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Conn.)

NICHOLS v. TOWN OF MANCHESTER

337

JAPANESE IMPORTERS CO. V.

WALSH.

(Supreme Court of Rhode Island. Nov. 3, 1911.)

JUDGMENT (§ 138*)-DEFAULT-VACATION.

Where plaintiff, on October 6, 1911, obtained judgment against defendant by default on service of a writ by leaving it at defendant's last usual place of abode, and on such judgment issued execution against defendant's body, whereupon, on November 2d, defendant applied for trial, alleging want of actual notice of the service of the writ, and that he had a good and valid defense to the action, the judgment will be set aside, and new trial granted.

[Ed. Note.-For other cases, see Judgment, Dec. Dig. § 138.*]

Action by the Japanese Importers Company against Thomas Walsh,, alias, etc. On defendant's petition for a trial notwithstanding judgment by default, under Gen. Laws 1909, c. 297, § 1. Granted.

The following is defendant's petition: "Japanese Importers Co. v. Thomas Walsh.

Alias.

"Thomas L. Walsh, the above defendant, respectfully represents and shows that on the 6th day of October, A. D. 1911, the abovenamed plaintiff corporation obtained a judgment by default against him for $162.70 and $3.00 costs in an action of deceit upon a writ of summons returnable to the district court of the Sixth judicial district; that he had no knowledge whatever of the service of said writ, which service appears to have been by leaving a copy at his last and usual place of abode; that he has a good and valid defense to said action; that an execution was issued in said action against his body; and that he is now under arrest on said execution and in the custody of a deputy sheriff. And he says that by reason of accident, misfortune, and mistake he has been denied and has not had a fair trial of said action. He therefore prays for a new trial in said action, that the default aforesaid be removed, and that further service of said execution be stayed, and that he be released from arrest thereunder till the further order of the court.

"Thomas L. Walsh. "Subscribed and sworn to in Providence, in said county, this 2d day of November, A. D. 1911, before me.

"H. J. Carroll, Notary Public." Bassett & Raymond, for plaintiff. Hugh J. Carroll, for defendant.

PER CURIAM. The defendant's petition for a trial is granted, and he is directed to enter his appearance in the district court of the sixth judicial district on or before November 9, 1911. The judgment heretofore entered in said cause is vacated, and the defendant is released from arrest.

NICHOLS v. TOWN OF MANCHESTER. (Supreme Court of Errors of Connecticut. Nov. 1, 1911.)

1. APPEAL AND ERROR (§ 994*)-REVIEW-UNCONTRADICTED EVIDENCE.

Under Rules of the Supreme Court of Errors (Practice Book 1908, p. 268) § 10, providing that the refusal to find a material fact, which was undisputed, shall be ground for an exception, but that the mere uncontradicted testimony to a fact is not sufficient, the trial court being the judge of the credit of witnesses, a fact in issue is not undisputed, though the only direct testimony thereon is not contradicted, and hence a finding in opposition to such testimony will not be reversed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906; Dec. Dig. § 994.*]

2. APPEAL AND ERROR (§ 1010*)—REVIEWFINDINGS WITHOUT EVIDENCE.

A finding of fact, contrary to the affirmative testimony, not directly contradicted, or when no witness has directly testified to such fact, is not necessarily a finding without evidence; for facts may be inferred from other facts without direct evidence, and the trial court is judge, not only of the truthfulness of witnesses, but of the weight to be given to their testimony, and its finding will not be reversed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982; Dec. Dig. § 1010.*]

3. MUNICIPAL CORPORATIONS (§ 819*)-COURTS

-STREETS-ACTIONS-EVIDENCE.

