Connecticut. Supreme Court of Errors.

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skillful and careful men in their several employments, and
that the defendants were guilty of no negligence in select-
ing and employing them. It further appeared that the
bridge-builder was intrusted by the defendants with the
construction and maintenance of all the bridges and culverts
in that division of the road, and that the road-master was
likewise intrusted with the construction and maintenance
of the track and road-bed of the road. The road-master had
under him section-foremen who had charge of section-work-
men. These were the important facts of the case. The
defendants contended that the bridge-builder, road-master
and section-foreman were fellow-servants of the decedent in
the running of their trains, and consequently that their
negligence was not in law attributable to them, but was one
of the risks which the decedent assumed when he entered
their sei'vice. The court, in deciding the case, use the
following language: — "The general principles underlying
the determination of the duties and liabilities of the master
and the risks which the servant assumes by entering upon
the employment, are very generally agreed upon. Where the
employment is hazardous it is very generally agreed that
the master assumes the duty of exercising reasonable care
and prudence to provide the servant a reasonably safe place
and reasonably safe machinery and tools to exercise the
employment, and to maintain the place, machinery and tools
in a reasonably safe condition during the time of such
employment. He also assumes the duty of exercising the
same measure of care and prudence to provide suitable
materials and suitable and suflBcient co-servants to properly
exercise the employment or carry on the business. When
this duty is discharged by the master the servant assumes
all risks and hazards attendant upon the exercise of the
employment or performance of the work, including those
resulting from the negligence and carelessness of co-servanta.
The diveisity in the decisions has arisen in determining who
are co-servants in the common employment, and whether the
master is to be charged with the negligence of an employee,
who in some parts of the employment is strictly a co-servant

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JANUARY TERM, 1888. 468

Wilson V. WilUmantic Linen Co.

with the person injured, and in other parts is discharging a
duty incumbent upon the master." And the court, in
criticising the doctrine of the Lord Chancellor in Wilson v.
Merry^ Law Reps., 1 House of Lords Cases, Scotch App.,
826, and of other cases which hold that if the master
attends in person to the management of his affairs he is
responsible for his negligence which causes injury to his
servant, but if he commits such management to an agent
who is competent and proper for the position he is not
responsible for the agent's negligence which causes a like
injury, use the following language : — " The question is natu-
rally suggested, why should he [the master] not also be
liable for the negligence of the agent or servant whom he
has appointed to discharge the same duty in his stead,
although he has exercised due care to select a person compe-
tent and skillful ? Is such an agent or servant, while per-
forming the duty cast by the relation upon the master, a
fellow-workman with the master's servant in such a sense
that the latter cannot and ought not to recover of the master
for injuries sustained through the negligence of the former?
If so the master, who performs his part of the duty, .as
this defendant and all corporations must, by agents and
servants, secures an immunity from liability which the
master who personally enters the service to manage and
direct the performance of the work, does not enjoy. The
doctrine now established by the United States Supreme
Court, and by most of the courts of last resort in the several
states, holds the master liable to his workman for injuries
sustained from the negligent performance of duties which
rest by the relation upon the master, whether the master
performs such duties personally or through an agent or
servant." In conclusion the court say : — " When the case of
Hard v. Vermont ^ Canada JR. JR. Co.^ 82 Verm., 473, was
decided, the liability of the master was held to be dependent
upon whether the servant whose negligence caused the
injury and the servant injured were fellow-servants in a
common employment and work. Making this the test for
determining the master's liability, the reasonings and con-

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WUaon V. WilUmantic Linen Co.

elusions of the late Chief Justice are unanswerable. But
this test, while determinative in a great number of cases,
has been abandoned both in England and in this country,
and in lieu thereof the master s liability has been made to
rest upon whether the negligence arose in the performance
of a duty for the careful discharge of which he became
responsible when he assumed the relation of master to the
injured servant. On these principles, which we think
furnish the true ground upon which the master's liability
rests, and on the American application of them, the bridge-
builder and road-master, while inspecting and caring for the
defectively constructed culvert, were performing a duty
which, as between the intestate and the defendants, it was
the duty of the defendants to perform. Their negligence
therein was the negligence of the defendants, being the
agents of the defendants for the performance of those duties.
Notice to them in regard to the defective construction of the
stockade as affecting the safety of the culvert, was notice
thereof to the defendants."

