exit furnished the only permissible other terminus, as the then defendant contended, or whether, as the then plaintiff, the present defendant, contended, such other terminus might, at the convenience of the person entitled to exercise the right, be any point along or within the boundary lines of the strip upon which the easement was imposed. This was the issue distinctly stated in the opinion. Sweeney v. Landers, Frary & Clark, 80 Conn. 575, 578, 69 Atl. 566. We decided in favor of the latter contention. All the statements of the opinion were made with a view to the narrow issue before the court, and to express our conclusions thereon, and all that we held was that the servitude was not one limited to a user of the way by the owner of the dominant tenement for the sole purpose of communication between it and the street, but that he, as incident to his use and occupation of the dominant tenement, was entitled at his pleasure to seek other termini within or upon the borders of the way as points of communication with the dominant tenement. We did not hold that he could seek other termini, both without the bounds of the dominant estate for the purpose of communication between them, or that he could by any acquisition of land annex to such acquisitions the right which he is entitled to enjoy as the occupant of B, or thus in any degree enlarge the right originally granted. On the contrary, this right, as long as it remains unchanged by grant or prescription, must continue what it was in its creation, and one appurtenant to B alone. The plaintiff cites cases in support of the proposition that the owner of the servient estate may erect fences along the sides of the way. Whatever right the plaintiff as such owner might in the present instance have to erect a fence along the borders of his own land to the exclusion of the defendant therefrom, it is clear that he can have no greater right to thus exclude the defendant from passing to and fro across the border line between A, which he neither owns nor occupies, and the way, than he has to exclude him from passing to and fro across the line at Main street. The defendant's right to cross the former line is one which is dependent upon the permission of the owner or occupant of A, and not upon the plaintiff's favor. The case presents no question as to the defendant's right to use the way in connection with land other than B by means of travel which passes over B in its route between the way and such other land. The only right of passage concerned is one of direct passage between B and A wholly over the passway. The cases relating to the former situation which have been cited are therefore not in point. There is no error. The other Judges con cur. (83 Conn. 97) ARNOLD v. CONNECTICUT CO. (Supreme Court of Errors of Connecticut. Feb. 3, 1910.) 1. APPEAL AND ERROR (§ 928*) - PRESUMPTIONS-CORRECTNESS OF INSTRUCTIONS. The court on appeal from a refusal to set aside the verdict as against the evidence will assume that the jury was properly instructed where no questions are raised as to the charge. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3749-3754; Dec. Dig. § 928.*] 2. MASTER AND SERVANT (§ 229*)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE. Whether a servant injured while at work was guilty of contributory negligence depends on whether he acted as an ordinarily prudent man would have done under the circumstances. Servant, Cent. Dig. §§ 674, 683; Dec. Dig. § [Ed. Note.-For other cases, see Master and 229.*] 3. MASTER AND SERVANT (§ 289*)—INJURY TO SERVANT CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. repair car in mending a trolley wire, and Whether a lineman, engaged on top of a thrown to the ground by the recoil of the wire when it pulled out of an improperly constructed joint, was guilty of contributory negligence for the jury, where he knew the style of joints in not making an inspection of the wire, was made on the wire, but not whether they were properly made, nor that the joint which broke was there. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*] 4. MASTER AND SERVANT (8 217*)-ASSUMPTION OF RISK-KNOWLEDGE OF DANGER. A servant assumes the ordinary hazards incident to his employment and the hazards of which he has knowledge, either actual or constructive, arising after his employment, where, with a comprehension of the risk and without any promise that the unsafe conditions shall be removed, or other inducements from the master, he voluntarily continues his employment, and a servant employed to repair a defective and unsafe appliance assumes the risks incident thereto. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 574-600; Dec. Dig. § 217.* For other definitions, see Words and Phrases, vol. 1, pp. 589-591; vol. 8, pp. 7584-7585.] 