his senses to avoid danger. He must not shut his eyes. If he has knowledge that a dangerous place exists, there can be no presumption in his favor. He must exercise care not to fall into it, and he is bound to make use of all the means of knowledge which are reasonably open to him." The failure of a person to use and act upon his knowledge of the perils to which he is exposed, when there is nothing to prevent or excuse him from doing so, is negligence. Nugent v. New Haven St. Ry. Co., 73 Conn. 139-143, 46 Atl. 875. A person standing upon a sidewalk is bound, for the purpose of avoiding injury, to exercise some degree of care with reference to what he knows to be the traffic in the roadway. Hayden v. Fair Haven & W. R. Co., 76 Conn. 355-362, 56 Atl. 613. One has no right to calculate close chances of avoiding injury and throw the risk of failure on the other party. McCarthy v. Consolidated Ry. Co., 79 Conn. 73-76, 63 Atl. 725.

In the case before us the plaintiff was permitted to cross the bridge on foot in going to and from his work, but that did not amount to an invitation or a license to sit on this box on the top of the seven and a half inch wide guard rail, and chat with the gate tender. The bridge belonged to the defendant, and was for the use of teams. There was no footpath on it, and persons who were permitted to cross it on foot were required to walk in the roadway used by teams. The measurements of the bridge and of the tracks show that there was no place on the bridge where a person could sit without occupying some part of the driveway, and that there was no place outside of the gatehouse where even the gate tender could sit without liability of being struck when a two-horse and a threehorse team truck were passing each other opposite him. As the plaintiff was familiar with the bridge and its use, all these facts were known or apparent to him. The fact that he knew that one and two horse teams had passed each other on the bridge without danger to one in his position, or that it was barely possible, from the dimensions of the bridge and the two trucks, for these two teams to have passed each other at the point they did, without striking the plaintiff, does not relieve the plaintiff from the charge of negligence. He knew that these were not the ordinary teams he had seen pass each other. He is also presumed to have known what is a matter of common knowledge, that drivers of such teams in passing each other under

such circumstances as those described in the finding are not to be expected to be able from their seats to so perfectly control and guide their horses and so accurately direct their heavily loaded trucks, that they will not deviate at least several inches from a desired course, and that drivers when their teams pass each other under such circumstances must give their attention not only to the motions of their own horses, but those of the other team.

Ap

With the knowledge of which the plaintiff was possessed, and that with which he was chargeable, he would not have been justified in remaining seated upon the box where he was, upon the belief that these two teams would pass each other without hitting him, if they met at the point where he sat. parently he did not entertain such a belief, but remained where he was engaged in conversation without thinking that the teams would meet there and without considering where they would meet. He was negligent in so acting. He was in the full possession of his faculties. He saw Kefford's team come onto the bridge from the west some time after he saw Cooper's coming onto it from the east, and while he heard the latter team aproaching him on the bridge. He knew, if the two teams continued to advance, they must meet on the bridge, and a glance or a moment's thought would have shown him that they would probably meet near him. Instead of using his senses, as he should have done, to learn his danger and avoid it while he could, he turned his back to the teams, and continued his chat with the gate tender and gave the teams no further attention. In determining whether he was negligent, he must be held to have been required to act as well upon what he should have known, as upon what he knew. The facts show that the trial court failed to require him to do so, and that it erred in not holding that the plaintiff's negligence essentially contributed to his injury.

Having reached this conclusion, we are not required to discuss the defendant's claim that in finding Cooper guilty of negligence the trial court evidently assumed the existence of certain distances in stated situations between parts of the tracks and parts of the bridge, which are not reconcilable with the measurements given in the finding.

There is error, and the case is remanded, with directions to render judgment for nominal 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 REVIEWFAILURE 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 OR NECESSITY OF IN

STRUCTION.

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.

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

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 precise error claimed shall be specifically stat ed 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.

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

(Supreme Court of Delaware. May 6, 1907.) MASTER 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, §§ 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), plaintiff brings error. Affirmed.

Argued before NICHOLSON, Ch., and SPRUANCE and BOYCE, JJ.

Franklin Brockson, for plaintiff in error. Christopher L. Ward and John P. Nields, for defendant in error.

NICHOLSON, Ch. This was an action on the case, brought in the Superior Court in and for New Castle county by Lewis E. Taylor, the plaintiff, against George W. Bush & Sons Company, the defendant, for the recovery of damages for personal injuries. Under the instruction of the court below the jury rendered a verdict in favor of the defendant; the plaintiff having declined to accept a nonsuit. Upon this verdict judgment was entered, and a writ of error taken by the plaintiff. In the court below the motion for a nonsuit was based upon the ground that it | appeared from the evidence of the plaintiff that he was a servant of the defendant when he was injured, and that his injury was due to the negligence of a fellow servant.

