the facts. opinion when he testified that those conditions in the complaint that the defendants were were safe, and if it depended on other facts the negligent in allowing the intestate to work question was objectionable for failure to assume in heading No. 3 while heading No. 2 was in [Ed. Note.-For other cases, see Evidence, a dangerous condition, that they were negCent. Dig. § 2376; Dec. Dig. $$ 547, 555.*] ligent in allowing heading No. 2 to be opened 11. MASTER ANd Servant (§ 267*)—Evidence without timbering the sides and roof there-MATERIALITY. of so that they could not cave in, and that they were negligent in failing to discover the dangerous condition of heading No. 2, although they knew that the heading was cut through shallow rock, and that the rock roof of the heading had been weakened by repeated blasts of dynamite and was weak Where, in an action for death of a servant by a cave-in in a tunnel, plaintiff's case did not depend on the alleged fact that the sand above the heading that caved was quicksand, and all the witnesses agreed that the sand would run in water, and was what was commonly known as "quicksand," a question calling for the common test of quicksand was immaterial. [Ed. Note.-For other cases, see Master and and leaky, and also knew that at the point Servant, Dec. Dig. § 267.*] 12. APPEAL AND ERROR (§ 1060*) - MISCONDUCT OF COUNSEL-PREJUDICE-EFFECT. In an action for death of a servant, plaintiff's junior counsel during his opening argument twice made statements outside the record, intended to excite the sympathy of the jury. On objection the court rebuked him, stating that the language was improper, and that there was no evidence on which to base it. The jury at the time were not cautioned to disregard the remarks, nor was the court asked to withdraw the case from the jury. The remarks were fully replied to by defendant's counsel, and plaintiff's senior counsel distinctly stated in his argument that the plaintiff did not ask a verdict on the ground of sympathy; but that the right depended entirely on proof of defendant's negligence, and the court charged that plaintiff in order to recover must prove her case by a fair preponderance of the evidence. Held that, the verdict returned not having been so large as to indicate that the jury were influenced by sympathy, defendant was not prejudiced by the attorney's misconduct. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*] Appeal from Superior Court, New Haven County; William L. Bennett, Judge. where it was weakest there was a pond of water and a mass of quicksand and mud it. There is no direct allegation that heading about 40 feet deep immediately over No. 2 was in a dangerous condition, but there is a clear inference to be drawn from the allegations that the plaintiff's claim is that by reason of the weak and leaky rock roof of the heading and the mass of superincumbent water, quicksand, and mud, conditions which were known to the defendants, and the fact that they had not properly timbered the heading, it was in a dangerous condition, that its condition rendered the entire tunnel a dangerous and unfit place for the intestate to work, and that in employing him in No. 3 under these circumstances they neglected the duty which they owed to him, and caused his death thereby. The complaint is a very imperfect piece of pleading, but it was not demurred to, and all the paragraphs except the first, which alleged that the defendants were constructing the tunnel, were denied. This was subAction by Edith G. Worden, as adminis- stantially the general issue, and the defendtratrix, etc., against the Gore-Meehan Com-ants by pleading and going to trial upon a pany to recover damages for personal injuries resulting in the death of plaintiff's intestate. Verdict and judgment for plaintiff, and defendants appeal. Affirmed. Seymour C. Loomis and Walter D. Makepeace, for appellants. Earlliss P. Arvine and Robert J. Woodruff, for appellee. general denial waived all mere formal defects in the complaint. Levy v. Metropolis Mfg. Co., 73 Conn. 559, 563, 48 Atl. 429. The defendants after verdict moved in arrest of judgment because the complaint contained no allegation that the intestate did not know nor have equal means with the defendants of knowing the unsafe conditions, and because THAYER, J. The defendants in construct- no evidence had been offered from which the ing an underground tunnel had opened a jury could properly find such lack of knowlperpendicular shaft extending 50 feet into edge or means of knowledge. The record the ground, and from its foot had driven shows that there are no such allegations in a portion of the tunnel about 250 feet in the complaint, and that no evidence was oflength in an easterly direction and about fered to prove the intestate's ignorance of the 500 feet in a westerly direction, the portion conditions complained of, or that he did not extending to the east being known as "Head- have equal means with the defendant of ing No. 2," that extending to the west as knowing of the conditions and their dangers. "Heading No. 3." The plaintiff's intestate We think that such allegations and proof was at work for the defendants as a labor- were not necessary in the present case. er in heading No. 3 when a cave-in occurred Where a servant sues his master for negin heading No. 2 whereby a large quantity lect of duty in failing to provide reasonably of water, mud, and quicksand rushed into safe machines or