contributing to his injury, and the Southern New England Telephone Company was free from negligence.

James P. Pigott and Cornelius J. Danaher, for appellant. John W. Alling and James T. Moran, for appellee Southern New England Tel. Co. Seymour C. Loomis, for appellee Meriden Electric R. Co.

HALL, J. It was not unlawful for both defendants to use the same poles. Such joint use was with the consent of both companies, and at the request of the municipal authorities. It has not been shown to be necessarily attended with increased danger. By reducing the number of poles, the highway is used with greater convenience. Full control

of the location of such wires and structures is given to the local authorities by section 3946 of the General Statutes, and section 3 of chapter 169 of the Public Acts of 1893.

The court has found that the defendant telephone company was not negligent. This is a question of fact, which it has been repeatedly held cannot be reviewed by this court upon an appeal, unless it appears that the trial court did not apply the correct standard of duty in reaching its conclusion, or violated some rule or principle of law applicable to the facts as found. McAdam v. Electric Co., 67 Conn. 445, 35 Atl. 341; Dundon v. Railroad Co., 67 Conn. 266, 34 Atl. 1041; Sprague v. Railroad Co., 68 Conn. 345, 36 Atl. 791. The degree of care and duty imposed by law was apparently applied to the defendant telephone company by the trial court in testing its conduct in regard to negligence. Neither its conclusion from the facts found, nor any ruling of the court during the trial, indicates that it did not charge the telephone company with its legal duty as to providing for its employés a reasonably safe place and reasonably safe tools and appliances for their work, and competent co-laborers. But it is said that this rule imposed upon the telephone company, as a matter of law, the duty of inspecting and testing the guy wires or the circuit breakers of the electric railroad company, and that it is apparent that that duty was not placed upon the telephone company by the trial court. There is no such absolute requirement of law. Whether the employer or the employé should discharge such duty must depend upon the circumstances of each particular case. In many instances either may properly perform that work, and in some cases who should perform that duty is a question of fact, to be determined by a variety of circumstances, such as the nature of the task of inspection, the skill, opportunity, and means of the workman to properly do it, and the terms of the contract of employment. McGorty v. Telephone Co., 69 Conn, 35, 38 Atl. 359. The facts found in the present case clearly show, and the court held, that when, in the performance of the work in which they were engaged, it became necessary to handle a wire of the electric rail

road company, or when a contact with such wire was likely to occur, the duty devolved upon the servant, and not upon the master, to first ascertain whether such wire was charged with electricity. As to the negligence of the electric railroad company, the trial court has not decided adversely to the plaintiff. The extent of the injury having been shown, the plaintiff was entitled to a judgment for substantial damages against the defendant who should fail to show either that it was not negligent as alleged, or that the injury was the result of the contributory negligence of the deceased. Sprague v. Railroad Co., supra. In its effort to show that it was free from fault, the defendant electric railroad company failed. From the facts found, the trial court evidently, and we think justly, concluded that the electric railroad company, "in the construction and operation of the appliances" for using in the public streets an agency so dangerous to human life, did not take the required precautions for the safe treatment of such an agency, and "for providing against all dangers incident to its use." McAdam v. Electric Co., supra. But, unless the court erred in holding that Delaney was guilty of contributory negligence, the plaintiff would gain nothing by a decision that both the defendants were negligent. That is the controlling question in the case, and, unless the ruling of the court below upon that point ought to be reversed, it seems unnecessary to consider the other questions raised by plaintiff's counsel.

The complaint alleges that it was not Delaney's "business" to know the unsafe condition of the guy or span wire. It is found by the court "that in doing work which is dangerous, by reason of the possible contact of the telephone wires with the highly charged wires of the street-railway or other companies [and this, the record shows, is work which the linemen of the telephone company are frequently required to perform], the linemen do their own testing," that they know that there are no others employed by the telephone company to do such testing, and that they are supplied with suitable appliances for testing such wires. Delaney was an experienced lineman, acquainted with the duties and dangers of his employment. As against the telephone company, his negligent failure to perform one of the duties of his employment must defeat a recovery for an injury caused by such failure. The relation of Delaney to the electric railroad company was different. As he was not their employé, he was under no contract duty to test their wires or circuit breakers. Under different circumstances, he might have assumed that the electric railroad company was performing its duty, and using suitable and safe appliances to prevent the escape of electricity from the main or trolley wire to the guy wires. But when the acci dent happened he knew, as an experienced lineman, that such was not the fact, and that it was unsafe to act upon such a belief.