On the same principle the superintendent and master-
mechanic and the overseer of repairs in the defendants'
establishment were performing the duty which 'the relation
of master and servant cast upon the defendants, when they
superintended the construction and undertook to attend to
the condition of the countershaft in question. Their act
was the act of the defendants, their knowledge of its
unsafe condition was the defendants' knowledge, and their
negligence in the premises was also the negligence of the

Suppose that the superintendent and master-mechanic had
been the owner of the defendants' establishment, and was
running the works when the injury occurred. Could there
be a doubt regarding his liability to the plaintiff, so far as
the question we are now considering is concerned ? All the
cases hold that he would have been bound to exercise rea-
sonable care to provide safe appliances for the plaintiffs use.
Such appliances were not provided. The superintendent
knew that the countershaft was not fully constructed, and

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JANUARY TERM, 1883. 465

Wilson V. WUUnumtlc Linen Co.

that it was left in an unsafe and dangerous condition to be
used. What care did he take to make its condition safe
before he ordered it to be run? He simply directed the
overseer of repairs to complete the utafinished applianc^,
but took no measures to ascertain whether it was finished
or not before the plaintiff was injured. All the authorities
cited, and indeed aU the cases, hold that it is not enough
for the master to order safe machinery to be constructed,
but he must exercise reasonable care to see that the ma-
chinery is in fact safe after the order has been executed. It
would be an easy matter for a master to escape liability if
an order to construct safe machinery would be sufl&cient.
That would be equivalent to exculpating him entirely from
all liability in this regard. It is clear there would have
been no escape for the superintendent and master-mechanic,
so far as his negligence was concerned, had he been the
master here. How then can there be any escape for the
defendants on this ground? The superintendent and mas-
ter mechanic was performing the* duty of the defendants
when he superintended the construction of the appliance in
question, for he had the special charge of this department
of the defendants' business. The case is barren of all
information tending to show that any officer of the cor-
poration above the superintendent cared for the proper con-
struction and safe condition of this appliance, and if the
superintendent did not represent the defendants in this
regard then they had no representative, and they were
equally culpable for the want of one, for an unsafe and
dangerous appliance was in fact-fumished for the plaintiff's
use, and they were bound to know what was being done in
their immediate presence in this respect. The appliance
was constructed to enlarge the capacity of the defendants'
works, and so far as the enlargement and every thing per-
taining to the case are concerned, all were new, and stand
exactly as the defendants' works originally stood when they
first began to be operated. We think it is clear that there
is no escape for the defendants so far as the question of
their negligence is concerned.
Vol. l.— 30

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Wilson V. Willimantic Linen Co.

But it is said that the plaintifiP, in belting the countershaft
to the spinning frame, was engaged in the same common
employment with those who constructed the shaft itself;
that they all were preparing the spinning frames for use, and
consequently were co-laborers or fellow-servants together ;
that the overseer of repairs was one of them, and for his
negligence in omitting to put collars upon the shaft the de-
fendants are not responsible, for it was the negligence of a
fellow-servant, the risk of which the plaintiff assumed by
the contract of service. And they cite the case of Murphy
V. Boston ^ Albany B. B. Co.^ 88 N. York, 146, in support
of the claim. If it be conceded that the overseer of repairs
was a fellow-servant of the plaintiff in the work he was
doing, still the claim does not exonerate the defendants from
the effect of the negligence they committed through their
superintendent and master-mechanic, for the law is so that
the master is responsible for an injury produced by the
combined negligence of himself and a fellow-servant of
the injured employee. 2 Thompson on Negligence, 981;
Wharton on Negligence, § 227 ; Pavlmier v. Erie B. JL
Co., 34 N. Jer. Law, 157; Cayzer v. Taylor, 10 Gray, 274;
Booth V. Boston ^ Albany B. B. Co., 73 N. York, 88;
Ferry v. BickeUs, 5 111., 234.

