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his senses to avoid danger. He must not such circumstances as those described in the shut his eyes. If he has knowledge that a finding are not to be expected to be able from dangerous place exists, there can be no pre their seats to so perfectly control and guide sumption in his favor. He must exercise their horses and so accurately direct their care not to fall into it, and he is bound to heavily loaded trucks, that they will not make use of all the means of knowledge deviate at least several inches from a desired which are reasonably open to him." The fail course, and that drivers when their teams ure of a person to use and act upon his

pass each other under such circumstances knowledge of the perils to which he is expos must give their attention not only to the moed, when there is nothing to prevent or ex tions of their own horses, but those of the cuse him from doing so, is negligence. Nu other team. gent v. New Haven St. Ry. Co., 73 Conn.

With the knowledge of which the plain139–143, 46 Atl. 875. A person standing up

tiff was possessed, and that with which he on a sidewalk is bound, for the purpose of

was chargeable, he would not have been jus. avoiding injury, to exercise some degree of

tified in remaining seated upon the box where care with reference to what he knows to be

he was, upon the belief that these two teams the traffic in the roadway. Hayden v. Fair

would pass each other without hitting him, Haven & W. R. Co., 76 Conn. 355–362, 56 Atl.

if they met at the point where he sat. Ap613. One has no right to calculate close

parently he did not entertain such a belief, chances of avoiding injury and throw the

but remained where he was engaged in conrisk of failure on the other party. McCarthy

versation without thinking that the teams v. Consolidated Ry. Co., 79 Conn. 73–76, 63

would meet there and without considering Atl. 725.

where they would meet. He was negligent In the case before us the plaintiff was per

in so acting. He was in the full possession mitted to cross the bridge on foot in going to

of his faculties. He saw Kefford's team and from his work, but that did not amount

come onto the bridge from the west some to an invitation or a license to sit on this

time after he saw Cooper's coming onto it box on the top of the seven and a half inch

from the east, and while he heard the latter wide guard rail, and chat with the gate tend.

team aproaching him on the bridge. He er. The bridge belonged to the defendant,

knew, if the two teams continued to advance, and was for the use of teams. There was no

they must meet on the bridge, and a glance footpath on it, and persons who were permitted to cross it on foot were required to walk

or a moment's thought would have shown him in the roadway used by teams. The measure

that they would probably meet near him. ments of the bridge and of the tracks show

Instead of using his senses, as he should have that there was no place on the bridge where

done, to learn his danger and avoid it while a person could sit without occupying some

he could, he turned his back to the teams, part of the driveway, and that there was

and continued his chat with the gate tender no place outside of the gatehouse where even

and gave the teams no further attention. In the gate tender could sit without liability of

determining whether he was negligent, he being struck when a two-horse and a three

must be held to have been required to act horse team truck were passing each other op

as well upon what he should have known, as posite him. As the plaintiff was familiar

upon what he knew. The facts show that the with the bridge and its use, all these facts

trial court failed to require him to do so, were known or apparent to him. The fact and that it erred in not holding that the that he knew that one and two horse teams plaintiff's negligence essentially contributed had passed each other on the bridge without

to his injury. danger to one in his position, or that it was Having reached this conclusion, we are not barely possible, from the dimensions of the required to discuss the defendant's claim that bridge and the two trucks, for these two in finding Cooper guilty of negligence the teams to have passed each other at the point trial court evidently assumed the existence they did, without striking the plaintiff, does of certain distances in stated situations benot relieve the plaintiff from the charge of tween parts of the tracks and parts of the negligence. He knew that these were not the bridge, which are not reconcilable with the ordinary teams he had seen pass each other. measurements given in the finding. He is also presumed to have known what is There is error, and the case is remanded, a matter of common knowledge, that drivers with directions to render judgment for nomi. of such teams in passing each other under nal damages. The other Judges concurred.

(80 Conn. 86)

DECKER V. MANN. (Supreme Court of Errors of Connecticut. June

13, 1907.) 1. APPEAL-ERROR-QUESTIONS FOR REVIEW

FAILURE TO INSTRUCT-EVIDENCE NOT IN RECORD.

An assignment of error, on the ground of failure to instruct as to the legal effect of certain evidence, cannot be considered, where the record does not recite the evidence.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 2933.] 2. SAME-REQUESTS FOR OB NECESSITY OF INSTRUCTION.

An assignment of error, on the ground of failure to instruct as to the effect of certain evidence, cannot be considered, where it does not appear that the court was requested to instruct on that matter, or that a proper consideration of the evidence required such an instruction.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, $ 1309.) 3. SAME FAILURE TO ASSIGN PARTICULAR ERROR.