In an action against a municipal corporation in a highway, evidence held to warrant a tion for wrongful death, caused by an obstrucfinding that deceased might have avoided the obstruction.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 819.*]

4. MUNICIPAL CORPORATIONS (§ 818*)-OBSTRUCTION IN STREET-EVIDENCE. In an action against a municipality for wrongful death, caused by an obstruction in a highway, the court, in making a finding of fact whether deceased might have driven his horse so as to have avoided the obstruction, should consider the disposition of the horse, his actions after the accident, and all matters surrounding such accident.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 818.*]

Appeal from Superior Court, Hartford County; William H. Williams, Judge.

Action by Mary R. Nichols, as administratrix of the estate by Benjamin F. Nichols, deceased, against the Town of Manchester. From a judgment for defendant, plaintiff appeals. Affirmed.

Action for damages for personal injury, resulting in the death of the plaintiff's intestate, alleged to have been caused by a defective highway, which it was the duty of the defendant to maintain, brought to the superior court of Hartford county and tried to the court. Facts found and judgment rendered for the defendant.

Leslie W. Newberry and Richard J. Goodman, for appellant. Theodore M. Maltbie and Olin R. Wood, for appellee.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 81 A.-22

HALL, C. J. On February 4, 1908, at 126 and 27 are not contrary to admitted or about 9 o'clock in the forenoon, the plaintiff's undisputed facts. It was not an undisputed intestate, Benjamin F. Nichols, was driving his horse and buggy southerly along a highway in the town of Manchester, when, after his horse had run for about 500 feet, the right-hand front wheel of his carriage struck and passed over a stump at the westerly side of the road, and he was thrown from his carriage and killed.

The stump was within the limits of the highway. Its easterly side was about 18 inches west of the west wheel track of the highway, and the center of the top of the stump was about 9 inches above the level of the roadway. The width of the worked and traveled part of the highway was about 171⁄2 feet, and the unobstructed and available part of the highway east of the stump was about 16 feet wide. To one driving southerly on the highway the stump was visible from a point about 500 feet north of the stump.

The issue joined upon the question of the dangerous condition of the road was decided by the trial court in favor of the plaintiff, and the issue upon the alleged due care of the deceased in favor of the defendant. Paragraphs 26 and 27 of the finding of facts are as follows:

"At and before the buggy struck the stump, the deceased was able so to control and guide said horse as to avoid a collision with the stump, and if he had exercised reasonable and ordinary care and prudence in driving said horse he would have readily avoided such collision, and the accident would not have occurred.

"From the time the horse began its running gait the deceased did not endeavor to restrain it from such gait. If he had chosen to do so, he could readily have so restrained the horse before the buggy left the wheel ruts."

[1] The plaintiff has caused the entire evidence to be certified to this court under the provisions of section 797 of the General Statutes, and, among other claims for corrections of the finding, claims, in paragraphs 21 and 22 of the assignment of errors, that said two paragraphs of the finding should be corrected, upon the grounds that the facts stated in said paragraph 26 are contrary to the undisputed facts appearing in the record, and that the facts stated in paragraph 27 are contrary to the undisputed facts, or are found from guess or surmise. We deem it necessary to consider only those reasons of appeal relating to corrections of the finding, and of these only the assignments of error claiming the correction of said paragraphs 26 and 27, since, if the requests for the correction of these paragraphs are not granted, the decision of the trial court upon the question of due care upon the part of the deceased must stand.

fact, nor one admitted by the defendant, that the deceased was unable to control or guide the horse, so as to avoid running upon the stump, nor that the deceased endeavored to restrain the horse from running. The defendant in its answer denied the averment of due care by the deceased, and the record clearly shows that the defendant claimed, and in the cross-examination of plaintiff's witnesses endeavored to show, as facts material to the issue of due care, that the deceased could have so controlled the horse as to avoid running upon the stump.

Section 10 of the rules of the Supreme Court of Errors (Practice Book 1908, p. 268) states as grounds upon which a finding may be corrected by proceedings under sections 795 and 796: (1) The refusal to find a material fact which was admitted or undisputed; (2) the finding of a fact in language of doubtful meaning; and (3) the finding of a material fact without evidence.