But the case of Murphy v. Boston ^ Albany B. B. Co^
(supra,) was a very different one from the case at bar.
There the court held that the employees who repaired the
boiler of the steam engine that exploded and injured the
plaintiff were fellow-servants with the employee who set the
safety valve to the boiler, for the engine was no more a com-
plete machine without the safety valve than it would have
been without the boiler. These essentials were simply dif-
ferent parts of the same engine. Here the belt formed no
part of the countershaft. It merely communicated the
power of the shaft to the spinning frames, and was as much
a part of the frames as it was of the shaft. If this connec-
tion was a part of the shaft, then all the connections of the
shaft back to the engine or water wheel, as the case may be,
were parts of it, and the whole establishment was one vast

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JANUARY TERM, 1883. 467

Wilson V. Willimantic Linen Co.

machine. The defendants admit that the spinners would
have had a cause of action against the defendants had they
been injured by the falling of the countershaft, and still
they put on and off the belt making the connection between
the countershaft and spinning frames many times a day,
in doing their work as spinners. The belt is turned on
to a loose pulley when it is turned off the frame, but the
pulley is a mere convenience for putting the belt on again.
The act itself is precisely the same as was that of the plain-
tiff when he was injured. The case of Murphy v. Boston ^
Albany R. R. Co,^ which the defendants rely upon in this
part of the case, holds, that if the engine had gone out upon
the road, and its fireman or engineer had been killed by its
explosion while in use, there would have been a cause of
action against the company. But it might have been said
with equal propriety in that case, as it can be said here, that
the fireman in supplying fire and water to the engine was
merely preparing it for use, as much as the boiler-maker in
repairing the boiler ; and that the work of both was essen-
tial before the engine would be ready for use. Fire and
water in that case performed a similar oflSce with that of the
belt here. The engine was a complete machine in and of
itself, but it required fire and water to make it useful. The
countershaft was a complete appliance in and of itself, but
it was useless without a belt. There is nothing in this

Was the plaintiff guilty of negligence which contributed
substantially to produce the injury of which he complains?

It is said by the plaintiff that the court below has not
found that he was negligent in not making an examination
of the shaft before applying the belt to it ; but on the con-
trary has found that he was not in fact negligent. The
defendants contend that negligence is a compound question
of law and fact ; that the court having found all the facts,
it is for the law to say whether he was guilty of negligence
or not. Without stopping to consider whether or not
this is so, in a case of this character, we think it is clear
that an important fact is wanting to constitute negligence.

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Wilson r. WlUimantlc Linen Co.

80 as to relieve the defendants from responsibility upon
this ground. It is not enough for a plaintifiF to be negli-
gent. He is not necessarily deprived of the right to recover
simply because he has been so ; but the additional fact must
appear that the negligence contributed substantially to pro-
duce the injury for which he sues. Here the claimed negli-
g^ce consists in not making an examination of the shaft
before putting the belting on it. Had the plaintiff made
the examination what probability was there that he, a non-
expert, taken that day from the street, would have dis-
covered that the countershaft was without collars and
needed them, when there were two other modes used in the
mill for hanging shafts which rendered collars unnecessary,
and in relation to one of them the court finds that the fact
whether the shaft needed collars or not could be ascertained
".only upon a careful inspection." The overseer of repairs,
an expert, who knew that the shaft needed collars, made an
examination of* it just before it was belted, and failed to
discover that it was without them. The superintendent of
the mill, who was also the master-mechanic of all the
defendants' works, had paid daily visits to the room in his
professional capacity for a considerable period of time, and
though he likewise knew how the shaft was hung, and that
it was constructed without collars, he failed to discover that
it was then without them. Had the plaintiff made an
examination he was only bound to look for obvious, mani-
fest defects. Wood (Master & Servant, 749,) says:
" The servant is not required to inspect the appliances of
the business, to see whether or not there are latent defects
that render them more than ordinarily hazardous, but only
to see whether there are defects or hazards that are obvious
to the senses. If the servant, from any source, has the
same information that the master has, he is bound to act
upon it; but the general statement made in some of the
cases, that if the servant has the same means of informa-
tion that the master has, the latter is excused from liability,
must be taken in a qualified sense, and only applies to in-
formation in fact possessed by the servant or that which is

