[3] The next point urged is that it was error to refuse to charge as follows: "It was not negligence for the defendant's engineer to fail to see the red signal on the switch target at Manasquan when the accident happened." Sea Girt and having indicated the track to betion of negligence under the circumstancès, clear with no open switches, it was a proper therefore, was one of fact for the jury, and question, under the facts above indicated, for it was not error to refuse to charge as rethe jury to determine whether the defendant quested. had properly guarded the switch in question. This switch was close to the freight station where the train was to make a scheduled stop, and yet the train was traveling on a very dark night in a very thick fog at the rate of 25 or 30 miles an hour, when the engineer observed the red switch light only Defendant's contention is that it was diffithree car lengths ahead and threw on the emergency brakes and put on the reverse, and cult for the engineer to see the red light by yet the train ran its full length of 17 cars into reason of the fog, and that as soon as he saw the switch and about 100 feet beyond the it he stopped his train as quickly as possible, We do freight station before it could be stopped. and was not, therefore, negligent. The question of the negligence of the en- not think this argument is sound, for it asgineer under such circumstances was clear-sumes that it was not negligence for the enly for the jury to determine. Nor can it be gineer to approach the switch, which was adsaid that plaintiff's testate, who was riding jacent to the freight station where the train inside of one of the cars, where he had a was scheduled to stop, at such a rate of speed right to be, assumed the risk, as incidental to in the fog, that he could not see the red light the natural and ordinary operation of rail-in time to avoid running into the open switch. road trains, that proper orders would not be given at Farmingdale respecting the condition of the switch at Manasquan, nor that the engineer would run the train at such a rate of speed in the fog as not to have it under proper control on approaching the switch in question, and there was no evidence in the case that any negligence of any fellow servant was obvious or should have been known to the decedent, and furthermore it has been settled in this state that the common-law doctrine of assumption of risk, where it arises solely and directly out of the negligent acts of fellow servants, has been abolished by the federal Employers' Liability Act. Swank v. P. R. R., 111 Atl. 44. The motion for a nonsuit was therefore properly refused, and for the same reasons the motion for the direction of a verdict was also properly refused. [2] It is next urged that the court erred in refusing to charge as requested the following: "It was not negligence for the railroad to fail to warn the engineer at Farmingdale that the switch at Manasquan was open to admit a train to the west-bound track." The argument in support of this proposition is that no negligence can be inferred from the defendant's failure to give an order at Farmingdale that the switch at Manasquan was open so as to carry the train on to the westbound track, but this has no merit, because the uncontradicted testimony was to the effect that it was a rule or custom of the road that, when a green light was displayed at Farmingdale and no special orders given, it was an indication that there were no trains in the block and no open switches, and that the train might proceed at its specified speed, and would not have to reduce its speed on approaching every switch in anticipation that it might have been turned or tampered with The question of negligence under the circumstances was for the jury to determine. [4] The next point urged for a reversal is the refusal of the trial court to charge as requested that: "The decedent assumed the risk of the negligence of his fellow servants which you may find from the evidence were obvious or known to him or should have been known to him." This assumes that the engineer knew or should have known from the evidence that the switch was open and that such knowledge this request to charge was properly refused was chargeable to the decedent. We think because there was no evidence that the neg ligence of any fellow servant was obvious or known or should have been known to the deGeneral of Railroads, 110 Atl. 829, and Swank cedent, and we held in Anderson v. Director v. P. R. R., supra, that such negligence could not be considered as a risk assumed by the employee. [5] It is next contended that the trial court erred in permitting certain questions to be asked and answered, over defendant's objection, concerning the condition of the signals at Farmingdale. The argument is based upon the claim that the negligence charged in the complaint was failure to guard the switch at Manasquan, and that the conditions at Farmingdale had no bearing on the conditions as they existed at Manasquan. The testimony shows, however, that Farmingdale was the beginning of the signal block which ended at Sea Girt and in which