It appears to be the claim of the plaintiff that the three eyewitnesses to the accident testified contrary to the facts stated in paragraphs 26 and 27 of the finding, that no witness directly contradicted such testimony, and that, therefore, the facts stated in these two paragraphs were found contrary to undisputed facts or without any evidence. But the rule just referred to states that the fact that the testimony of a witness to a material fact is without contradiction does not render the fact so testified to an undisputed one, and that the trial court must judge of the credit to be given to witnesses. We said in Allis v. Hall, 76 Conn. 322, 340, 56 Atl. 637, 644: "Absence of direct contradiction by the mouth of a witness does not make a fact undisputed within the meaning of the rule. *** The trial court is at liberty to discredit any witness, or multitude of witnesses, if it deems that it has cause to do so."

[2] Again, the finding of a fact contrary to the affirmative testimony of witnesses who have not been directly contradicted, or when no witness has directly testified to such fact, is not necessarily a finding of such fact without any evidence. The trial court is the judge, not only of the truthfulness of witnesses, but of the weight to be given to their testimony; and there are many facts which are not required to be proved by direct evidence, but which may properly be inferred from other facts. That this court, in proceedings for correcting findings of facts, will not weigh evidence and retry cases, has been fully settled by the familiar cases of Styles v. Tyler, 64 Conn. 432, 30 Atl. 165, and Thresher v. Dyer, Ex'r, 69 Conn. 404, 37 Atl. 979.

[3] It was not necessary that there should have been direct evidence that the deceased

Conn.)

BELEVICZE v. PLATT BROS. & CO.

339

clusions than those stated in paragraphs 26 and 27, it does not follow that those of the trial court were unreasonable and erroneous in law, and we think they were not.

[4] In addition to the facts and testimony above stated, there was evidence that the horse was a gentle one, which the deceased was accustomed to drive; that deceased was an experienced driver, and knew of the existence, condition, and location of the stump. It was not shown that the horse was running from fright. There was evidence that he did not appear to be "running wild"; that he was running at a "frisky gait"; that one of the eyewitnesses remark

so as to avoid the accident, to justify the court's finding in paragraphs 26 and 27. The exercise by the injured person, or his failure to exercise due care in cases of this character, may be inferred from all the facts and circumstances of the case; and if such inference is one which can reasonably be drawn,, it is final. Fay v. Hartford & Springfield Street Ry. Co., 81 Conn. 330-335, 71 Atl. 364. But we think it cannot fairly be said that all of the three eyewitnesses to the accident, and who testified at the trial, said that the deceased was unable to control his horse. In answer to the question, "Was or was not the horse apparently under the driver's control?" the plaintiff's witness New-ed that Mr. Nichols was "taking a fast ride"; berry answered, "I could not say." To the question, "Did he appear to be able to guide the horse?" the plaintiff's witness Dewey answered, "I don't know." The same witness upon cross-examination testified, "I think he could have kept him in the road all right." In answer to the question upon cross-examination, "So that, if he diverged from the roadway, it was on account of his failure to guide him properly-is not that true? There can't be any question about that, can there?" the plaintiff's witness Grant answered, "No;" and to the further question, "Is it true?" answered, "Yes." The same witness also testified upon cross-examination that there was no reason why the deceased could not have guided the horse in a roadway 15 feet wide.

that there was nothing out of the ordinary
in the manner of Mr. Nichols; that he did
not call out to stop the horse, but sat up-
right in his seat, with his arms extended,
holding onto the reins, "holding the reins
straight before him"; that when about 25
feet north of the stump the horse turned
slightly to the west of the traveled track
and ran toward the stump; that after the
deceased had been thrown out, and some
distance south of the stump, the reins be-
came wound around the hub of the wheel,
and the horse was "drawn up tight" and
stopped.
These were all proper subjects
of consideration by the trial court in reach-
ing its conclusions stated in paragraphs 26
and 27 of the finding. McCarthy v. Consol-
idated Ry. Co., 79 Conn. 73, 63 Atl. 725.