He

had been expressly warned of the danger of a contact with wires of this kind. Two instances upon this same work of damage caused by the escape of electricity to the telephone wires by reason of defective circuit breakers had been called to his attention, and a fellow workman, but a day or two before this accident, pointed out to him this particular guy wire as one from which he had himself just received a shock. With such knowledge, and after such warning, Delaney heedlessly pulled the wire, which he was coiling, from the arm of the telephone pole, in such a manner that it would obviously fall, as it did, upon the guy wire, and when, as the court finds, it would have been easy for him to have thrown the wire from the pole so as to avoid contact with the dangerous guy wire. The defendant electric railroad company can be only liable in this action for an injury caused by its negligence to one who was himself in the exercise of ordinary care. Its negligence did not excuse Delaney from exercising such care to avoid an injury. Applying that test to the conduct of Delaney, namely, the care which a person of ordinary prudence and judgment should have exercised under similar circumstances,-and we have no reason to think that any different standard was applied,-the trial court has found he was not in the exercise of due care, as alleged in the complaint, and that his negligence essentially contributed to cause his injury. This conclusion of the court is final. Peltier v. Bradley, Dann & Carrington Co., 67 Conn. 42, 34 Atl. 712. Were it reviewable, we should say it was fully sustained by the facts found.

The action of the court in receiving the evidence offered to prove a discharge by the plaintiff, before he was appointed administrator, of the cause of action against the telephone company, could not have harmed the plaintiff. The court very properly refused to hold that the facts proved constituted a release. Camden v. Fletcher, 4 Mees. & W. 378; Taylor v. Moore, 47 Conn. 278. Had the court held that such facts constituted a release of the alleged cause of action, the record shows that, by reason of the contributory negligence of Delaney, there was no cause of action which could have been discharged.

Manifestly, the plaintiff was not prejudiced by the rulings of the court in permitting the hypothetical question to Boynton, in admitting the notice which had been served upon the electric railroad company, and in excluding proof of the declarations of Butler. We think these rulings can be sustained, but assuming that they were erroneous, as the plaintiff's right to recover beyond nominal damages is defeated by Delaney's contributory negligence, and as these rulings could not have affected the trial or decision of that question, the plaintiff was not injured thereby, and we have no occasion to discuss them further.

We have considered all the questions which we think are involved in the rulings and de

cision of the court below. At least 20 of the 27 reasons of appeal assigned seem to be unnecessary for the proper presentation of those questions in this court. There is no error. The other judges concurred.

FOSKETT & BISHOP CO. v. SWAYNE et al. (Supreme Court of Errors of Connecticut. Nov. 30, 1897.)

HUSBAND AND WIFE--NONSUIT.

1. In an action against husband and wife to foreclose a mechanic's lien, where it was shown that the land was owned by the wife, that she knew of the improvements, had helped to select material, had directed the work, and had evinced an expectation to pay for work and material, it was error to enter a nonsuit.

2. The rule that it is error to enter a nonsuit where a case is tried to a jury, and there is substantial evidence produced by plaintiff on which judgment might reasonably be given on due consideration, applies to cases tried to the court.

Appeal from superior court, New Haven county; Silas A. Robinson, Judge.

Suit by the Foskett & Bishop Company against Walter S. Swayne and others for damages, and to foreclose a mechanic's lien. The case was tried to the court, by whom a judgment of nonsuit was rendered as to the defendant Sarah Swayne, and plaintiffs appeal for alleged errors of the court in refusing to set aside said judgment. Error and nonsuit set aside.

Prentice W. Chase and James Elliott, for appellants. James Kingsley Blake, for appellee the New Milford Sav. Bank. Richard H. Tyner, for appellee Sarah Swayne.

ANDREWS, C. J. Any court is authorized by section 1109 of the General Statutes to grant a motion for a judgment as in case of a nonsuit if, in its opinion, the plaintiff has failed to make out a prima facie case. In Booth v. Hart, 43 Conn. 480, this court said: "In cases tried to the jury, we have established the rule that if there is substantial evidence produced by the plaintiff in support of his cause which should be weighed and considered by the jury a nonsuit ought not to be granted; and we think the same rule should be applied in cases tried by the court." This rule has been elaborated and applied in later cases. Cook v. Morris, 66 Conn. 210, 33 Atl. 994; Thames Steamboat Co. v. Housatonic R. Co., 24 Conn. 49; Town of Canton v. Town of Burlington, 58 Conn. 279, 20 Atl. 602.