instrumentalities for the the tunnel, filling both headings so suddenly former's use in his work we have held that that the intestate was shut off from reach- he must allege knowledge or its equivalent ing the shaft, his only means of exit, and on the part of the master of the dangerous was suffocated in the tunnel. It was charged condition of the machine or instrumentality, A motion to direct a verdict for the defendants and to set aside the verdict based upon the same grounds was also properly denied. and that an allegation of want of knowledge | Co., 41 Or. 82, 68 Pac. 426, 428. In such cas or means of knowledge on the part of the es it is for the defendant to show knowledge servant was an essential part of a com- and assumption of the risk on the part of plaint. O'Keefe v. National F. B. & P. Co., the plaintiff. The risk in the present case 66 Conn. 38, 46, 33 Atl. 587; Elie v. Cowles was an extraordinary one, arising after the & Co., 82 Conn. 236, 240, 73 Atl. 258. These service began through the defendants' negallegations were necessary in the cases re ligence as claimed by the plaintiff. It was ferred to to show a neglect of duty on the not necessary for the plaintiff to allege or part of the master. The servant in engaging prove want of knowledge to present a prima for service is held to have assumed all the facie case, and for this reason the motion known or obvious dangers ordinarily inci- in arrest was properly denied. dent to the employment, among which are those arising from the situation and use of the machines and instrumentalities provided for the work, but not those arising from the master's negligence. When, therefore, he The defendants requested the court to counts upon a defective machine or instru- charge: "The work in which the plaintiff mentality or upon any defective condition was engaged was necessarily dangerous by which is an ordinary incident of the busi- reason of his position while at work, and ness so as to be within the risks which he under such circumstances the rule of law is held to have assumed he must, to make which requires a master to furnish his servout a prima facie case, allege and offer evi- ant a reasonably safe place to work does dence to prove facts which show that the not apply." The request was properly rerisk arising from the defect complained of fused. The fact that the work was neceswas not assumed by him, and that it was sarily dangerous did not excuse the dedue to the defendant's neglect of a duty fendants from using reasonable care to make owed to the servant. This, whether the de- the place in which the intestate worked fect was a latent one existing at the time reasonably safe. In most cases it is not posof the employment and known to the mas- sible to make the servant's place of service ter and unknown to the servant, or was one absolutely safe, and the law does not rewhich arose subsequent to the employment quire it. It must be made reasonably safe through the neglect by the master of his according to the circumstances so far as duty to inspect or repair, requires an allega- reasonable care can make it so. What would tion of knowledge of the defect on the part be a reasonably safe condition must in any of the master, and of absence of knowledge case depend upon the circumstances and on the part of the servant, or what is equiv- necessities of the case, the nature of the alent thereto. This is necessary in order to work, and the results to be accomplished. show that the risk was not assumed by the The more dangerous the work the more reaservant, and that the defect was one of which son there would seem to be that the dethe master should have given the servant no- fendants should use reasonable care to make tice, or which he should have prevented or the place reasonably safe, and clearly the remedied. But extraordinary risks, such as fact of the dangerous nature of the work are not ordinarily incidents of the employ- did not excuse them from such care. ment, are not assumed by the servant. He may by his conduct, when he has knowledge of such risks, assume them. Girard v. Grosvenordale Co., 82 Conn. 271, 275, 73 Atl. 747. But such assumption of the risk is not imputed to the relationship of the parties as master and servant or the contract of employment. It arises from the fact that the servant knowing of the abnormal risk has willingly encountered it. In the absence of facts showing that he has assumed such a risk he is not presumed to have done so, and he is not required to allege or prove that he had not assumed them or had no knowledge of them in order to make out a prima facie case. The rule is different in this class of cases from that which applies to ordinary risks, where there is a presumption that they were assumed from the relation existing between the parties by reason of the contract of service. Labatt, Master and Servant, vol. 2, §§ 855, 856; Vohs v. Shorthill & Co., 130 Iowa, 538, 107 N. W. 417; Duffey v. Consol. B. C. Co. (Iowa) 124 Two other requests to charge, correct in their statement of law, were properly refused, as they had no application to the facts of the case except so far as they were embodied in the charge. The court in refusing the first of the before-mentioned requests said to the jury that it was the defendants' duty to keep the tunnel in as safe a condition as they could consistently with a reasonable and practicable carrying on of the business there. This is objected to because it required