5. MASTER AND SERVANT (§ 280*)-INJUry to SERVANT-ASSUMPTION OF RISK-EVIDENCE. In an action for injuries to an electric railway lineman while at work on a trolley wire, evidence held to justify a finding that he did not assume the risk of a defect in the construction of the trolley wire. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 280.*] Appeal from Superior Court, Fairfield County; Edwin B. Gager, Judge. Action by Albert A. Arnold against the Connecticut Company for damages for personal injuries. There was a verdict and judgment for plaintiff, and defendant appeals on the ground that the verdict was against the evidence. Affirmed. Joseph F. Berry, for appellant. William A. Griffin, for appellee. know whether they were properly soldered or not. By an inspection made from the top of a car at the sleeve there is no difficulty in seeing whether the sleeve is properly soldered. It is difficult from any other inspection than one so made that the top of the sleeve can be seen, to ascertain whether it has been properly soldered. The complaint charges the defendant with negligence in failing to cause an inspection to be made of its trolley wire and the sleeve in question, and in permitting them with knowledge of their defective and dangerous condition to remain in that condition. The defendant offered no evidence. It appeals from the court's refusal to set aside the verdict upon the ground that the plaintiff's evidence shows that he was guilty of contributory negligence, and that he assumed the risk of injury from the defective sleeve. THAYER, J. The plaintiff's evidence | sleeve mentioned. He knew that such sleeves tended to prove that the defendant operated were in use upon the system, but did not an electric street railway by the overhead trolley system. There was a curve in the railway, where, at the junction of two streets, it turned from one into the other. The trolley wire at the curve was suspended and held above the center of the track by several wires called "pull-offs" attached to it or to a bridle at different points around the curve, and fastened to poles and trees at the side of the street upon the long side of the curve. Two hundred and twenty feet north of the center of this curve there was a "sleeve," so called, in the trolley wire. Such sleeves are used to connect the trolley wire when it becomes broken, the ends of the wire being passed into the ends of the sleeve, which is a metal tube, and brought out of a hole in the top of and midway between the ends of the sleeve and bent back. The sleeve is then filled with solder, if the work is properly done, so that the wire cannot be pulled from the sleeve. Half way between the sleeve and the center of the curve there was a span wire extending across the street and attached to poles at each end. The trolley wire was attached to this and supported by it. We are to assume that the jury were properly instructed as no questions are raised as to the charge. Whether the plaintiff was chargeable with contributory negligence depends upon whether he acted as an ordinarily prudent man would have done under the circumstances. This was a question of fact At the time of his injury the plaintiff was for the jury. From the evidence before us a lineman and repairman in the employ of we cannot say that they were not warranted the defendant. He acted only under orders. in finding that issue for the plaintiff. The His duties were, when directed, to repair, servant assumes the ordinary hazards incichange, pull down, and string up wires, and dent to his employment, and also those hazif anything was wrong with them to set it ards of which he has knowledge either actual right. He was sent that morning with three or constructive arising after his employment, other linemen to true up the trolley wire atif, with a comprehension of the risk and this curve, it having sagged toward the in- without any promise that the unsafe condiside of the curve. Having loosened the captions shall be remedied or other inducement and comb by which the trolley wire was attached to the span wire so as to get more slack in the trolley wire they proceeded to pull back the trolley wire so that it should be over the center of the track and to fasten it there by tightening up the pull-off wires. After having adjusted about half of these and while at work upon another at about the center of the curve, the trolley wire, because not soldered in as it should have been, pulled out of the sleeve, and by its recoil the plaintiff was thrown from the top of the repair car where he was working and received injuries. The trolley wire had been connected by this sleeve by a former owner of the railway from whom the defendant acquired it. The sleeve was left unsoldered with the knowledge of the superintendent of the former owner. The defendant had no inspector of its overhead system and no general inspection of the lines was made by it. This was known to the plaintiff. He