There is no error, and the requests for corrections of the finding are denied. The other Judges concurred.

But if all three of these witnesses had testified that the deceased was unable to control the horse, the trial court was not required to accept these statements as correct. The court could reasonably have thought, as it very likely did, that these witnesses did not profess to be able to state with certainty; and from where they were at the time of the accident, which was some 200 (Supreme Court of Errors of Connecticut. Nov.

feet west of the stump, could not state with certainty whether or not the horse was running from fright, or whether or not the horse was within the driver's control, and that, in so far as they testified regarding these points, they were only expressing their own opinions or judgment from what they

saw.

But these these witnesses apparently stated fully to the court the facts upon which their judgment upon these points was based. By their testimony, and by the maps and photographs in evidence, the entire scene as viewed by these witnesses, showing the action of the horse and the conduct of the driver from the time the horse began to run until the time of the accident, was pictured to the trial court, and from all this evidence it was proper for the court to draw its own reasonable conclusion as to whether the deceased could have controlled the horse and have avoided the accident. Even if others might reasonably have drawn different con

(84 Conn. 632)

BELEVICZE v. PLATT BROS. & CO.

1, 1911.)

1. MASTER AND SERVANT (§ 96*)-INJURY TO EMPLOYÉ LIABILITY.

An employer's liability for injury depends primarily upon whether the injury was caused by his negligence.

[Ed. Note.-For other cases, see Master and

Servant, Cent. Dig. §§ 158, 162; Dec. Dig. § 96.*]

2. MASTER AND SERVANT (§§ 101, 102*)-SAFE PLACE OF WORK, ETC.-EMPLOYER'S DUTY.

Defendant owed a continuing duty to use reasonable care to provide a reasonably safe place and a machine, for plaintiff employé for his work, and to maintain them in such condition, including the duty of reasonable inspection.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 180-184; Dec. Dig. §§ 101, 102.*1

3. MASTER AND SERVANT (§ 150*)-INSTRUCTION OF EMPLOYÉ-EMPLOYER'S DUTY.

A master was bound to give an employé such instruction and warning as was reasonable under the circumstances as they were known or ought to have been known to the master, so as to enable the employé to appreciate the risk, and, with proper care, to do his work without

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

peril except from the ordinary risks of the | 12. MASTER AND SERVANT ( 286*)-INJURIES employment.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 305-307; Dec. Dig. 150.*]

4. MASTER AND SERVANT (8 157*)-INSTRUCTION OF EMPLOYÉ-SCOPE.

Instruction of an employé against dangers must be graduated to his age, experience, and capacity, and should, point out the risk and its nature and extent.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 303; Dec. Dig. § 157.*] 5. MASTER AND SERVANT (§ 203*)-INJURIES TO SERVANT-ASSUMPTION OF RISK.

All risks of the service not in violation of the master's duty the servant assumes by the contract of employment, and for such injuries an employer is not liable.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. § 203.*]

6. MASTER AND SERVANT (§ 125*)-DEFECTSEMPLOYER'S LIABILITY.

An employer is not liable for injuries resulting from defects of which he did not know or was not bound to know by the use of due care. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. 8 125.*]

7. MASTER AND SERVANT (§ 276*)-INJURIES -PRIMA FACIE LIABILITY.

An employer is prima facie liable for injury to an employé for failure to perform a duty to him.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 950-952; Dec. Dig. § 276.*]

8. MASTER AND SERVANT (§ 217*)-INJURIES TO EMPLOYÉ-EMPLOYER'S LIABILITY.

A master is not liable for negligent injury to his employé, if the latter knew, or ought to have known, the danger, and voluntarily encountered the risk, though he has not been instructed.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. & 217.*]

9. MASTER AND SERVANT (§ 203*)-"ASSUMPTION OF RISK"-APPLICATION OF DOCTRINE. Assumption of risk is not properly applicable to "ordinary risk," since it can mean no

more than that the risk inhered in the contract of service, and, as applied to an extraordinary risk, assumption of risk means that the servant has by his own act waived the effect of the employer's negligence.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 203.*

For other definitions, see Words and Phrases, vol. 1, pp. 589-591; vol. 8, pp. 7584, 7585.] 10. MASTER AND SERVANT (§ 155*)-WARNING TO EMPLOYÉ-DUTY TO GIVE.