An assignment of error, on the ground of failure to instruct as to the legal effect of evidence tending to show that defendant had disputed the claims of plaintiff, is inadequate to raise the point that payment upon a disputed claim within six years before the bringing of the action would not suspend the running of the statute of limitations. 4. SAME - ASSIGNMENT OF ERRORS-GENERAL

ASSIGNMENT OF REFUSAL OF NUMEROUS INSTRUCTIONS.

Under Gen. St. 1902, $ 802, providing that the precise error claimed shall be specifically stated in the reason of appeal, a mere general assignment of error, in failing to charge as requested, is insufficient, where there were numerous requests to charge on different subjects.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, $ 3034.)

Appeal from Court of Common Pleas, Hartford County; John Coats, Judge.

Action by Louis Decker against Gottlieb Mann. From a judgment for plaintiff, defendant appeals. Affirmed.

A. S. Campbell, for appellant. M. Bacharach, for appellee.

tion. The assignment is clearly inadequate to raise the point, urged by the defendant's counsel that payments made upon a disputed claim within six years before the bringing of the action would not suspend the running of the statute of limitations,

The second assignment raises no question for consideration, because the record does not show that any evidence of an accord and satisfaction was offered upon the trial.

The third assignment of error does not comply with section 802 of the General Statutes of 1902, which requires that the pre cise error claimed shall be specifically stated in the reason of appeal. A mere general statement, as that the court erred in charging as it did, or in refusing to charge as requested, where, as in this case, there were numerous requests covering a number of different subjects, is insufficient. This court has repeatedly refused to consider claimed errors which were attempted to be raised by such general assignments of errors. Osborne v. Troup, 60 Conn. 485, 490, 23 Atl. 157; New England Merchandise Company v. Miner, 76 Conn. 674, 675, 58 Atl. 4; Chase v. Waterbury Savings Bank, 77 Conn. 295, 299, 59 Atl. 37, 69 L. R. A. 329; McAllin v. McAllin, 77 Conn. 398, 401, 59 Atl. 413; Farrell v. Eastern Machinery Company, 77 Conn. 484, 493, 59 Atl. 611, 68 L. R. A. 239, 107 Am. St. Rep. 45.

There is therefore no question of law properly raised on the record for our consideration.

There is no error. The other Judges concurred.

THAYER, J. The only errors claimed in the appellant's reasons of appeal are that the court erred in its charge, first, "in that it did not instruct the jury as to the legal effect of the evidence tending to show that the defendant, within six years before the commencement of the action, had disputed the claims of the plaintiff"; second, "in that it did not instruct the jury as to the legal effect of the evidence tending to show accord and satisfaction of the plaintiff's claim"; and, third, “in not charging the jury as requested.”

The evidence referred to in the first assignment of error is not recited in the record. It does not appear that the court was requested to instruct the jury as to its legal effect, or that a proper consideration of the evidence by the jury called for such instruc

(6 Pen. 306) TAYLOR V. GEORGE W. BUSH & SONS

CO. (Supreme Court of Delaware. May 6, 1907.) MASTEB AND SERVANT-INJURIES TO SERVANT -FELLOW SERVANTS.

Plaintiff was hired and paid from day to day as a helper on defendant's coal wagons. It was part of plaintiff's duty, when ordered by the stable boss, to assist in bedding the stalls; the drivers being required to throw out straw from the loft of the stable with which to do the bedding. On the night in question, after obtaining his pay from the office, plaintiff walked in a passageway in the stable yard to the stable to get his dinner pail, and as he walked near one of the stable doors a driver, without warning, threw a bale of straw from the loft. which fell on plaintiff and seriously injured him. Held, that the injury occurred at a time when the relation of master and servant was still subsisting, so that plaintiff was barred of recovery by the fellow servant rule.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, 88 150, 352, 353.]

Error to Superior Court, New Castle County.

Action by Lewis E. Taylor against the George W. Bush & Sons Company. From a judgment for defendant (61 Atl. 236), plaintifr brings error. Affirmed

Argued before NICHOLSON, Ch., and ror, but counsel on both sides practically SPRUANCE and BOYCE, JJ.

agreed that there is but one question before

this court; that is, whether the plaintiff was Franklin Brockson, for plaintiff in error.

a servant of the defendant at the time he was Christopher L. Ward and John P. Nields, for

injured. The counsel for the plaintiff, in his defendant in error.