was 30 years of ⚫ age, had been a lineman and repairman upon electric systems for 10 years, and, for 9 months prior to the accident, had been in the employ of the defendant in that capacity upon its trolley and electric light systems at South Norwalk where the injuries occurred. He did not know of the existence of the from the master, he voluntarily continues his employment. Hayden v. Smithville Mfg. Co., 29 Conn. 548, 558; Dickenson v. Vernon, 77 Conn. 537, 542, 60 Atl. 270; Girard v. Grosvenordale Co., 82 Conn. 271, 275, 73 Atl. 747. Within this rule are included those cases where a servant employed to repair a machine or other appliance which has become defective and unsafe receives an injury caused by defects in such appliance. By accepting the service he assumes the risks incident thereto. He has notice that it is defective, and cannot complain that it is so although the master is to blame for its condition. It is claimed that the present case falls within this rule, that, having undertaken to true up the trolley wire at the curve, the plaintiff had notice that the trolley wire was defective and assumed the risk of any injury which might come to him from defects in the wire. There was no evidence, and it is not claimed, that the sagging of the wire was in any way due to the defective conditions at the sleeve. There was evidence tending to show that it was caused by the sagging or leaning in towards the track of the pole to which the pull-off wires were attached. If this were so, notice of the fact that the wire was sag ging would be no notice to the plaintiff of any defect or weakness of the trolley wire at the sleeve or anywhere else. He was not informed that the wire was defective. On the contrary he would from his instructions understand that he had to deal with a sound wire. He was to adjust or true up a sound wire, not to repair a defective one. Had he found on arriving at the curve that the sagging was due to the defective condition of the wire at the sleeve the case might have been different. He might then by applying force to the wire until it gave way make himself chargeable with contributory negligence. But as matters stood he had no knowledge actual or constructive of the defective condition. There can be no assumption of a hazard without knowledge either actual or implied of its existence. We cannot, from the evidence and record before us, say that the verdict was not warranted by the evidence. Action by the House Cold Tire Setter Company against W. A. Ingraham. From a judgment for plaintiff, defendant appeals. Affirmed. Bernard F. Gaffney, for appellant. Charles H. Mitchell, for appellee. RORABACK, J. The plaintiff is a manufacturer of machines for setting tires upon vehicles, at St. Louis, Mo. The defendant is a blacksmith at New Britain, Conn. In May, 1906, the plaintiff sold by a written contract to the defendant one of its machines for $350. Fifty dollars was paid upon the deThe defendant in livery of the machine. the contract agreed to execute aud deliver to the plaintiff three notes of $100 each, payable, respectively, July 1, 1906, September 1, 1906, and December 1, 1906. The defendant did not execute or deliver any of the notes, claiming that the machine did not There is no error. The other Judges con- perform its work. Thereafter, on the 28th curred. day of August, A. D. 1906, the plaintiff commenced an action before James T. Meskill, a justice of the peace at New Britain, Conn., to recover the sum of $100 alleged to be then HOUSE COLD TIRE SETTER CO. v. IN- due under the contract. The case was tried, (83 Conn. 31) GRAHAM. and on November 14, 1907, a judgment for (Supreme Court of Errors of Connecticut. Feb. $100 was rendered in favor of the plaintiff. 3, 1910.) 1. SALES ( 340*) - CONTRACTS - BREACH BY BUYER-REMEDY OF SELLER. This judgment was paid and satisfied. Subsequently, on the 18th day of March, 1908, the plaintiff instituted the present action in Where a buyer who agreed to give notes the court of common pleas against the defor the unpaid price, payable in installments, fendant to recover $200, the balance of the refused to do so, the seller could treat the contract as terminated and sue for damages, or he purchase price, and the defendant pleaded could treat it as in force and sue by independ-in bar the former judgment rendered Novement actions for the installments as they matured, as each default in the payment of the installments was the subject of an independent action. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1111; Dec. Dig. § 596.*] 3. JUDGMENT (§ 739*) - CONCLUSIVENESS CAUSES BARRED. To render a former judgment conclusive on any matter, it must appear that the precise point was in issue and decided, and no matter is barred by a former judgment which could not have been a subject of recovery therein, though it may form a part of the transaction out of which the former action arose. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1267; Dec. Dig. § 739.*] Appeal from Court of Common Pleas, Hartford County; John Coats, Judge. ber 14, 1907. Judgment was rendered for the plaintiff for the full amount of $200, with interest, and from this judgment the defendant appeals to this court, alleging errors in not sustaining the claim of the defendant that the former judgment was a bar to a recovery, and in not holding that the plaintiff had but one cause of action. The trial court did not err in holding that the plaintiff had more than one cause of action. After the breach of the contract by the defendant's refusal to give the notes, the plaintiff had the right to treat the contract as terminated and bring an action for damages. The court has found that the contract ferent dates. Each default in the payment called for the payment of $100 on three difof money falling due upon a contract payable in installments may be the subject of an independent action. Burritt v. Belfy, 47 Conn. 323, 329, 36 Am. Rep. 79; Badger v. Titcomb, 15 Pick. (Mass.) 409, 26 Am. Dec. 611; Lorillard v. Clyde, 122 N. Y. 41, 45, 25 N. E. 292, 19 Am. St. Rep. 470. At and after July 1, 1906, either one of two courses were open to the plaintiff to treat the contract as broken and sue for damages for its breach, or to treat it as still in force, and bring an action for the first installment then due. No rule of law or practice required the plaintiff to pursue the former instead of the latter. It has been found that the second and third installments did not mature until after August 28, 1906, when the plaintiff commenced its first suit. The plaintiff at law must have a cause of action before he comes into court. The second and third installments could not have been made the basis for any lawful claim in the first action upon the contract. They were not due. Goodrich v. Stanton, 71 Conn. 419, 425, 42 Atl. 74. It needs but an inspection and comparison of the records in the two cases to ascertain that the controlling facts in this case were not in issue in the first suit, were not decided by it, and were not necessary to uphold it. No matter can be barred by a former judgment which could not have been a subject of recovery therein, though such matter may form a part of the transaction out of which the former action arose. Lovell, Trustee, v. Hammond Co., 66 Conn. 500, 512, 34 Atl. 511. The judgment of the justice court now invoked as a bar to the present case was an adjudication that on the 1st day of July, 1906, there was $100 due in accordance with the terms of the contract between the parties. In the present action the plaintiff seeks to recover the two installments which have matured since the commencement of the first suit. "In order to constitute a former judgment an estoppel, or in other words to render it conclusive, on any matter, it is necessary that it should appear that the precise point was in issue and decided; and that this should appear from the record itself." Kennedy v. Scovil, 14 Conn. 61, 68; Lord v. Litchfield, 36 Conn. 116, 4 Am. Rep. 41. There is no error. The other Judges concurred. (83 Conn. 55) STATE V. ANDERSON. Ernest L Averill, for appellant. Robert J. Woodruff, Pros. Atty., for the State. HALL, J. This case was before us at a former term, when a new trial was granted for errors in the charge of the court to the jury. State v. Anderson, 72 Atl. 648, 82 Conn. 111. Upon the second trial the accused was found guilty and a fine of $50 and costs, taxed at $108.27, was imposed. The present appeal is upon the ground that the court erred in overruling the demurrer filed after the new trial was granted. The grounds of the demurrer, stated in substance, are: That the information is uncertain; that it states two distinct offenses, namely, keeping a house of prostitution, and keeping a house reputed to be such; and that the statute upon which the information is based, namely, section 1316 of the General Statutes of 1902, amended by chapter 122, Pub. Acts 1907, contravenes the provisions of article 1, §§ 1, 9, and 21, of the Constitution of Connecticut, and the fifth, sixth, and fourteenth amendments of the federal Constitution. We held in our former decision that the information charged but a single offense, namely, that the accused, on the day named, was the keeper of a certain house, which was in fact, and was reputed to be, a house of ill fame; that under this information she could only be lawfully convicted of having kept a house which was in fact a house of prostitution; that we had no occasion to decide whether she could have been lawfully convicted under an information charging her only with having kept a house reputed to be a house of ill fame: and that the information was not open to any of the objections raised by the demurrer. We have