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JANUARY TERM, 1888. 469

Wilson t. WilUnumtlc Linen Ca .

patent and obvious. * * If , as is said in some of tbe
cases, a servant cannot recover if he has the same means of
information that the master has, he would be bound to look
for defects, to inspect the appliances of the business, and
would thus be burdened with the duties that legally and
properly devolve upon the master, and could seldom recover
for injuries resulting from the use of defective machinery."

Such being the case, the finding of the court that the
defect in question could not have been discovered by the
plaintiff without "a careful inspection," is equivalent to
finding that, if the plaintiff had made an examination, he
would not have discovered the defect. Consequently if he
was guilty of negligence in the premises, the negligence
did not contribute to the production of the injury for which
he complains.

But was he guilty of negligence? The claim of the
defendants that he was, is based upon the following finding
of the court: "It was proved to be the understanding
among mill-owners and those having charge of mills and of
their several departments, that it is the duty, not only of
overseers and second-hands, but also of every person who
is employed and directed to connect shafting with machin-
ery, to see that every thing is in proper condition before
attempting to make the connection, and if they fail to do
so they are guilty of negligence."

What have we here tending to show that it was the duty
of the plaintiff to make the examination ? Can a private
understanding among mill-owners and those having charge
of mills, not communicated to their employees, create the
duty? No such understanding had ever been communi-
cated to the overseer of the room even, although he had
been many years in the defendants' employ ; much less to
the plaintiff, who had just come from the street to go into
the defendants' employment. It would seem that such
understanding, even among mill-owners, must have been
confined to machinery in use, requiring their employees to
look out for defects caused by ordinary wear and tear, and
not to new machinery just from the hand of the mill-owner.

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Town of Cromwell o. Connecticut Brown Stone Quairy Co.

In relation to such machinery it would seem that their
understanding must have permitted employees to rely upon
the duty of mill-owners to exercise reasonable care and to
furnish safe machinery in the first instance.

There is no error in the judgment appealed from and it

is therefore affirmed.


In this opinion the other judges concurred.

The Town of Cromwell vs. The Connecticut Beown
Stone Quarry Company.

A town has no power to agree, for a valuable consideration, to discontinue
a highway. The mode of discontinuing highwajrs is fixed by statute,
with a provision for an appeal by any party aggrieved, and a town can-
not, at its mere pleasure, discontinue them.

And a tovm cannot enforce a promise of the other party of whidi its own
promise to destroy a public right was the oonsidenttion.

Action for breach of a contract to construct and open a
highway; brought to the Superior Court in Middlesex
County. The defendants demurred to the complaint, and
the court (JSTovey, «7.) held it insufficient. The plaintiffe
then amended the complaint, and the defendants again
demurred, and at a later term the court (^Sartford^ J".) sus-
tained the demurrer and rendered judgment for the defend*
ants. The plaintiffs appealed to this court. The case is
sufficiently stated in the opinion.