An employer must warn his employé against latent dangers known to the employer, but of which the employé neither knows nor ought to know.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 310; Dec. Dig. § 155.*] 11. MASTER and Servant (§ 278*)-INJURY TO EMPLOYÉ-EVIDENCE-SUFFICIENCY.

In an action for injury to an employé at a machine containing a revolving cylinder, evidence held to sustain a finding of negligence in failing to warn him against dangers of the employment.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 278.*]

RELATING TO EMPLOYÉ-JURY QUESTIONS. Ordinarily, in an employé's personal injury action, what warning or instruction should have been gven him is for the jury.

Servant, Dec. Dig. § 286.*] [Ed. Note.-For other cases, see Master and

13. MASTER AND SERVANT (§ 286*)-INJURIES RELATING TO EMPLOYÉ-JURY QUESTIONS. In an employé's personal injury action, whether defendant was negligent in failing to warn him of dangers attending work at a machine containing a revolving cylinder held, under the evidence, a jury question.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 286.*]

14. APPEAL AND ERROR (§ 999*)-REVIEWFINDINGS-CONCLUSIVENESS.

A verdict on a question properly submitted to the jury cannot be disturbed on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3924; Dec. Dig. § 999.*]

Appeal from Superior Court, New Haven County; Ralph Wheeler, Judge.

Action by William Belevicze against Platt Brothers & Co. Verdict and judgment for plaintiff for $2,500, and defendant appeals.

Affirmed.

Terrence F. Carmody, for appellant. William E. Thoms and Francis P. Guilfoile, for appellee.

WHEELER, J. The jury may reasonably have found from the evidence submitted by the plaintiff these facts: The plaintiff was a Lithuanian, and when injured in the defendant's factory was 18 years and 5 months old, and had lived in this country 3 years.

His

knowledge of English was limited and confined to a few simple words. He entered defendant's employ and had worked nine days when he was put at work on a blocking machine of a type that was not dangerous in its operation, and he had worked on this machine two days when, at 4 o'clock in the afternoon, he was put to work on another type of blocking machine which was dangerous.

The only instruction he received was for about 10 minutes from a boy of 17, who spoke in a language he did not understand, and by motions attempted to teach him to operate the machine by having him coil one strip of metal, and by observing the plaintiff doing the work. The plaintiff was not warned of the danger of the work he was to do, nor told of the liability of his arm getting caught, nor cautioned as to the proper way in which to do the work to avoid this liability. In order to have given the plaintiff the instruction, facility, and practice to operate this machine with reasonable safety to himself, a skillful operative should have instructed him in a language he understood and have shown him how to operate it and watched him in trying to operate it, and should have continued to instruct and watch him for a considerable time so that in

Conn.)

BELEVICZE v. PLATT BROS. & CO.

341

[2, 3] The duty of the master in this case was to use reasonable care to provide a place and a machine which were reasonably safe for the plaintiff for his work. This duty was a continuing one, and hence included that of maintenance, which necessarily involved that of reasonable inspection and care (Rincicotti v. O'Brien Contracting Co., 77 Conn. 620, 60 Atl. 115, 69 L. R. A. 936), and it likewise included the giving of such instruction and warning to the plaintiff as would be reasonable under the circumstances as these were known or ought to have been known to the master so as to enable the servant to appreciate the risk and comprehend the instructions, and with proper care on his part to do his work without peril other than from the subsequent negligence of the defendant or from the ordinary risks of the work he was to do. Pelow v. Oil Well Supply Co., 194 N. Y. 68, 86 N. E. 812; Marklewitz v. Olds Motor Works, 152 Mich. 113, 120, 115 N. W. 999.