elaborate and carefully prepared brief, ex

presses the whole of his contention in the NICHOLSON, Ch. This was an action on following words: “It is respectfully submitthe case, brought in the Superior Court in ted that the evidence shows that the plaintiff and for New Castle county by Lewis E. Tay. was not a servant of the defendant at the lor, the plaintiff, against George W. Bush & time he was injured; that he was injured by Sons Company, the defendant, for the recov gross negligence of the defendant, while he ery of damages for personal injuries. Under was on its premises at its invitation, and in the instruction of the court below the jury the exercise of due care and caution upon rendered a verdict in favor of the defendant; his part; that the privilege of going upon the plaintiff having declined to accept a non the defendant's premises was a mere gratuity, suit. Upon this verdict judgment was en and not extended to him by any contract of tered, and a writ of error taken by the service." The ground upon which the plainplaintiff. In the court beluw the motion for tiff's counsel bases his contention that the a nonsuit was based upon the ground that it plaintiff was not, at the time he was injured, appeared from the evidence of the plaintiff a fellow servant of Blake, the servant of that he was a servant of the defendant when the defendant who dropped the bale of straw he was injured, and that his injury was due upon him, in consequence of which he was into the negligence of a fellow servant.

jured, is that at that time he had finished his The facts in the case are in substance as day's work and was off duty. follows: The plaintiff was employed by the The question raised is an interesting and defendant company as one of the helpers on important one, and involves an examination the defendant's coal wagons. He had been so and analysis of the reasoning of the authoreinployed for about three months, his hiring ities which have established what is called being from day to day, and he lived about 14 the "fellow servant" or "common employblocks from the defendant's place of busi ment" doctrine, in order to determine its apness and stables. The plaintiff and other plication to such a state of facts as is preservants of the defendant, "drivers" of coal sented in this case, or to ascertain whether wagons and "helpers," were in the habit of the facts and circumstances of this case are bringing their dinners each day, by permis within the scope of the doctrine. A great sion of the defendant, to the stables and sta number of authorities have been cited by ble yard of the defendant, and of there eating counsel on both sides, who have furnished their noonday meal, either in the stable or the court with very full briefs. No cases stable yard, and leaving their dinner pails in have been cited from our own Reports, howthe stable until the end of the day's work, ever, and the particular question involved when they carried them home. The plain comes before us as a case of first impression tiff's duties included some occasional work in this state. about the stables, when so ordered by the The opinion of Chief Justice Shaw in the stable boss, such as putting straw in the stalls case of Farwell v. Boston & Worcester R. from the loft above, etc. On the 7th of April, Corp., 4 Metc. (Mass.) 49, 38 Am. Dec. 339 1903, about 6 o'clock in the evening, the plain- (1842), is unquestionably the “fountain head" tiff, after receiving his pay slip and money of the "fellow servant" or "common employat the company's office, which was situated ment" doctrine, as Pollock states in his work about a block from the company's stables, on Torts. Justice Harlan quotes and adopts walked to the stable yard, as he was in the the language of this opinion in the case of habit of doing, to get his dinner pail. As he Hough v. Railway Co., 100 U. S. 215, 25 L. was walking on a passageway inside the Ed. 612 (1879), when for the first time it is company's stable yard, near a door of one of explicitly laid down by our Supreme Court, the stables, on his way into the stable to get and in the leading English case of Bartonshis dinner pail, a servant of the defendant hill Coal Company V. Reid, 3 Macq. H. L. by the name of Blake, one of the defendant's Cases, 266 (1858), that being the case in drivers, threw a bale of straw out of the which the House of Lords first settled the stable loft, which fell upon and seriously in doctrine for both England and Scotland, jured him. One of Blake's duties was to get Lord Chancellor Cramworth also adopted straw out of the loft to bed his horses with, and paid homage to this opinion of Chief and he generally threw it out of the window ; Justice Shaw. In order that we may have but there was a hole in the back part of the this doctrine before us in a most authoritastable loft, and it was sometimes thrown tive form, I will quote from Justice Harlan's down in that way. The plaintiff bad no no opinion at length. tice or warning that the straw was about to “ 'The general rule,' said Chief Justice be thrown down.

Shaw, in Farwell V. Boston & Worcester There are a number of assignments of er Railway Corporation, 4 Metc. (Mass.) 49, 33