the defendants to keep the tunnel in a safe condition when, correctly stated, the law required only that they should use reasonable care to keep it safe. The court had just stated this rule to the jury correctly, and they could not have been misled by the statement complained of. It must have been understood by them as stating the conditions in the tunnel which the defendants should use reasonable care to maintain. It does not appear to us that this statement as made was incorrect as a statement of the law, or that, if by it. The same is true of a statement with such fact could be made to appear upon crossrespect to the inspection required of the de- examination and the testimony then stricken fendants, to which exception was taken. out. Improper testimony should not be adThe plaintiff claimed that the dangers aris-mitted. The objection to the question was ing from the defective conditions complained properly sustained. The other questions arising on the charge of the court were not pressed in argument, and require no comment here. The questions asked the witnesses Johnson and Lee by the defendants' counsel on cross-examination were properly excluded. They were not proper cross-examination, but their purpose was to get into the defendants' case before their turn. As the rulings upon the three questions asked by the defendants of their witness Mr. Hill present but a single question we need discuss but one of them. The witness is a civil engineer. Having testified that he visited heading No. 2 about two weeks before the accident, and having described the conditions as he found them in that heading, and having testified that in his opinion the conditions were safe for work provided no blasting was done in heading No. 2, and that he had made some suggestions to Mr. Lee, the defendants' superintendent, he was asked this question: "Now, if what you said to Mr. Lee was done before the accident, whether in your opinion it was proper to keep the men at work there in the tunnels No. 2 and No. 3 provided they did not blast in tunnel No. 2?" This and two similar questions based upon different conditions were, on objection, excluded. The witness was qualified as a civil engineer to give his expert opinion as to the safety of heading No. 2, the conditions of which he had examined and described, and he was permitted to testify that they were safe for work if no blasting was done in that heading. Whether it was safe to keep men at work in No. 3 if no blasting Upon direct examination Lee, called as a was done in No. 2 was not a question for witness by the defendants, having testified him to answer as an expert. If the prothat he knew whether the intestate knew priety of keeping men at work in No. 3 dethe conditions in heading No. 2 on the morn-pended entirely upon the fact of the safety ing of the accident was asked by the defend- of the conditions in No. 2 the defendants ants' counsel: "Did he know?" Upon ob- had the benefit of the witness' opinion when jection this was excluded. The fact called he testified that those conditions were safe; for was a material one. If the witness had if it depended upon other facts it was not actual knowledge that the intestate knew competent for the witness to state his opinthe conditions, it was proper that it should ion without giving the facts upon which he be imparted to the jury. But if what the based it. Chamberlain v. Platt, 68 Conn. witness called knowledge was what he had 126, 130, 35 Atl. 780; Bassett v. Shares, 63 learned from hearsay it was not proper evi- Conn. 39, 46, 27 Atl. 421. Whether it was dence. The ground of the objection to the safe to employ men in No. 3 might depend question is not stated, but from the fact upon its size, length, the opportunities and found by the court that the witness was per- means of exit and other facts which might mitted to testify to the facts which he claim- or might not be known to the witness. It ed showed knowledge indicates that the might also depend upon the nature of the court held the question improper as calling material resting upon the rock roof of No. for an answer which might be founded upon 2. The witness in the absence of knowledge hearsay or be mere opinion. Before asking that this was of such a character that, if such a question it should at least be shown the roof of No. 2 gave way, it would imthat the statement expected from the wit- mediately run through the entire tunnel nesses was not mere opinion or founded up- might regard it safe to keep the men at work on hearsay. If the witness had heard the in- in No. 3, although the roof of No. 2 should testate state that he knew the conditions give way. The witness was asked his opinin the heading, or if he had seen him ex- ion on a question of fact which the jury amine it and observe the conditions, or if were to decide without stating the facts upthe witness himself or some one else in his on which he based his opinion. It is only presence had told the intestate the condi- in exceptional cases that this is permitted, tions, these facts should have been shown, and this case is not within the exception. and, as appears, were permitted to be shown if they existed. It is no answer to the obJection to say that if the witness' statement The question asked the witness Dawley as to the common test of quicksand was properly excluded as immaterial. The plaintiff's that the sand above the heading was quick- | which the plaintiff must prove to establish