the Manasquan station was located, and that the signals maintained at Farmingdale, in the absence of special orders, governed the conduct of the train and indicated the condition of the track from that station all the way through to Sea Girt, and to that extent "guarded the switch" at Manasquan; hence the questions concerning the conditions of the signals at Farmingdale (113 A.) of the negligence of the decedent's fellow [tion of partial dependents from that provided servants in charge of this block and of the signal station at Farmingdale and of the engineer of the train also. in Gen. St. 1918, § 5349, does not apply to compensation for the death of one injured before, but dying after, it went into effect, as the right of compensation arises from the contract of employment, of which the statute in force at the time of the injury forms a part, especially in view of Gen. St. 1918, § 5350. 2. Master and servant 388-Statute construed as to compensation to partial dependents in case of death; "proportionate sum." [6] The last assignment of error is that the trial court erred in permitting the plaintiff to amend her complaint at the trial, over defendant's objection, by charging as a further act of negligence on the part of the railroad company that the engineer in charge of the train ran into the open switch with the red lights against him. It is argued that the amendment entirely changed the character of the negligence complained of from negligence charging the improper guarding of the switch to negligence charging the defendant's engineer with failure to properly observe the signal at the switch, and therefore could not be made without giving the defendant an op-ency, the compensation paid partial dependents portunity to meet such a situation. The defendant, however, cannot successfully claim surprise, because in his opening to the jury defendant's attorney stated that the engineer would testify that "As he got within a few car lengths of this red lamp, he saw it. The reason he didn't see it sooner was because of the condition of the weather. As soon as he saw the red lamp, he immediately applied his brakes to bring his train to the proper standstill, knowing that he was going on to the track where he didn't suppose and really knew he had no right to be" -and then continued as follows: "We contend that from these circumstances there can be no inference at all drawn of negligence." Clearly the defendant was prepared for and expected the engineer to so testify, which he later did, without objection, and before the motion to amend as above indicated was made, and therefore defendant was neither surprised nor prejudiced by the amendment. [7] An application to amend a pleading at the trial is addressed to the discretion of the court, and the decision thereon is not reviewable on appeal. Bruch v. Carter, 32 N. J. Law, 554; Lutlopp v. Heckmann, 70 N. J. Law, 272, 57 Atl. 1046. The subject-matter of this amendment was such as the court could properly make under sections 23 and 24 of the Supplement to our Practice Act (P. L. 1912, p. 381). Finding no error in the record, the judg ment will be affirmed. Under Gen. St. 1918, § 5350, providing that compensation in case of death shall be divided among those partially dependent, and section 5349, providing that, when there is no one wholly dependent on a deceased employee, compensation shall be paid those partially dependent in such "proportionate sum" as may be de termined according to the measure of depend is to be in such proportion to the compensation that would be paid those wholly dependent as the degree of dependency bears to total dependency. Case Reserved from Superior Court, New Haven County; James II. Webb, Judge. Proceeding by Helen G. Quilty for compensation for the death of Francis Quilty, opposed by the Connecticut Company, employer. Compensation was awarded pro forma by the compensation commissioner for the Third district, and the case was reserved by the superior court for the advice of the Supreme Court of Errors. Superior court advised to affirm. The following facts appear from the finding and award: Francis Quilty, while in the employ of the defendant, was injured on June 7, 1919, în the knee, resulting in an abscess, which caused incapacity from July 19, 1919, to August 23, 1920, and which resulted in his death on August 23, 1920. Compensation was paid the deceased to the time of his death. His average weekly wage was $18.88. He was 19 years of age and unmarried. At the time of his injury he lived with his mother, in a household consisting of his mother, a brother James, who worked, a brother Stanley, attending school, and a maternal grandmother, an invalid. The income of the claimant, his mother, consisted of $26 per week, of which James contributed $11 and the deceased $15. Such sum was necessary for the reasonable support of the household. The claimant was QUILTY v. CONNECTICUT CO. partly dependent on the deceased. The said Francis Quilty received from the home that (Supreme Court of Errors of Connecticut. which cost an amount found to be $5.20 per (96 Conn. 124) April 5, 1921.) 