again ‘as the trailer started to **564 slip,’ and tried to straighten it out before he reached the ‘woods.’ A tree knocked a door off the cab, knocked the cab off the chassis, and broke the air line releasing all air from the brakes, and the ‘three occupants' were thrown off the seat into varying positions inside and outside the cab.
Kralik testified that before he reached the curve the speed of his equipment was between thirty-five and forty miles an hour and that he had been travelling at that speed for several miles; that as he was proceeding around the *325 curve, he slowed down to twenty miles an hour; that his speed when he first saw the defendants' truck was twenty miles an hour; and that, under all the conditions existing at the time, at a speed of twenty miles an hour, he could stop in a distance of fifty feet.
Leslie O. Howard is a plaintiff. The only possible references to him in the record are that the jury returned a verdict for him, and that ‘Leslie Howard, called by the Plaintiff, substantially corroborated the testimony of Edward Kralik, and on cross examination testified that the brakes on the Kralik vehicle were applied for a distance of one hundred to one hundred and fifty feet.’ The parties have assumed that the Howard who testified was a plaintiff.
A witness, called by the defendants, testified that he had been following the Kralik equipment for five miles; that its speed averaged from twenty miles an hour on ‘up-grades' to thirty-five or forty at other times; that he had no way of knowing what its speed was as it was ‘rounding the further end of the curve’; that his (the witness's) speed was then ‘about fifteen miles an hour’; and that Kralik was travelling around the curve at a speed greater than twenty miles an hour.
The following regulations of the interstate commerce commission were in evidence. Section 2.01 provides, ‘Every motor carrier and his or its officers, agents, employees, and representatives, concerned with the transportation of persons or property by motor vehicle shall comply with the following regulations and shall become conversant therewith.’ Section 2.22 provides, ‘No motor vehicle shall be stopped, parked, or left standing, whether attended or unattended, upon the traveled portion of any highway outside of a business or residence district, when it is practicable to stop, park, or leave the motor vehicle off the traveled portion of such highway. When conditions make it impracticable to move the motor vehicle from the traveled portion of the highway, every effort shall be made to leave all possible width of the highway opposite such standing motor vehicle for the free passage of other vehicles, and care taken to provide a clear view of such stopped motor vehicle as *326 far as possible to the front and rear.’ The following rules and regulations of the department of public works also were in evidence: ‘Section 1. Definitions * * * (b) ‘Roadway’, that portion of a highway between the regularly-established curb lines or that part, exclusive of shoulders, improved and intended to be used for vehicular traffic. * * * (g) ‘Parking’, the standing of a vehicle, whether occupied or not otherwise than temporarily, for the purpose of and while actually engaged in loading or unloading, or in obedience to an officer or traffic signs or signals, or while making emergency repairs, or, if disabled, while arrangements are being made to move such vehicle.” Section 14. ‘Parking. No person shall park a vehicle in any of the following places * * * (d) Upon the roadway in a rural or sparsely settled district. * * * (f) Upon any roadway where the parking of a vehicle will not leave a clear and unobstructed lane at least twenty feet wide for passing traffic.’ A penalty is provided for violation of the rules and regulations of the department (section 25). We assume that violation of the rules and regulations of the department by LeClair could have been found.
[1] [2] [3] [4] [5] The violation of a penal statute or of a valid ordinance, rule or regulation is evidence of negligence as to all consequences that were intended to be prevented. Baggs v. Hirschfield, 293 Mass. 1, 2, 3, 199 N.E. 136, and cases cited; Follansbee v. Ohse, 293 Mass. 48, 52, 199 N.E. 387, and cases cited; Leveillee v. Wright, 300 Mass. 382, 385-387, 15 N.E.2d 247. Evidence of such violation, however, does not make out actionable negligence unless the violation is shown to have been actually a proximate cause contributing to the injury suffered. It may be only a circumstance and not a cause, and the question is generally one of fact. Leveillee v. Wright, 300 Mass. 382, 387-389, 15 N.E.2d 247, and cases cited. In Wallace v. Ludwig, 292 Mass. 251, page 255, 198 N.E. 159, 161, where there is a review of cases, it is said: ‘The result of these decisions is that the primary, **565 cause may be the proximate cause, provided it continues to be efficiently, actively and potently operative, although successive subsidiary instrumentalities may cooperate to produce the final result.’ But violation of such rules of conduct is regarded as the cause of injury only where the unlawful or forbidden *327 element in the conduct complained of, rather than that conduct viewed as a whole, is found to be the cause. Leveillee v. Wright, 300 Mass. 382, 387, 388, 15 N.E.2d 247, and cases cited. This last statement is based in part, at least, upon what was said by Knowlton, C. J., in Chase v. New York Central & Hudson River Railroad Co., 208 Mass. 137, 157, 158, 94 N.E. 377, 385, to the effect that, in determining whether an unlawful act is a direct and proximate cause of an injury, the tendency of the decisions in many other States is toward the establishment of the doctrine that, if there is an unlawful element in an act, which in a broad sense may be said to make the act unlawful, this will not preclude recovery ‘unless the unlawful element or quality of the act contributed to the injury, so that, if the act of a plaintiff may be considered apart from a certain unlawful quality that may enter into it, and if so considered there is nothing in it to preclude recovery, the existence of the unlawful quality is of no consequence unless in some way it had a tendency to cause the injury.’ A causal connection may nevertheless be found, either on the theory * * * that the negligence of the earlier wrongdoer remained a dangerous force until the negligence of the later wrongdoer concurred and combined with it to cause injury, or on the theory * * * that the earlier wrongdoer ought to have foreseen that his negligence would be followed by negligence of another resulting in injury, and consequently that in law the act of that other is the act of the original wrongdoer because it is the natural and probable consequence of his wrongdoing.' Morrison v. Medaglia, 287 Mass. 46, 49, 50, 191 N.E. 133, 134.
In the light of these governing principles we are of opinion that, upon the permissible findings in the cases at bar and also upon the evidence by which the plaintiffs are bound, the act of the defendant LeClair in leaving the truck where he did was a condition or circumstance and not a cause of the plaintiffs' injuries. Reference has already been made to the state of the record in so far as it relates to the plaintiff Howard. We assume that he was riding in the Kralik equipment. He ‘substantially corroborated the testimony’ of Kralik. It is not contended that he does not stand or fall upon that testimony, except in so far as his due care is concerned.*328 Just why, if ‘Leslie Howard’ was, in fact, the plaintiff Leslie O. Howard, he should be ‘called by the Plaintiff’ does not appear.
[6] The accident occurred at 11.30 in the morning of a clear day and the road was dry. Kralik saw the standing truck when he was one hundred two feet from it. He was travelling around the curve where his view of road traffic was obstructed, at a rate of speed that was in violation of G.L.(Ter.Ed.) c. 90, § 17. As far as appears, the length of his equipment brought it within the prohibitive provisions of G.L.(Ter.Ed.) c. 90, § 19, in the form appearing in St.1936, c. 388. He could have stopped within a distance of fifty feet, when travelling, as he said he was, at a speed of twenty miles an hour. He applied his brakes, got over on the shoulder which was rough and at a different elevation from the surface of the highway, and applied the brakes again as the trailer started to slip, and he tried to ‘straighten it out’ as he reached the woods. His tractor did not come in contact with the defendants' truck but his trailer did. Photographs which were in evidence show scraping marks on the left side of the Kralik trailer beginning at a point about one third of its length from the front corner and also a broken piece of strap iron. The damage to the tractor was caused by coming in contact with trees which were knocked over. In the circumstances, it cannot be said that the standing truck continued to be ‘efficiently, actively and potently operative’ (see Wallace v. Ludwig, 292 Mass. 251, 255, 198 N.E. 159, 161) as a cause of the plaintiffs' injuries. LeClair, as a reasonable man, was not required to foresee that what happened would happen. He was not bound to anticipate and provide against what is unusual and not likely to happen, or what, as is sometimes said, is only remotely and slightly probable. Falk v. Finkelman, 268 Mass. 524, 527, 168 N.E. 89. See Conrey v. Abramson, 294 Mass. 431, 433, 2 N.E.2d 203; Gagnon v. DiVittorio, 310 Mass. 475, 38 N.E.2d 629. The occupation of the road by the defendants' equipment, in the circumstances, was a condition and not a contributing cause of the injuries. **566 Falk v. Finkelman, 268 Mass. 524, 168 N.E. 89; Foschia v. First National Stores, Inc., 290 Mass. 90, 92, 194 N.E. 834; *329 Mulvaney v. Worcester, 293 Mass. 32, 34, 199 N.E. 405; Kelly v. Hathaway Bakeries, Inc., 312 Mass. 297, 299, 44 N.E.2d 654. See Wall v. King, 280 Mass. 577, 581, 182 N.E. 855; Burke v. Durland, 312 Mass. 291, 44 N.E.2d 655.
We have not overlooked the evidence that, as Kralik got around the curve, he saw another trailer tractor coming in the opposite direction and ‘pulling up alongside of’ the defendants' equipment.
The cases at bar are distinguishable from such cases as Milbury v. Turner Centre System, 274 Mass. 358, 362, 363, 174 N.E. 471, 73 A.L.R. 1070, Renaud v. New England Transportation Co., 286 Mass. 39, 45, 189 N.E. 789, and Leveillee v. Wright, 300 Mass. 382, 388, 389, 15 N.E.2d 247.
In accordance with the stipulation judgment is to be entered for the defendant in each case.
So ordered.

Mass. 1943


KRALIK v. LE CLAIR
315 Mass. 323, 52 N.E.2d 562

END OF DOCUMENT

FOR EDUCATIONAL USE ONLY
M.G.L.A. 231 § 85

Massachusetts General Laws Annotated Currentness

Part III. Courts, Judicial Officers and Proceedings in Civil Cases (Ch. 211-262)

Title II. Actions and Proceedings Therein (Ch. 223-236)

Chapter 231. Pleading and Practice (Refs & Annos)

Practice

Evidence




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