sand, and all the witnesses agreed that the sand would run in water and was what is commonly known as "quicksand." It was immaterial whether technically it was quicksand or not. her case, and told them she must prove them by a fair preponderance of the evidence. The jury had heard the court say to counsel that the remarks were improper and without evidence to support them. The apparent purpose of the remarks complained of was to excite the sympathy and prejudices of the jury. We have carefully considered them in connection with the evidence, which is before us, and with the amount of the verdict which was substantial. We think the jury could not have been prejudiced against the defendants by these remarks in view of all the circumstances, and that it was not error to refuse to set the verdict aside. There is no error. The other Judges concurred. CARY et al. v. PHOENIX INS. CO. et al. (Supreme Court of Errors of Connecticut. Dec. 16, 1910.) ROR-SCOPE "JUDGMENTS. Twice during the opening argument to the jury the junior counsel for the plaintiff improperly referred to facts which were not in evidence and were entirely outside of the case. Objection was made to these remarks at the time, and the court stopped the counsel and rebuked him, and stated that the language was improper, and, in one of the instances, that there was no evidence upon which to base the statement. The jury were not at the time or afterwards cautioned that they were to disregard these remarks. The court was not then asked to withdraw the case from the jury, but was asked to set aside the verdict because of these remarks. The request was refused. When it is probable that a verdict has been influenced by the improper remarks of counsel it should be promptly set aside. It may be apparent from the nature of the remarks themselves 1. APPEAL AND ERROR (§ 5*)-WRIT OF ERthat they have influenced the verdict. Hennessy v. Met. Life Ins. Co., 74 Conn. 699, 710, 52 Atl. 490. The client in such case is not entitled to retain it. But unless the client has obtained an advantage thereby he should not be punished for the misconduct of counsel. "Attempts to influence verdicts or judgments through the use of considerations which the law forbids is a species of doing falsehood and a violation of the canon of truth." To, "in argument, assert a fact that has not been proved is unprofessional, and inconsistent with membership in the legal profession." These quotations from the Code of Professional Ethics recently adopted by the Bar Association of this state (see 82 Conn. 703, 704) express our views concerning this attorney's conduct as disclosed by the record. It was in violation of his duty to the court, to his professional brethren, and to his client. We are not disposed to condone such offenses, when willfully committed. But the punishment due the offender should not be visited upon his client. Whether the defendants' request that the verdict should be set aside and a new trial Gen. St. 1887, § 1145, provided that writs of error from judgments and decrees of the suCourt of Errors to review matters of law only, perior court might be brought to the Supreme and by Pub. Acts 1897, c. 194, the words "and decrees" were dropped from section 1145. Held, ing out of a writ of error to review a decree that such amendment did not prevent the suin equity, since the words "judgments of the superior court,' as used in section 819, Gen. St. 1902, include final decisions of that court in equity. Error, Cent. Dig. § 12; Dec. Dig. § 5.* For other definitions, see Words and Phrases, vol. 4, pp. 3827-3842; vol. 8, pp. 7695-7696.] 2. APPEAL And Error (§ 5*)-Writ of Error -SCOPE OF REVIEW. A writ of error is not coextensive with the remedy of appeal; it not being intended to opof the Supreme Court of Errors in cases where erate as a process for invoking the jurisdiction the more equitable and adequate process of appeal can be used. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 8-21; Dec. Dig. § 5.*1 3. APPEAL AND ERROR (§ 544*)-WRIT OF ERROR RECORD CONTENTS - SCOPE OF REVIEW. ed no finding of facts, except such as appeared in the judgment file, nor bill of exceptions bringing into the record the facts touching the question sought to be reviewed, only errors appearing on the record proper of the superior court, the transcript of which was contained in the writ, could be reviewed. Where the record on writ of error contain granted for the attorney's misconduct had merit depends upon whether they were prej udiced by that misconduct. Apparently the trial court did not think that they were. The objectionable remarks were made in the opening argument. They were, as found by the court, fully replied to by the defendants' counsel after which the senior counsel for the plaintiff distinctly stated to the jury that the plaintiff did not ask for a verdict on the ground of sympathy, and that her right to recover depended entirely upon proof The trial court's memorandum of decision of the defendants' negligence. In its charge is not a finding of facts, and, unless made so the court instructed the jury as to the facts by the court, is no part of the official record, [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2426, 2478, 2479; Dec. Dig. § 544.*] 4. APPEAL AND ERROR (§ 527*)-WRIT OF ERROR - CONTENTS- MEMORANDUM OF DECISION. and cannot be properly brought into a writ of | insurance companies. From a decree order error. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 527.