8. A. Robinson and A. W. Bacon^ for the appellants.

S. L. Warner^ for the appellees.

Pardee, J. In 1869 Elisha Bloomer owned a tract of
land in the town of Cromwell through which passed a high-
way which we will designate as highway No. 1. The town

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JANUARY TERM, 1888. 471

Town of Cromwell v. Connecticut Brown Stone Quarry Co.

voted that if he would pay to it $8,000 and at his own
expense construct, deed to it, and keep in repair for five
years, another highway across the land, which we will
designate as No. 2, in a course and manner to be approved
by its selectmen, it would authorize and direct them to dis-
continue No, 1, and if he would execute a written agree-
ment to construct at his own expense, and deed to it with-
in five years thereafter, another highway across the land
which we will designate as No. 8, in a course and manner
to be approved by its selectmen or its committee, and would
secure the performance of this last agreement by a mort-
gage of the land, he might close up No. 2. In the same
year he deeded to the town the land necessary for highway
No. 2, to be held until he should construct and convey No.
8, upon condition that No. 2 should then be discontinued
and revert to himself, and agreed at his own cost to con-
struct and keep in repair No. 2 for five years.

Subsequently the Cromwell Brown Stone Quarry Com-
pany became the owner of the land, and the town having
extended for five years the time within which highway No.
3 should be completed, the company executed its bond to
the town in the sum of $4,000, conditioned upon the per-
formance of the agreement of Bloomer as to highways Nos.
2 and 8. Subsequently the defendant became, and now is,
the owner of the land, and refuses to construct highway
No. 8. The town claims a decree enforcing the immediate
construction thereof and $4,000 damages. Upon demurrer
the case is reserved for the advice of this court.

Bloomer, in entering into the contract to construct and
deed highway No. 8 to the town, took to himself five years
in which to perform it; and in behalf of his successor in
ownership the town added five years more ; so that the con-
sideration underlying his agreement is the promise of the
town that at the end of ten, possibly of more years, a high-
way existing thus long may be discontinued and be enclosed
by him. This promise the town had no power to make or
fulfil. The statute (Revision of 1875, p. 237, chap. 7,
§ 35,) provides that " the selectmen of any town may, with

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Beed V. Copeland.

its approbation, by a writing signed by them, discontinue
any highway or private way therein, except where laid out
by a court or the General Assembly; and any person
aggrieved may be relieved by application to the Superior
Court, to be made and proceeded with in the manner pre-
scribed in the twenty-ninth section of this act." There-
fore discontinuance is not at the pleasure of the town, but
is the result * of judicial investigation and determination
over which it has no control. And notwithstanding the
fact that Bloomer undertook to reserve the right at some
indefinite day in the future to recall his dedication, it may
well happen that long before that day the use of the way
may have been such that the necessities and convenience of
the unorganized public may require its continuance ; and if
such should be the case it must be continued regardless of
votes or contracts.

The right of the plaintiff to ask for a decree compelling
the construction of way No. 8, rests upon its promise to
destroy a public right. But the court will not sacrifice that
right for the purpose of enforcing a private contract con-
cerning it.

It is not necessary to consider other questions raised.

There is no error in the judgment complained of.

In this opinion the other judges concurred.

Mary E. Reed vs. Melvtn B. Copeland and anotheb,

The plaintiff was a niece of T., who was a widower seventy years of age,
and without children, and with a lai^ge estate, and had at his request
and on his promise to compensate her amply, gone to Uve with and take
care of him. After she had lived with him five years he spoke of intend-
ing to make his will and give her a bequest, which he explained, and
asked her if she would be satisfied with it. She replied that she would.
He soon after informed her that he had made the wiU. He did in fset
make the will, which was the one left by him at his death five years

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JANUARY TERM, 1888. 478

Beed v. Copeland.

later, and a part of the bequest to her was ten shares of the stock of the
^tna Life Insurance Company, which was all that he owned. At the
time he spoke to her about the bequest, he said that he should do
more for her from time to time. About a year later he handed her the
certificate for the ten shares, saying *' I give this to you." She took it
and put it in a drawer with her valuable papers. A few months later, the
insurance company having issued to him as the owner of the ten shares,
forty shares of new stock created out of its surplus, he delivered the
certificate to the plaintiff, saying to her, '* This insurance stock of yours

Online LibraryConnecticut. Supreme Court of ErrorsConnecticut reports: containing cases argued and determined in ..., Volume 50 → online text (page 42 of 61)