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Am. Dec. 339, resulting from considerations fendant, within the scope of the doctrine.
as well of justice as of policy, is that he who In a case where, as in the one before us, no
engages in the employment of another for the question was raised but the single one wheth-
performance of specified duties and services, er or not the person injured, the plaintiff, was
for compensation, takes upon himself the at the time of the injury a servant of the de-
natural and ordinary risks and perils inci fendant, within the scope of the doctrine.
dent to the performance of such services, and Justice Cochran, of the United States District
in legal contemplation the compensation is Court (Dishon v. Cincinnati, N. 0. & T. P.
adjusted accordingly; and we are not aware Ry. Co., 126 Fed. 197), argues as follows, after
of any principle which should except the per quoting from Justice Harlan a section of the
ils arising from the carelessness and negli above and from Pollock on Torts a statement
gence of those who are in the same employ- of the doctrine and the reason for it, es-
ment. These are perils which the servant is sentially the same as that I have quoted from
likely to know, and against which he can as Chief Justice Shaw:
effectually guard as the master. They are “Serious question has been made as to
perils incident to the service, and which can whether this reasoning and the fellow serv-
be as distinctly foreseen and provided for in ant doctrine based upon it are sound; but
the rate of compensation as any other.' To that this reasoning is the true basis of that
prevent misapprehension as to the scope of doctrine is not now disputed by any one. As
the decision, he deemed it necessary, in a Prof. Pollock says, it has prevailed in the
subsequent portion of his opinion, to add: authorities.' This being so, this reasoning
“We are far from intending to say that there should be given its full force. There should
are no implied warranties and undertakings be no sticking in the bark at any point. It
arising out of the relation of master and sery should be held that the servant assumes all
ant. Whether, for instance, the employer the risks he runs, excluding that of the neg-
would be responsible to an engineer for the ligence of the master, and including that of
loss arising from a defective or ill-constructed the pure negligence of co-servants, whenever
stcam engine; whether this would depend on doing anything contemplated by his contract
an implied warranty of its goodness and suf of employment; i. e., which under that con-
ficiency, or upon the fact of willful miscon tract it is his duty or he has a right to do.
duct or gross negligence on the part of the In other words, it should be held that the as-
employer, if a natural person, or of the super sumption of risk by the servant is as broad
intendent or immediate representative and and sweeping as the scope of action on his
managing agent, in case of an incorporated part required or authorized by the contract.
company—are questions on which we give The risk of the servant goes with him where-
no opinion. As to the general rule, very ever he goes under his contract of employ-
little conflict of opinion is to be found in the ment, and the assumption should accompany
adjudged cases, where the court has been at the risk. There is no good reason for hold-
liberty to consider it upon principle, uncon ing that the assumption of risk exists when
trolled by statutory regulations. The dif the servant is doing one thing required of
ficulty has been in its practical application to him by the contract, and does not exist when
the special circumstances of particular cases. he is doing another thing so required, or that
What are the natural and ordinary risks in it exists when he is doing a thing required
cident to the work in which the servant en of him by the contract, and does not exist
gages; what are the perils which, in legal when he is doing a thing which he is simply
contemplation, are presumed to be adjusted authorized to do by the contract. Any stop-
in the stipulated compensation; who, within ping short, therefore, of making the assump-
the true sense of the rule, or upon grounds tion by the servant of the current risks of his
of public policy, are to be deemed fellow sery employment as wide as the action on his part
ants in the same common adventure or un contemplated by the contract, discredits the
dertaking-are questions in reference to principle and reasoning on which the fellow
which much contrariety of opinion exists in servant doctrine is based, and that doctrine
the courts of the several states. Many of the itself. Hence it is never a test of the appli-
cases are very wide apart in the solution of cation of the fellow servant doctrine to any
those questions."

given case whether or not the injury was re-
It is obvious that we are not concerned with ceived by the servant during working hours,
the limitations and exceptions I have cited or when he was at work after working hours.
for the purpose of giving a more complete The sole test of its application thereto is
statement of the doctrine. Upon each of whether, at the time of the injury, the sery-
these limitations or exceptions, and upon oth ant was doing something which it was his
ers as well that are not enumerated, there duty, or he had a right to do under the con-
are a host of decisions and conflict of author tract. If he was so acting, the doctrine ap-
ity; but, as appears from the statement of plies; if not, it does not apply. I think this
the case before us already made, the only test is clearly deducible from the relevant
question for this court to decide is whether authorities."
the plaintiff, at the time he received the in The learned judge then cites and analyzes
jury, was or was not a servant of the de a great array of authorities in a very lengthy

and interesting opinion, quoting very freely was injured after his work was over by cogfrom most of the cases, and discriminating wheels in a closet where he had gone for his those cited in support of the plaintiff's con coat. In Boyle v. Columbian Fireproofing tention. His conclusion was that the injuries Co., 182 Mass. 93, 64 N. E. 726, the employé received by the decedent of the plaintiff, Dis was injured on an elevator on which he was hon, were caused by the negligence of a fel going down, with other workmen, to dinner. low servant, and therefore the defendant In the last three cases it was held that the company was not liable. This list of authori relation of master and servant existed, with ties seems to be absolutely exhaustive. No the consequence of imposing liability on the relevant case has been cited by counsel in the employer, whose negligence caused the acciargument of the present case not cited and dent, and there was no question of negligence analyzed in the opinion of Judge Cochran, on the part of a fellow servant. nor have I been able to find any, and it seems Brydon v. Stewart, 2 Macq. H. L. Cases, unnecessary, if not superfluous, to extend the 30, was a Scotch case which went up to the limits of this opinion by any wide review of House of Lords, and was afterwards quoted authorities.