case his hand got caught before he had ac-| gence, and is determined by ascertaining quired manual dexterity in its operation the whether there has been on his part a breach machine might be instantly stopped by the of duty owed the servant. watcher, as it was impossible for the operative to have stopped the machine after being caught. The work the plaintiff did on this machine appears simple; in reality it is dangerous and requires considerable dexterity, practice, and skill. It was this: A strip of metal passes between very heavy revolving steel cylinders and leaves it in a thin strip a few inches wide, which is called a bar. This bar is then wound upon a revolving cylinder or spool of quite large diameter, called a winding block, or a blocking machine, which revolves about 52 revolutions to the minute. The plaintiff was required to take hold of the bar with his left hand as it came from the revolving steel cylinders and place it upon and around the revolving cylinder while it was in motion and hold it upon the cylinder until enough of the bar had come in contact with it so that the resulting friction would wind the bar upon it. While the bar was being placed upon and around the revolving block, if the hand should be allowed to remain upon the metal a fraction of a second too long it is liable to be caught between the layers of the bar as it is being wound upon the block, and serious injury may result. The danger of injury in this way was not one the plaintiff knew of or was warned concerning.

The plaintiff had worked on this machine for 54 hours and coiled 20 strips of the metal when, on the second day, without negligence on his part, his hand was caught between the layers of the metal which he was trying to place upon the revolving cylinder, carrying him over the machine, and as a result he lost his arm. The defendant knew, or ought to have known, the age, lack of experience, and ignorance of our language of the plaintiff, and knew that he did not understand the operation of the machine, nor have sufficient instruction and practice to have been reasonably capable of running it. The plaintiff did not comprehend the danger nor appreciate the risk, and the defendant knew or ought to have known this. The appellant bases its appeal upon the trial court's refusal to direct a verdict and its motion for a new trial upon the same ground, viz., that there was no legal evidence from which the jury could either have legally found the defendant negligent, or that the plaintiff was ignorant of the alleged danger, and did not have equal means with the defendant of knowing, appreciating, and understanding the danger, since the injuries of the plaintiff were caused by a risk which was one of the ordinary risks of his employment, and if not that, but an extraordinary one, it had been assumed by him.

[1] The liability of a master for an injury to a servant primarily depends upon whether or not the injury was caused by his negli

[4] The instruction must be graduated to the age, inexperience, and incapacity of the servant and should point out the risk and its nature and extent. Thompson on Negligence, §§ 4106, 4107.

[5] All the risk of the service not in violation of the master's legal duty the servant by his contract of employment takes upon himself. For such risk of service the master incurs no liability, not because the servant has assumed the risk, but because the master owes no duty in reference to it.

[6] Reasonable or due care in the performance of the master's duty does not require the master to insure the safety of place, instrumentalities, or servants; hence he is not liable except for defects he knew or ought to have known of.

[7] When, subsequent to the beginning of employment, a servant is injured through the failure of the master to perform his duty towards him, the master is prima facie liable.

In the terminology of the law this risk, due to the master's misconduct, comes within what is called an extraordinary risk as distinguished from the ordinary risk of service. "As applied to the risk of a servant in his employment, it becomes transformed from ordinary into extraordinary whenever, among other conditions, the master's negligence contributes an added hazard to the situation in which the servant is placed." Baer v. Baird Mach. Co., 84 Conn, 269, 273, 79 Atl. 673.

[8] When the servant knows, or ought to have known, the danger, and, even though no instruction has been given, appreciates the risk and voluntarily encounters it by continuing in the work without promise of remedy, his conduct prevents his taking advantage of the master's negligence. Elie v. Cowles,

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