1. Master and servant 349-Compensation for death governed by law in force at time of injury. Laws 1919, c. 142, § 6, materially changing the method of determining the compensa week. The claimant claimed: First, that the case was covered by the law in force at the time of the death. This claim was overruled. Second, that as a partial dependent she should be awarded $9.44 per week, being half of the average weekly wage, and being | tive obligations, and are also fixed and dea sum less than the average weekly con- termined by the statute in force at the time tribution. This claim was overruled pro of the injury. The act of 1919 clearly does forma. The commissioner awarded and adjudged, pro forma, that the respondents pay the claimant, as compensation for the death of said Francis Quilty, $5.45 per week for the period beginning August 23, 1920, and continuing for 312 weeks, subject to any proper modification in case of the death of the claimant, and subject to such modification or adjustment, if necessary, as may be proper by virtue of any judgment which may be rendered as a result of proceedings consequent upon this pro forma award, and further awarded and adjudged that the respondents pay forthwith $100 for burial expenses. The commissioner found that the claim involves doubtful questions of law, which the public interest requires should be finally and definitely decided, and these are stated seriatim in the opinion. Cornelius J. Danaher, of Meriden, for plaintiff. Seth W. Baldwin, of New Haven, for de fendant. CURTIS, J. (after stating the facts as above). [1] The question first presented for decision by the reservation is this: "Is the statute applicable to the rights of dependents the statute in force at the time of the injury, or that in force at the time of the death of the injured employee?" 17, Francis Quilty was injured on June 1919, and he died on August 23, 1920. In the interval between his injury and his death. chapter 142 of Laws of 1919 came into effect, which act in section 6 materially changed the law as to the method of determining the compensation of partial dependents from the method in force at the time of the injury and found in section 5349 of the General Statutes. The claimant urged that section 5349 relates to a matter of procedure and remedy and that it was at once superseded by the later act. She also urged that, as compensation to a dependent does not arise until the decease of the employee, the measure of the compensation should be determined by the law then in force. As we said in effect in Schmidt v. O. K. Baking Co., 90 Conn. 220, 96 Atl. 963, in dealing with a case of an employee, the right to compensation arises from the contractual relation between the employer and employee existing at the time of the injury, and the statute then in force in relation to compensation formed a part of the contract of employment, and determined the substantive rights and obligations of the parties. The obligations of the employer to dependents of an employee in case of the death not relate to procedure merely but affects substantive rights and obligations. General Statutes, § 5350, which provides that "questions of dependency shall be determined in accordance with the fact, as the fact may be at the time of the injury," supports the above ruling. [2] The remaining question presented for decision is this: "How is compensation reckoned in case of partial dependency under the statute in force before the amendment of the Compensation Act made in 1919?" General Statutes, § 5350, provides that, in case compensation is to be paid to more than one partial dependent, "the compensation in case of death shall be divided among them according to the relative degree of their de pendence." When the total amount of compensation to be paid to partial dependents is fixed. the above provision determines its division among them. To determine this amount we turn to General Statutes, § 5349, which provides that: "Compensation shall be paid on account of death resulting from injuries within two years from date of injury as follows: (a) For burial expenses, one hundred dollars; (b) to those wholly dependent upon the deceased employee at the time of his injury, a weekly compensation equal to half of the average weekly earnings of the deceased at the time of his injury; (c) in case there is no one wholly dependent upon the deceased employee, to those partially dependent upon the deceased employee at the time of his injury, a weekly compensation not exceeding that payable to those wholly dependent and in such proportionate sum as may be determined according to the measure of dependency; but the compensation payable on account of death resulting from injuries shall in no case be more than fourteen dollars or less than five dollars weekly." The amount to be paid to partial dependents is the same, whether there is one or more partially dependent, and, if there are more than one partially dependent, section 5350 provides for the method of division among them. Therefore the term in section 5349 reading, "in such proportionate sum as may be determined according to the measure