It appears that the land sought to be foreclosed belonged closed belonged to the to the defendant Sarah Swayne, to her sole use, and that she is the wife of Walter S. Swayne. The plaintiffs had furnished materials and rendered services in the construction of a house which stood on that land. They were entitled to have a judgment to foreclose the lien on her land provided the materials so furnished and the services so rendered were furnished and rendered by virtue of an agreement with her, or

by her consent, or by an agreement with or the consent of some person having authority from or rightfully acting for her. Gen. St.

§ 3018. What constitutes consent, within the meaning of this statute, is discussed in Hunt-ley v. Holt, 58 Conn. 449, 20 Atl. 469, and Lyon v. Champion, 62 Conn. 75-78, 25 Atl. 392. Now, it seems to us that there was evidence given by the plaintiffs from which the court might fairly have found that the defendant Sarah had given her consent to the furnishing of the materials and the rendering of the services by the plaintiffs. The evidence should be deemed to be true; and all those reasonable presumptions which, according to the ordinary course of events or the ordinary experience of human nature, arise out of the facts proved, should be taken in its favor. Taken with these presumptions, we think the evidence might fairly be claimed to show the consent of Mrs. Swayne. She was the owner of the house, and knew the improvements were being made thereto by the plaintiffs.

She knew that these improvements would largely increase its value. This fact alone might possibly authorize a jury to find that she had given her consent. Gannon v. Shepard, 156 Mass. 355, 31 N. E. 296. Especially might her consent be inferred when it appeared, as it did, that she had taken part in selecting the materials; that she had given directions concerning the work; that she had in some instances countermanded the orders given by her husband, as though she had the superior authority; that she decided whether certain parts of the work should be done or not done, by reason of the cost; and that at times she evinced an expectation to pay for the work and materials. We do not intend to intimate that the evidence was or was not such that, if the case had been submitted by the parties without further evidence, judgment must necessarily have been given for the plaintiffs. The only question now is whether there was evidence upon which such a judgment might reasonably have been given, on due consideration. Upon a motion for a statutory nonsuit, no opportunity for consideration is given. There is error. The nonsuit should be set aside, and the case stand for trial. The other judges concurred.

BREWSTER v. ALDRICH et al. (Supreme Court of Errors of Connecticut. Nov. 30, 1897.)

WORK AND LABOR-RECOVERY ON CONTRACT.

A recovery may be had on a contract upon a count for work and labor, unless the count is insufficient in substance, or there is a material variance.

Appeal from court of common pleas, New London county; Walter C. Noyes, Judge.

Action by Denison D. Brewster against Henry L. Aldrich and others. Plaintiff had judgment, and defendants appeal. Affirmed.

The finding of facts is this: "In the aboveentitled cause the court finds the following facts: (1) The plaintiff brought his action upon the 'common counts,' with bill of particulars; the defendants filed their answer, and the plaintiffs replied,-all as on file. (2) At the commencement of the trial the plaintiff, by leave of the court, amended his complaint by striking out all the counts except the one now remaining. (3) In July, 1889, the plaintiff, who is a painter, agreed with the defendants, who are the owners of a cotton mill in Moosup, Connecticut, to do the labor of kalsomining and painting the interior of said mill one coat for $400, and to do a good job,--one-coat work. It was agreed that the work should be done while the mill was in operation; and the plaintiff examined, and had full opportunity to examine, the premises before making the agreement. (4) The work contemplated under said contract is stated in the bill of particulars, which also includes one day's extra work painting, which was performed at the request of the defendants, and which was worth $2.50. The other items of painting stated in the bill of particulars were contemplated and performed under said contract, and were not allowed as extra work. (5) The plaintiff did a good job,-one-coat work,-considering the nature of the work required and the circumstances under which it was required to be done, and executed his part of the agreement before the commencement of this action. (6) It was agreed upon the trial that the items in the plea of set-off should be treated as payments if the plaintiff was entitled to recover. (7) There is due the plaintiff from the defendants, after deducting such payments from the contract price, a balance of $177.54, for which amount, with $2.50 for said extra work, and interest, judgment was rendered as on file. Upon the trial the defendants claimed and asked the court to rule: (1) That the plaintiff could not recover on said contract, because the plaintiff had not proved the contract referred to in the first item of his bill of particulars. (2) That the plaintiff could not recover on said contract upon the count set forth in his complaint. The court did not so rule, but rendered judgment as on file."

The defendants appealed, and filed two reasons of appeal. The first, that the court erred in not sustaining their first claim; second,

that the court erred in not sustaining their second claim.