and analyzed by Lord Cramworth in the Counsel for the defendant in their admira leading English case, which I have cited ble brief have selected and grouped and an above, of Bartonshill Coal Company v. Reid, alyzed the most relevant and important cases, 3 Macq. H. L. Cases, 266. In Brydon v. not only those directly supporting their con Stewart the employés were injured in being tention, but those cited by counsel for the drawn out of a mine after they had struck plaintiff. Of these Gillshannon v. Stony

work, and the master was held liable in that Brook R. R. Co., 10 Cush. (Mass.) 228, Ion case (there being no question of negligence of none v. Railroad, 21 R. I. 452, 44 Atl. 592, a fellow servant), because the relationship of 46 L. R. A. 730, 79 Am. St. Rep. 812, Seaver

master and servant was still subsisting. The v. Boston and Maine R. R. Co., 14 Gray facts in the case of Dishon v. Cincinnati, N. (Mass.) 466, Gilman v. Eastern R. R. Co., 0. & T. P. Ry. Co., already discussed and 10 Allen (Mass.) 233, 87 Am. Dec. 635, Mc quoted, involved an application of the prinGuirk v. Shattuck, 160 Mass. 45, 35 N. E. ciple deduced from the cases cited by the 110, 39 Am. St. Rep. 454, Rosenbaum v. St. learned judge in that case, a few of which Paul R. R. Co., 38 Minn. 173, 36 N. W. 447, we have considered above, which it is not 8 Am. St. Rep. 653, Wright v. North Hamp incumbent upon us in the present case eitber ton R. R. Co., 29 S. E. 100, 122 N. C. 852, to approve or disapprove. In such a case as and Bowles v. Ind. R. R. Co., 62 N. E. 94, the one presented there can be no doubt of 27 Ind. App. 672, 87 Am. St. Rep. 279, are the applicability of the doctrine as laid down

of by the authorities we have cited. were received before or after working hours,

A when the employé was being conveyed to or er" to assist the drivers of the defendant from his work, and it was held in each case company's coal wagons in the delivery of that this was a permissible privilege allowed coal was, as he testifies, to feed the horses by the defendant to the complainant in his

in the defendant's stables, or put straw in capacity as servant. The transportation was their stalls, mend harness, etc., whenever he an incident connected with the employment was called upon by the stable boss to per. of the plaintiff while in the enjoyment of it, form such services, while it was one of the and the court held that the relation of serv regular duties of the drivers to get straw ant and master existed, and that the negli down for the horses from the stable loft. A gence of the servant or servants engaged in nooning of only 30 minutes was allowed to the the duty of transportation was negligence of “belpers" and "drivers," and the privilege a fellow servant.

was accorded to them of eating their noonday Lowell v. Howell, L. R. I. C. P. D. 161, meal in the stables or stable yard and of Boldt v. New York Central R. R. Co., 18 N. leaving their dinner pails in the stable, callY. 432, Crowe v. New York Central R. R. ing for them at the end of each day's work, Co., 70 Hun, 37, 23 N. Y. Supp. 1100, Mele a privilege obviously accorded to them by the v. Dela. Hudson Canal Co. (Super. Ct.) 14 defendant company in part for the reason that N. Y. Supp. 630, and Olson v. Andrews, 168 the employés might thus eat their noonday Mass. 261, 47 N. E. 90, are all cases in which meal and be on the spot ready for work again the injuries complained of were received on at the end of their 30 minutes' nooning. the premises of the defendant before or after Plaintiff testifies that he lived about 14 working hours, when the employé was walk squares away from the stable, too far for ing to or from his work. In these it was him to go home for his dinner in the time alheld, in like manner, that which the employé lowed. was doing was so far involved in his serv It follows that, when the plaintiff was inice that the relation of master and servant jured in the defendant company's stable yard then existed. In Heldmaier v. Cobbs, 96 Ill. at the end of his day's work, immediately App. 315, the employé was injured during the after getting his pay slip and money, and dinner hour while eating. In Helmke v. Thil just as he was about to enter a stable door many, 107 Wis. 216, 83 N. W. 360, employé for the purpose of getting his dinner pail, in

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