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Gerrish v. New Haven Ice Co.

the piece of float thrown down by the plaintiff in some way hit the bell-cord and caused the bell to ring.

Considerable time was occupied by the plaintiff in removing the part of the float which he threw down, and during this time Bishop was in and about the engine-house talking with the engineer. Had the broken float been nearer the top of the run, the plaintiff, by standing upon the slide on the south side of the elevator, could have removed the south end of the float. But it was dangerous to attempt to stand upon this slide and work upon the float in the position where it was stopped, from the fact that the float was but little above the point where the slide emerges from beneath the run. There was not sufficient of the slide outside of the south line of the elevator to here afford a foothold for one at work upon the float, and the float was too low for one to work upon it conveniently or safely standing upon the slide. The end of the float could not be removed by a person standing upon a platform on the north of the run. When the engine started the plaintiff was caught by the floats, carried up to the top of the run, and forced down through the opening in the platform made for the passage of the chain and floats, and fell to the bottom of the elevator, receiving the injuries complained of.

When the float started the workman at the top of the run shouted to stop the engine. Had a proper person been stationed at the foot of the run within reach of the bell-cord at this time the engine could have been stopped before the plaintiff was drawn to the top of the run or had received any injury.

The defendant was guilty of negligence in having no suitable person in charge of the bell-cord after Bishop had left it, and in not giving notice to the engineer that the plaintiff was in the run.

The defendant claimed that the plaintiff, on the foregoing facts, was entitled to only nominal damages, and asked the court to hold-1st, that the defendant was guilty of no negligence; 2d, that the plaintiff was guilty of negligence which contributed to the injury; 3d, that if the plaintiff was not

Gerrish v. New Haven Ice Co.

guilty of contributory negligence his injury was caused by the negligence of his co-laborers and fellow-servants. The court overruled all the defendant's claims and rendered judgment for the plaintiff to recover substantial damages. From that judgment the defendant has appealed to this court and has assigned these rulings as reasons of appeal.

In the very recent case of McElligott v. Randolph, 61 Conn., 157, this court said :- "The rule of duty of master to servant is well settled in this state. It is the master's duty to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work, and fit and competent persons as his co-laborers. It is equally well settled that performance of these duties cannot be effected by the simple giving of an order-by their execution being intrusted to another. The designation of an agent, however fit and competent that agent may be, for the execution of the master's duties, does not fill out the sum of the master's obligation nor serve to relieve the master from further responsibility. Until the agent thus selected and empowered in fact acts up to the limit of the duty of his master to act, the master's duty is not done. The master's duty requires performance. He may at his option perform in person or delegate performance to another. In either case reasonable care must be exercised in the doing of the act required to be done by the master." See also Wilson v. Willimantic Linen Co., 50 Conn., 453; Laning v. N. York Central R. R. Co., 49 N. York, 521; Hough v. Texas & Pacific R. R. Co., 100 U. S. R., 213; Davis v. Central Vermont R. R. Co., 55 Verm., 84; Ford v. Fitchburg R. R. Co., 110 Mass., 240; Harper v. Indianapolis & St. Louis R. R. Co., 47 Mo., 567; Brodeur v. Valley Falls Co., 16 R. Isl., 448; Chicago & N. W. R. R. Co. v. Jackson, 55 Ill., 492.

In cases

"The duties so named are constant and uniform. of a complex business there may be the subordinate duty growing out of these duties to establish suitable rules by which the business may safely be conducted and to exercise such supervision as will make it reasonably certain that the

Gerrish v. New Haven Ice Co.

business is being carried on pursuant to such rules. Mulvey v. R. Isl. Locomotive Works, 14 R. Isl., 204; Wabash R. R. Co. v. McDaniels, 107 U. S. R., 454, 460; Pantzar v. TillyFoster Iron Co., 99 N. York, 368; Ford v. Lake Shore &c. R. R. Co., 124 id., 493; Whittaker v. Delaware & Hudson Canal Co., 126 id., 544; Clarke v. Holmes, 7 Hurlst. & Nor., 937.

It is also equally well settled that there is no duty belonging to the master to perform for the safety and protection of his servants that can be delegated to any servant of any grade so as to exonerate the master from responsibility to a servant who has been injured by its non-performance. McElligott v. Randolph, supra; Fuller v. Jewett, 80 N. York, 46; Mann v. Delaware & Hudson Canal Co., 91 id., 495, 500; Corcoran v. Holbrook, 59 id., 517; Flike v. Boston & Albany R. R. Co., 53 id. 549; Murphy v. Smith, 19 Com. Bench, (N. S.,) 361.