The facts in the case are in substance as follows: The plaintiff was employed by the defendant company as one of the helpers on the defendant's coal wagons. He had been so employed for about three months, his hiring being from day to day, and he lived about 14 blocks from the defendant's place of business and stables. The plaintiff and other servants of the defendant, "drivers" of coal wagons and "helpers," were in the habit of bringing their dinners each day, by permission of the defendant, to the stables and stable yard of the defendant, and of there eating their noonday meal, either in the stable or stable yard, and leaving their dinner pails in the stable until the end of the day's work, when they carried them home. The plaintiff's duties included some occasional work about the stables, when so ordered by the stable boss, such as putting straw in the stalls from the loft above, etc. On the 7th of April, 1903, about 6 o'clock in the evening, the plain-❘ tiff, after receiving his pay slip and money at the company's office, which was situated about a block from the company's stables, walked to the stable yard, as he was in the habit of doing, to get his dinner pail. As he was walking on a passageway inside the company's stable yard, near a door of one of the stables, on his way into the stable to get his dinner pail, a servant of the defendant by the name of Blake, one of the defendant's drivers, threw a bale of straw out of the stable loft, which fell upon and seriously injured him. One of Blake's duties was to get straw out of the loft to bed his horses with, and he generally threw it out of the window; but there was a hole in the back part of the stable loft, and it was sometimes thrown down in that way. The plaintiff had no notice or warning that the straw was about to be thrown down.

There are a number of assignments of er

ror, but counsel on both sides practically agreed that there is but one question before this court; that is, whether the plaintiff was a servant of the defendant at the time he was injured. The counsel for the plaintiff, in his elaborate and carefully prepared brief, expresses the whole of his contention in the following words: "It is respectfully submitted that the evidence shows that the plaintiff was not a servant of the defendant at the time he was injured; that he was injured by gross negligence of the defendant, while he was on its premises at its invitation, and in the exercise of due care and caution upon his part; that the privilege of going upon the defendant's premises was a mere gratuity, and not extended to him by any contract of service." The ground upon which the plaintiff's counsel bases his contention that the plaintiff was not, at the time he was injured, a fellow servant of Blake, the servant of the defendant who dropped the bale of straw upon him, in consequence of which he was injured, is that at that time he had finished his day's work and was off duty.

The question raised is an interesting and important one, and involves an examination and analysis of the reasoning of the authorities which have established what is called the "fellow servant" or "common employment" doctrine, in order to determine its application to such a state of facts as is presented in this case, or to ascertain whether the facts and circumstances of this case are within the scope of the doctrine. A great number of authorities have been cited by counsel on both sides, who have furnished the court with very full briefs. No cases have been cited from our own Reports, however, and the particular question involved comes before us as a case of first impression in this state.

The opinion of Chief Justice Shaw in the case of Farwell v. Boston & Worcester R. Corp., 4 Metc. (Mass.) 49, 38 Am. Dec. 339 (1842), is unquestionably the "fountain head" of the "fellow servant" or "common employment" doctrine, as Pollock states in his work on Torts. Justice Harlan quotes and adopts the language of this opinion in the case of Hough v. Railway Co., 100 U. S. 215, 25 L. Ed. 612 (1879), when for the first time it is explicitly laid down by our Supreme Court, and in the leading English case of Bartonshill Coal Company v. Reid, 3 Macq. H. L. Cases, 266 (1858), that being the case in which the House of Lords first settled the doctrine for both England and Scotland, Lord Chancellor Cramworth also adopted and paid homage to this opinion of Chief Justice Shaw. In order that we may have this doctrine before us in a most authoritative form, I will quote from Justice Harlan's opinion at length,

""The general rule,' said Chief Justice Shaw, in Farwell v. Boston & Worcester Railway Corporation, 4 Metc. (Mass.) 49, 38