Solomon Lucas, for appellants. Frank T. Brown, for appellee.

ANDREWS, C. J. The bill of particulars was applicable only to the count for work and labor. It was the duty of the plaintiff to file his bill of particulars, and to strike out the other counts, before the defendants could be called upon to plead; and of the trial court to see that this was done, before hearing the cause. Corporation v. Baker, 68 Conn. 337, 342, 36 Atl. 785. Under the first assignment no error appears. The finding of facts shows that the plaintiff had proved the contract referred to in the first item of his bill of particulars. Nor under the second. The plaintiff might lawfully recover on the contract unless the count was insufficient in substance, or unless there was a material variance. Nothing appears in the finding or in the record to show either. An immaterial variance could have no effect. The most that can be claimed is that the contract alleged was for an agreed price, and that the plaintiff did not prove the price so alleged to have been agreed upon; and the court rendered judgment for the reasonable value of the work and labor performed. This was not error. Rules of Practice, rule 2, § 3, p. 12. There is no error. The other judges concur.

CROWLEY v. BURKE et ux. (Supreme Court of Rhode Island. May 21, 1894.)

RECOVERY OF STOLEN MONEY.

Under Pub. St. c. 204, § 22 (requiring that, in order to entitle a person to sue for money stolen, he should first make complaint for the crime, and have process issued), where a suit is brought to recover money stolen without compliance with such statute, a verdict for defendant will be directed.

Suit by Bridget Crowley against Richard Burke and wife. From a verdict for defendants, plaintiff petitions for new trial. Denied. John M. Brennan, for plaintiff. George J. West, for defendants.

PER CURIAM. According to the testimony of the plaintiff, the defendant Mrs. Burke robbed her of the $135 for which she sues. This being so, Pub. St. R. I. c. 204, § 22, requires that, in order to entitle her to sue for the money, she should have first made a complaint for the crime, and had process issued on the complaint. This she did not do. The court therefore properly directed a verdict for the defendants. The petition for a new trial is denied and dismissed, and the case remitted to the common pleas division, with direction to enter judgment on the ver dict.

WOOD V. WHAT CHEER LODGE, SONS OF ST. GEORGE.

(Supreme Court of Rhode Island. Dec. 1, 1896.) ACTION AGAINST BENEVOLENT SOCIETY.

Where plaintiff did not exhaust the remedies provided by the by-laws of the defendant society before bringing suit, a nonsuit is properly granted.

Suit by John T. Wood against What Cheer Lodge, Sons of St. George. Plaintiff suffered a nonsuit, and petitions for a new trial. Denied.

George Farnell, for plaintiff. Benjamin M. Bosworth, for defendant.

PER CURIAM. The record shows that the plaintiff did not exhaust the remedies provided by the by-laws of the defendant society, as the law requires him to do, before bringing suit. See Whitty v. McCarthy, 36 Atl. 129. We are of the opinion, therefore, that the nonsuit was properly granted. Exception overruled, and case remitted to the common pleas division, with directions to enter judgment for the defendant for costs.

In re MORRISON'S ESTATE. Appeal of PEOPLE'S TRUST, SAVINGS & DEPOSIT CO.

(Supreme Court of Pennsylvania. Nov. 8, 1897.)

PRESUMPTION OF DEATH-DISTRIBUTION OF PROPERTY-DECREE-HARMLESS ERROR.

Where an administrator has been appointed for one, under Act June 24, 1885, on presumption of death from absence for seven years from his last known place of domicile, and money has been paid to the guardian of the supposed decedent's infant son, the decree in a proceeding by the son, after coming of age, to have the money paid to him without security, because of the father's absence, unheard from, for over 20 years, should include an adjudication on the effect of the father's prolonged absence, and rest thereon the order for payment of the money, but will not be reversed because, to understand the decree, and find the conclusion of the court that death is presumed from the absence, it is necessary to treat the entire opinion as part of the decree; it appearing that no harm can come therefrom.

Appeal from orphans' court, Lancaster county.

In the matter of the estate of Cassius W. Morrison, deceased. From a decree ordering money to be paid, without security, to George Morrison, son of deceased, by the People's Trust, Savings & Deposit Company, his guardian, said company appeals. Affirmed.

George Nauman and A. J. Eberly, for appellant. W. H. Roland, for appellee.