The defendant is a corporation. Mr. Bishop is, and was, its superintendent and the general manager of the business. He must be presumed to have had all the powers which his position implies. On the day that the plaintiff was injured he was present and in general charge of the work there being done. He was there undertaking to perform duties which it was the business of the master to perform. If only the ordinary rules of law applicable to the relation of master and servant are contemplated, it is obvious that the Superior Court did not require anything of the defendant which the law does not require, and that there is no error in the judgment. Nolan v. N. York, N. Haven & Hartford R. R. Co., 53 Conn., 472. But the case is much stronger. The defendant neglected its own rule. Mr. Bishop, as the master of the plaintiff, directed him to go into the run to aid in the removal of a broken float. He saw him in the run at work. It is found that "for a person to enter the run when the chains and floats were in operation was dangerous. To avoid the danger the defendant had a rule that the superintendent or person in charge at the foot of the run should at such times cause the engine to be stopped and the engineer to be notified; and that after such notice the engineer should not VOL. LXIII.-2

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White v. Town of Portland.

start the engine upon the ordinary signal, but only upon a special direction to do so." This was a rule for the superintendent to obey. Upon obedience to it the safety of the plaintiff depended. Mr. Bishop was his master, as well as the superintendent. He did not notify the engineer that the plaintiff was at work in the run. Not only did he disobey the rule, but he went away from his post at the foot of the run without putting any one in charge of the bell-cord. In either aspect it was the neglect of the defendant which caused the injury to the plaintiff.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.

ELIZA T. WHITE AND HUSBAND v. THE TOWN OF

PORTLAND.

Hartford Dist., March T., 1893. ANDREWS, C. J., CARPENTER, TOR-
RANCE, FENN and J. M. HALL, JS.

It is a serious question whether the towns should not be required to conform strictly to the statute in the valuation of property for taxation. Where assessors adopt any other rule and on appeal it is claimed that the property has been assessed beyond the value that should have been given it under the rule, there would be no practical difficulty in reducing the valuation to a proper amount.

But where the grievance is merely that the property has been valued higher than other like property, a reduction of the valuation to conform it to the undervaluations might do wrong to other taxpayers, while a raising of the valuation in the other cases could not be done because the parties would not be before the court.

Where a comparison is made of the valuation of the property in question with that of other property, the other property should be similar in kind and near, and the methods of estimating the value should be the same in both cases.

On an appeal taken by a wife with her husband, the husband prosecuting the appeal after her death, testified that a piece of land of seven acres, assessed at $280, was worth only $105. Held that the town could show that the wife, about the time of the assessment, asked $75 an acre for the land.

White v. Town of Portland.

The granting or refusing a continuance of a case is a matter of discretion that cannot be reviewed on error.

[Argued March 7th-decided April 7th, 1893.]

APPEAL from an assessment of certain property for taxation in the defendant town; taken to the Superior Court in Middlesex county, and heard before Prentice, J. Facts found and judgment rendered for the defendant, and appeal by the plaintiffs. The case is stated in the opinion.

T. H. Russell and E. A. Smith, for the appellants.

C. J. Cole and J. M. Murdock, for the appellee.

CARPENTER, J. This is an appeal from the doings of the board of relief of the defendant town, in refusing to reduce the tax list of the appellants for the year 1889. The Superior Court rendered judgment for the town on the second of March, 1892. The appellants appealed to this court.

The first reason of appeal is, that the court erred in ordering the trial to proceed in the absence of Josiah J. White. The facts relating to that matter are these:-Josiah J. White is the surviving appellant, his wife, Eliza T. White, who owned the property assessed, having died pending the appeal. Her husband as administrator entered to prosecute the appeal. The case having been reached for trial the counsel for the appellants moved for a continuance, on the ground that said White was ill and unable to attend court. The motion was supported by the certificate of a physician, purporting to have been sworn to before a notary public in Brooklyn in the state of New York. The court declined to continue the case and ordered the trial to proceed.

The reasons for this action are given as follows:-" The court, from the statements of counsel and facts before it, did not believe that said White was in fact prevented by physical disability from attendance in court, but did believe, as charged by counsel for the appellee, that he was able to be present, and that the motion for a continuance was made for

purposes

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