Am. Dec. 339, 'resulting from considerations as well of justice as of policy, is that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal contemplation the compensation is adjusted accordingly; and we are not aware of any principle which should except the perils arising from the carelessness and negligence of those who are in the same employment. These are perils which the servant is likely to know, and against which he can as effectually guard as the master. They are perils incident to the service, and which can be as distinctly foreseen and provided for in the rate of compensation as any other.' To prevent misapprehension as to the scope of the decision, he deemed it necessary, in a subsequent portion of his opinion, to add: 'We are far from intending to say that there are no implied warranties and undertakings arising out of the relation of master and servant. Whether, for instance, the employer would be responsible to an engineer for the loss arising from a defective or ill-constructed steam engine; whether this would depend on an implied warranty of its goodness and sufficiency, or upon the fact of willful misconduct or gross negligence on the part of the employer, if a natural person, or of the superintendent or immediate representative and managing agent, in case of an incorporated company-are questions on which we give no opinion.' As to the general rule, very little conflict of opinion is to be found in the adjudged cases, where the court has been at liberty to consider it upon principle, uncontrolled by statutory regulations. The difficulty has been in its practical application to the special circumstances of particular cases. What are the natural and ordinary risks incident to the work in which the servant engages; what are the perils which, in legal contemplation, are presumed to be adjusted in the stipulated compensation; who, within the true sense of the rule, or upon grounds of public policy, are to be deemed fellow servants in the same common adventure or undertaking-are questions in reference to which much contrariety of opinion exists in the courts of the several states. Many of the cases are very wide apart in the solution of those questions."

It is obvious that we are not concerned with the limitations and exceptions I have cited for the purpose of giving a more complete statement of the doctrine. Upon each of these limitations or exceptions, and upon others as well that are not enumerated, there are a host of decisions and conflict of authority; but, as appears from the statement of the case before us already made, the only question for this court to decide is whether the plaintiff, at the time he received the injury, was or was not a servant of the de

fendant, within the scope of the doctrine. In a case where, as in the one before us, no question was raised but the single one whether or not the person injured, the plaintiff, was at the time of the injury a servant of the defendant, within the scope of the doctrine, Justice Cochran, of the United States District Court (Dishon v. Cincinnati, N. O. & T. P. Ry. Co., 126 Fed. 197), argues as follows, after quoting from Justice Harlan a section of the above and from Pollock on Torts a statement of the doctrine and the reason for it, essentially the same as that I have quoted from Chief Justice Shaw:

It

"Serious question has been made as to whether this reasoning and the fellow servant doctrine based upon it are sound; but that this reasoning is the true basis of that doctrine is not now disputed by any one. As Prof. Pollock says, it has prevailed in the authorities.' This being so, this reasoning should be given its full force. There should be no sticking in the bark at any point. should be held that the servant assumes all the risks he runs, excluding that of the negligence of the master, and including that of the pure negligence of co-servants, whenever doing anything contemplated by his contract of employment; i. e., which under that contract it is his duty or he has a right to do. In other words, it should be held that the assumption of risk by the servant is as broad and sweeping as the scope of action on his part required or authorized by the contract. The risk of the servant goes with him whereever he goes under his contract of employment, and the assumption should accompany the risk. There is no good reason for holding that the assumption of risk exists when the servant is doing one thing required of him by the contract, and does not exist when he is doing another thing so required, or that it exists when he is doing a thing required of him by the contract, and does not exist when he is doing a thing which he is simply authorized to do by the contract. Any stopping short, therefore, of making the assumption by the servant of the current risks of his employment as wide as the action on his part contemplated by the contract, discredits the principle and reasoning on which the fellow servant doctrine is based, and that doctrine itself. Hence it is never a test of the application of the fellow servant doctrine to any given case whether or not the injury was received by the servant during working hours, or when he was at work after working hours. The sole test of its application thereto is whether, at the time of the injury, the servant was doing something which it was his duty, or he had a right to do under the contract. If he was so acting, the doctrine applies; if not, it does not apply. I think this test is clearly deducible from the relevant authorities."

The learned judge then cites and analyzes a great array of authorities in a very lengthy

and interesting opinion, quoting very freely from most of the cases, and discriminating those cited in support of the plaintiff's contention. His conclusion was that the injuries received by the decedent of the plaintiff, Dishon, were caused by the negligence of a fellow servant, and therefore the defendant company was not liable. This list of authorities seems to be absolutely exhaustive. No relevant case has been cited by counsel in the argument of the present case not cited and analyzed in the opinion of Judge Cochran, nor have I been able to find any, and it seems unnecessary, if not superfluous, to extend the limits of this opinion by any wide review of authorities.