of dependency," relates to the method of determining the amount of compensation to be paid partial dependents. A proportionate part of some sum is to be taken. An examination of the act leaves no reasonable alternative, except to find that term "proportionate sum," in section 5349, relates to the weekly compensation to be paid the wholly dependent mentioned in the same paragraph. Under this construction a partially dependent may conceivably receive any frac tional part of the weekly compensation to be (113 A.) maximum and minimum provision a sum in excess of the weekly aid received by the partially dependent from the employee may in some circumstances be awarded such dependent. Of the several ways of construing section 5349 suggested, the foregoing seems the more reasonable and more in accord with the terms and spirit of the statute, when viewed in the light, not of this case merely, but of all possible cases. The sum fixed by section 5349 as the amount to be paid those wholly dependent is one-half of the average weekly earnings of the deceased at the time of the injury. Therefore the amount to be paid to partial dependents is such proportion of the compensation that would be paid the wholly dependent as is the measure (or degree) of the dependency of the partial dependents. Twenty-six dollars was the weekly sum necessary for the reasonable support of the claimant's household, and the deceased provided weekly $15 of this support. Therefore in this case the claimant's measure of dependency on the deceased was fifteen twentysixths of the sum necessary for the reasonable support of her household. The commissioner, therefore, in his pro forma award, correctly awarded compensation to the claim ant. The superior court is advised to affirm the award of the commissioner. The other Judges concurred. (36 Conn. 139) Charles Hadlai Hull, of New London, for appellant Shay Fertilizer Co. Abraham S. Bordon, of Hartford, for appellee. BURPEE, J. This action on the common counts for goods sold and delivered at an agreed price stated in a bill of particulars, the plaintiff brought against two defendants. The defendant called C. M. Shay & Co. answered by a general denial. The other defendant did not appear. The record shows that it was admitted on the trial that the plaintiff made the bargain and sold and delivered the goods described to one of the defendants, and that the only question raised was whether C. M. Shay & Co. was that defendant. No question of law was raised, Upon the evidence, the trial court found this issue of fact in favor of the plaintiff. In this appeal, the defendant asks the court to examine the evidence and decide that the conclusions of the trial court were wrong. The powers of that court and the province of this court on appeal have been so fully explained in recent cases that they should no longer be misunderstood or misinterpreted. 112 Atl. 645; Bell v. Strong, 95 Conn. Plum Tree Lime Co. v. Keeler, 92 Conn. 1, 101 Atl. 509, Ann. Cas. 1918E, 831; Johnson V. Shuford, 91 Conn. 1, 98 Atl. 333; Seward v. Seward & Son Co., 91 Conn. 190, 99 Atl. 887. [1] An examination of the record in this appeal demonstrates that the trial court, upon the conflicting evidence, logically, reasonably, and in accordance with the principles of law, made the conclusions and inferences EASTERN BURLAP BAG CO. v. C. M. SHAY stated in its finding. Therefore they are FERTILIZER CO. et al. (Supreme Court of Errors of Connecticut. April 5, 1921.) 1. Appeal and error 1011(1) trial court conclusive. Where it appears that the trial court, on conflicting evidence, reasonably and in accordance with rules of law made the conclusions and inferences stated in its finding, the finding is final. 2. Sales 52(6)-Evidence held to show sale was to defendant. Evidence held to support finding that the contract of sale sued on was made with defendant buyer, and not with another buyer. final. The finding cannot be corrected as the defendant requests. [2] In its reasons of appeal the appellant further asserts that the trial court erred in Finding of overruling certain so-called claims of law made by the appellant concerning the judgment to be rendered. These are not really claims of law, but claims of fact. The single question raised by the pleadings and presented on the trial was whether the contract of Isale on which the action was brought was made by the plaintiff and the defendant appellant. Bearing on this question, evidence concerning subordinate facts was introduced, by which the defendant appellant, while admitting that the plaintiff made a contract of sale and delivered the goods, attempted to show that the transaction was with the other defendant. Considering this evidence, the Action by the Eastern Burlap Bag Com-trial court has made a finding of facts which pany against the C. M. Shay Fertilizer Com- is not contrary to or unsupported by the subpany and another on the common counts ordinate facts which it might have found brought to the court of common pleas in from the evidence. The only possible claim Hartford county and tried to the court. of law which could be made in such