WILLIAMS, J. This appeal presents a record that is by no means a satisfactory one. Letters of administration were issued upon the estate of C. W. Morrison in November, 1891 under an order of the orphans' court of Lancaster county, which were based on an adjudi

cation by that court that a legal presumption of the death of Morrison had been established under the proceedings authorized by the act of June 24, 1885. Some of the evidence upon which the adjudication was made is furnished to us in the paper books, and it presents the following facts: The alleged decedent, C. W. Morrison, was prior to 1875 a resident of Lancaster county. During the early part of that year he removed to the state of Kansas, and settled at Ft. Dodge. His brother testifies on this subject: "I got some letters from him in Kansas prior to 1876. I received one letter from him in September, 1876. I answered that letter soon after receiving it, and have heard nothing from him since the last letter I wrote to him." This showed very clearly that the place to look for Morrison was at Ft. Dodge, and that the absence that the statute contemplated was from his last known place of residence. This was not Lancaster county. A search made in that county had no significance whatever. Francis v. Francis, 180 Pa. St. 644, 37 Atl. 120. He must have been absent from, and unheard-of at, his last place of domicile, which, if this is all the evidence presented to the court below, was Ft. Dodge. It is possible, and perhaps we should presume, that other and appropriate testimony was before the court, and that its decree was made in view of it, as otherwise the decree could not be supported. But the administrator appointed under the adjudication and decree referred to has finished his work, and there is now in the hands of the defendant, the guardian of the son of the supposed decedent, a considerable sum of money. The son is now of age, and wishes to come into possession, as the heir at law of C. W. Morrison, of this money. proper course for him to pursue was to present to the orphans' court his petition setting forth the facts we have recited, including the appoint

The

-ment of an administrator for his father's estate under the established presumption of his father's death, and the raising of the fund then in the hands of his guardian, and asking an order directing its payment to him without his being required to give security for its return, for the reason that his father's absence, unheard from, had continued for upwards of 20 years, and still continued. Upon the hearing on his petition these facts should have been shown, and the effect of this showing should have been passed upon by the court, and the order should thereupon have been made. In the case before. us the petition contains no reference to the administration, or to the proceedings under the act of 1885, makes no averment about the length of the absence of Morrison, and sets up no right to the money based upon his presumed death. Had not the answer presented some of the facts, there would have been nothing before the court to call its attention to the question involved, or the possible effect of the decree it was asked to make. The learned judge of the .orphans' court, with great patience and entire disregard of form, took notice of the question raised by the answer, and entered upon a care

ful consideration of it. The result of this consideration is embodied in his opinion, in which he goes over the former action of the court, the continued absence of the alleged decedent, covering a period of more than 21 years, and concludes that the presumption of actual death has now arisen. He then directs the payment of the money by the guardian to its ward, without requiring security for its return. This decree rested on the right ground, but it is informal. It should include an adjudication upon the effect of the prolonged absence of Morrison, and the order for the payment of the money should rest upon that adjudication, just as the order for the appointment of the administrator rested on the adjudication upon the effect of absence from his last place of residence for seven years, unheard from. To understand the decree appealed from, it is necessary to treat the entire opinion of the learned judge as a part of it. This is not good practice, and ought not to be encouraged; but, under the special. circumstances of this case, we are disposed to think that no harm can come from its affirmance on that basis. It is accordingly affirmed; the record costs to be paid from the fund.

BONNER v. PITTSBURGH BRIDGE CO. (Supreme Court of Pennsylvania. Nov. 8,

1897.)

INJURY TO EMPLOYE -DEFECTIVE APPLIANCES. Whether an alleged defect in machinery causing injury to plaintiff could have been remedied by a well-known appliance in general use was a question for the jury.

Appeal from superior court, Allegheny county.

Action by Mannus Bonner against the Pittsburgh Bridge Company. Judgment for plaintiff was affirmed by the superior court, and defendant appeals. Affirmed.

The following is the opinion of the superior court (Orlady, J.):

"The plaintiff recovered against the defendant a verdict of six hundred dollars, as damages for injuries received in an accident which happened while he was at work for the defendant, in operating a large crane used for raising heavy articles. The machinery was so constructed as to be operated in either slow or fast gear, the change from one to the other being made by the operator of the machine by means of a handle bar, while an accidental change of the gear could be prevented only by an appliance on the crane known as a 'safety lock'; and the strain on the handle when in fast gear was about six times as much as when in slow gear. The plaintiff describes the injury as follows: 'We done as directed. The girder was raised up by three men with the crane. Two of the men were called back to the fore end of the girder after the girder was raised up. That left the crane to me. We had been directed to push the fore end in, -of the girder; and when the girder was half