Counsel for the defendant in their admirable brief have selected and grouped and analyzed the most relevant and important cases, not only those directly supporting their contention, but those cited by counsel for the plaintiff. Of these Gillshannon v. Stony Brook R. R. Co., 10 Cush. (Mass.) 228, Ionnone v. Railroad, 21 R. I. 452, 44 Atl. 592, 46 L. R. A. 730, 79 Am. St. Rep. 812, Seaver v. Boston and Maine R. R. Co., 14 Gray (Mass.) 466, Gilman v. Eastern R. R. Co., 10 Allen (Mass.) 233, 87 Am. Dec. 635, McGuirk v. Shattuck, 160 Mass. 45, 35 N. E. 110, 39 Am. St. Rep. 454, Rosenbaum v. St. Paul R. R. Co., 38 Minn. 173, 36 N. W. 447, 8 Am. St. Rep. 653, Wright v. North Hampton R. R. Co., 29 S. E. 100, 122 N. C. 852, and Bowles v. Ind. R. R. Co., 62 N. E. 94, 27 Ind. App. 672, 87 Am. St. Rep. 279, are cases in which the injuries complained of were received before or after working hours, when the employé was being conveyed to or from his work, and it was held in each case that this was a permissible privilege allowed by the defendant to the complainant in his capacity as servant. The transportation was an incident connected with the employment of the plaintiff while in the enjoyment of it, and the court held that the relation of servant and master existed, and that the negligence of the servant or servants engaged in the duty of transportation was negligence of a fellow servant.

Lowell v. Howell, L. R. I. C. P. D. 161, Boldt v. New York Central R. R. Co., 18 N. Y. 432, Crowe v. New York Central R. R. Co., 70 Hun, 37, 23 N. Y. Supp. 1100, Mele v. Dela. Hudson Canal Co. (Super. Ct.) 14 N. Y. Supp. 630, and Olson v. Andrews, 168 Mass. 261, 47 N. E. 90, are all cases in which the injuries complained of were received on the premises of the defendant before or after working hours, when the employé was walking to or from his work. In these it was held, in like manner, that which the employé was doing was so far involved in his service that the relation of master and servant then existed. In Heldmaier v. Cobbs, 96 Ill. App. 315, the employé was injured during the dinner hour while eating. In Helmke v. Thilmany, 107 Wis. 216, 83 N. W. 360, employé

was injured after his work was over by cogwheels in a closet where he had gone for his coat. In Boyle v. Columbian Fireproofing Co., 182 Mass. 93, 64 N. E. 726, the employé was injured on an elevator on which he was going down, with other workmen, to dinner. In the last three cases it was held that the relation of master and servant existed, with the consequence of imposing liability on the employer, whose negligence caused the accident, and there was no question of negligence on the part of a fellow servant.

Brydon v. Stewart, 2 Macq. H. L. Cases, 30, was a Scotch case which went up to the House of Lords, and was afterwards quoted and analyzed by Lord Cramworth in the leading English case, which I have cited above, of Bartonshill Coal Company v. Reid, 3 Macq. H. L. Cases, 266. In Brydon v. Stewart the employés were injured in being drawn out of a mine after they had struck work, and the master was held liable in that case (there being no question of negligence of a fellow servant), because the relationship of master and servant was still subsisting. The facts in the case of Dishon v. Cincinnati, N. O. & T. P. Ry. Co., already discussed and quoted, involved an application of the principle deduced from the cases cited by the learned judge in that case, a few of which we have considered above, which it is not incumbent upon us in the present case either to approve or disapprove. In such a case as the one presented there can be no doubt of the applicability of the doctrine as laid down by the authorities we have cited.

A part of the plaintiff's duties as a "helper" to assist the drivers of the defendant company's coal wagons in the delivery of coal was, as he testifies, to feed the horses in the defendant's stables, or put straw in their stalls, mend harness, etc., whenever he was called upon by the stable boss to perform such services, while it was one of the regular duties of the drivers to get straw down for the horses from the stable loft. A nooning of only 30 minutes was allowed to the "helpers" and "drivers," and the privilege was accorded to them of eating their noonday meal in the stables or stable yard and of leaving their dinner pails in the stable, calling for them at the end of each day's work, a privilege obviously accorded to them by the defendant company in part for the reason that the employés might thus eat their noonday meal and be on the spot ready for work again at the end of their 30 minutes' nooning. Plaintiff testifies that he lived about 14 squares away from the stable, too far for him to go home for his dinner in the time allowed.

It follows that, when the plaintiff was injured in the defendant company's stable yard at the end of his day's work, immediately after getting his pay slip and money, and just as he was about to enter a stable door for the purpose of getting his dinner pail, in