circumJudgment for the plaintiff against the de- stances is that the court did not reach its fendant C. M. Shay Fertilizer Company, from conclusion logically, reasonably, and legally. which that defendant appeals. No error. Examination of the evidence makes it plain Appeal from Court of Common Pleas, Hartford County; Edwin C. Dickenson, Judge. that such a claim has no foundation. For instance, C. M. Shay, the president of each of the defendant companies, admitted in his testimony that he verbally made this contract, but stated that he was acting as the agent, not of the defendant appellant, but of the other defendant, and so informed the plaintiff. The plaintiff denied this statement. C. M. Shay further admitted that he dictated a letter confirming the contract and giving directions for the delivery of the goods, but he testified that he was then acting for the other defendant, and that this letter was by mistake written upon the stationery and under the heading of this defendant and signed, "The C. M. Shay Co., C. M. Shay, Pres." No evidence was offered to support or contradict his statement concerning such a mistake. But the court was not bound, as a matter of law, to believe this testimony. Phoenix Mutual Life Ins. Co. v. Opper, Adm'r, et al., 75 Conn. 295, 53 Atl. 586. It was within the province solely of the trial court to weigh all the testimony and decide what the subordinate facts were, and to determine what effect this decision should legally have upon the determination of the main question. With a determination thus made this court will not interfere. There is no error. The other Judges concurred. (96 Conn. 84) LIPKOWITZ v. FREEDMAN. (Supreme Court of Errors of Connecticut. April 5, 1921.) 1. Husband and wife 138 (2)-Authority to sell interest in realty could be created by parol. A husband's authority to sell his wife's interest in certain realty could be created by parol. where the agent was a general agent of unlimited discretion in selling his principal's interest or in buying the other party's interest in the particular premises. 5. Principal and agent 92(1)-Delivery of contract to agent delivery to principal. Where an attorney in holding a contract for the sale of realty acted for each of the parties by their express authorization, delivery to such agent under the circumstances was delivery to his principal, the seller. 6. Evidence 248 (2)—Declarations of seller's agent admissible. In suit for specific performance of a wife's contract to sell her interest in certain realty made by her husband as her agent, declarations of the husband in the office of the attorney for plaintiff buyer relative to the subject of the agency and made in its course held admissible. Appeal from Superior Court, New Haven County; Gardiner Greene, Judge. Suit by Zeba Lipkowitz against Dora Freedman for specific performance of an agreement to convey land or for damages for its breach. From judgment for plaintiff and decree for conveyance of the land, defendant appeals. No error. The plaintiff and defendant were the joint owners of No. 40 Gilbert street, New Haven. Plaintiff employed Mr. Koletsky, an attorney, to make an amicable adjustment with defendant of their differences regarding this property and to put an end to the tenancy in common therein. Mr. Koletsky wrote defendant requesting her to call on December 11th at his law office regarding these matters. At the time named defendant came to Koletsky's office, and he told her that Mrs. Lipkowitz, the plaintiff, was going to either buy the house or sell it, and the defendant might have the choice of buying or selling it at the highest price either would give the other, and that each could avoid a lot of trouble by 2. Specific performance 120-Agency for both agreeing to buy or sell to the other at vendor may be established by parol. the highest figure. The defendant said to this: In suit for specific performance of an agreement for the sale of land signed by an agent, in the absence of statutory provision the agency may be established by parol. 3. Frauds, statute of 116(5)—Written contract signed by agent to sell land binds principal. When an agency to sell land is established by parol, a written contract or memorandum signed by the agent so authorized will bind his principal. 4. Principal and agent 103(6)-Rule that authority of agent to sell land must be specific without application to case of general agency. The rule that a parol agency to sell land must be specific as to the description of the property, etc., has no application to a case "I am satisfied, but when it comes to buying or the selling of the house, my husband has everything to say; he is the boss." Mr. Koletsky and defendant then arranged a time when defendant's husband could come "to make an end of this." At the time named, Mr. Freedman came to Koletsky's office and said: "I have everything to do with the property. * * Mrs. Freedman sent me. I came to do what is necessary. What is your plan?" Plaintiff and Mr. Freedman then agreed that Koletsky should act for both owners and sell to the highest bidder. Plaintiff finally offered $4,700, and this |