*] 5. Appeal and Error (§ 544*)-WRIT OF ER BOR-RECORD-SCOPE OF REVIEW. ing interpleader and directing payment of part of the fund to the insurance companies and the balance to one Caleb A. Morse, as signee of the judgment, defendants Cary and Morse bring error. Affirmed. William B. Stoddard, for plaintiffs in error. Leonard J. Nickerson, for defendants Where a writ of error contained neither bill of exceptions nor a statement of facts, and the judgment file of the superior court recited, The court having heard the parties finds the issues in favor of each of" certain intervening insurance companies, the only question of law in error. presented for review was whether the final judgment as contained in the judgment file could be sustained by the pleadings and such finding. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 544.*] SURER-FORMAL ASSIGNMENTS-NECESSITY. Where insurance policies provided for subrogation of the insurer to the rights of the insured in case of loss caused by the neglect of any person or corporation, and for assignment of the insured's claim against such person to the insurance company as its interest might appear, failure of the insurers to procure formal assignments of such rights did not deprive them of their right to compel payment of a judgment recovered by the insured against a railroad company for the negligent destruction of the insured property to them according to their interests. [Ed. Note. For other cases, see Insurance, Cent. Dig. 88 1504-1511, 1514-1516; Dec. Dig. § 606.*] 7. APPEAL AND ERROR (§ 544*)-FINDINGSREVIEW. On a writ of error without a statement of facts or bill of exceptions, the Supreme Court could not review a finding that a certain assignment of the judgment by assured to her attorney was made by them to defraud certain intervening insurance companies. HALL, C. J. The record of the action of interpleader, made a part of this writ of error, shows the following proceedings in the superior court: 6. INSURANCE (§ 606*)-NEGLIGENT DESTRUC- In July, 1905, the Phoenix Insurance ComTION OF PROPERTY - SUBROGATION OF IN-pany brought an action to the superior court, alleging in its complaint that on the 16th of June, 1904, it paid to Sarah Cary the sum of $1,500 under a policy of insurance issued to her by said company for the loss she had sustained by the burning of her hotel property through the fault of the New York, New Haven & Hartford Railroad Company; that on July 2, 1904, Sarah Cary brought an action against said railroad company for damages to said property by such fire, and in . 1905 recovered judgment for $5,719.04, which was still unpaid; that the Royal Insurance Company also paid Sarah Cary $600, the Commercial Union Assurance Company $600, and the Continental Insurance Company $1,500, as insurance on account of said loss; that said Cary is insolvent, and is endeavoring to defraud said plaintiff insurance company of their interest in said judgment by assigning it to Caleb A. Morse, one of the plaintiffs in error. Said complaint of the Phoenix Insurance Company asked for an injunction restraining the collection and payment of said judgment and for an order of interpleader. Upon said action of the Phonix Insurance Company, a temporary injunction restraining the collection and payment of said judgment was issued, and afterwards, upon the cross-complaint of the New York, New Haven & Hartford Railroad Company, the four named insurance companies and the plaintiffs in error, Cary and Morse, were ordered to severally interplead concerning their rights to the sum of $5,728.78 ordered to be paid by said New York, New Haven & Hartford Railroad Company into the hands of the clerk of the superior court. [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 544.*] 8. INSURANCE (§ 606*)-SUBROGATION OF IN SURER-ATTORNEY'S FEES. Where insurers paid a loss under policies providing for subrogation to the rights of the insured to recover against third persons negligently causing the loss, and thereafter insured recovered judgment against a railroad company for burning the property insured, which she assigned to her attorney to defeat the claims of the insurance companies to subrogation, the court on setting aside such assignment, and decreeing the proceeds of the judgment to the insurance companies as their interest appeared, did not err in refusing to require them to contribute to the payment of the expenses and fees of insured's attorney in prosecuting the action against the railroad company. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 606.*] Error from Superior Court, Fairfield County; Joel H. Reed, Judge. Bill by the Phoenix Insurance Company against Sarah Cary and others to restrain the collection and payment of a judgment recovered by defendant Cary against the New York, New Haven & Hartford Railroad Company for the destruction of certain buildings by fire on which the insurance companies had written and paid insurance, in which the railroad company filed a cross-bill of interpleader against the other parties and other Said insurance companies thereupon severally filed their claims in the superior court, each claiming to be subrogated to the rights of Cary to said judgment, to the extent of the amount of the insurance paid to her by such company. Each of the policies under which such insurance was paid contained the following provision: "If this company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, |