no occasion to change our former decision. In so far as the statute under consideration permits a conviction for the offense of keeping a house which is in fact a house of prostitution, which, as we have said, is the only (Supreme Court of Errors of Connecticut. Feb. offense with which this accused is charged, 3, 1910.) DISORDERLY HOUSE (§ 5*)-STATUTORY PROVISIONS--CONSTITUTIONALITY. Gen. St. 1902, § 1316, as amended by Pub. Acts 1907, c. 122, providing that every person who shall keep a house which is, or is reputed to be, a house of ill fame, etc., shall be fined, is not unconstitutional in so far as it permits a conviction for the offense of keeping a house which is in fact a house of prostitution on proof that it is reputed to be such a house. [Ed. Note.-For other cases, see Disorderly House, Dec. Dig. § 5.*] Appeal from Criminal Court of Common Pleas, New Haven County; Earnest C. Simpson, Judge. Tillie Anderson was convicted of keeping a house of ill fame, and appeals. No error. See, also, 82 Conn. 111, 72 Atl. 648; 82 Conn. 392, 73 Atl. 751. it is not unconstitutional. Whether it contravenes the state or federal Constitutions, or both, in permitting a conviction for an offense which we have held is not the offense charged in this information, and of which this accused could not therefore have been convicted in the court below, namely, the keeping of a house merely reputed to be a house of prostitution, we have no occasion at present to decide. But the accused claims that the statute violates the provisions of both the state and federal Constitutions because it permits a conviction of the offense of keeping a house which is in fact a house of prostitution, upon proof that it is reputed to be such > house. It is true that we have held, as was said in our former decision: "Upon proof of such reputation, in the absence of any For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 75 A.-6 other evidence of the true character of the place, the jury may convict the accused of keeping a house or place which is in fact of the character that it is reputed to be. When such evidence of reputation is offered, it must either by itself, or in connection with other evidence, be sufficient to satisfy the jury beyond a reasonable doubt that the reputed character of the place was its true character. When evidence of the reputed character of the place is offered, it may always be met by evidence that such is not the real character of the place, and, however complete may be the proof of reputation, there can be no conviction, if it appears that the house or place is not in fact kept or used for the reputed immoral or unlawful purposes." State v. Anderson, 82 Conn. 114, 72 Atl. 648. The adoption of such a rule of evidence in this state does not render the statute upon which the information is based, nor the method or proceedings by which the accused was convicted, unconstitutional as claimed. It is, however, unnecessary to pursue the discussion of that subject in this case, since it does not appear that that rule was invoked upon the second trial. We have no finding before us showing what evidence was offered, or what rulings were made, or what instructions were given to the jury. It is entirely consistent with the record before us that no evidence whatever of reputation was offered by the state. If no such evidence was offered, the court had no occasion to charge the jury that the state could establish a prima facie case by proof of reputation only, and presumably did not. For aught that appears from the record, the accused was properly convicted upon direct evidence only, and, without the introduction of any evidence of reputation, that she kept a house which was in fact a house of prostitution. Where, in an action for a balance due for butter sold, evidence introduced to show the meaning in the butter trade of the words "net to us" used in the telegram sent by plaintiffs, stating the conditions on which defendants could have the butter, only proved their ordinary meaning as applied to the circumstances in which they were used in that instance, an instruction as to the duties of the jury, should they find that by general usage of trade the words had such meaning, was harmless. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. § 1066.*] 3. SALES (8 355*)—ACTIONS FOR PRICE-EVI DENCE. In an action for a balance due for butter sold, where plaintiff alleged that it was accepted at a certain price, free from all deductions for ed a general denial, evidence of the value of the freight charges, and defendants' answer containbutter was material, since, if plaintiff failed to prove that the butter was to be paid for at the price alleged, it might recover its reasonable value. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1026, 1034; Dec. Dig. § 355.*] 4. DEPOSITIONS (§ 107*) - OBJECTIONS-TIME FOR MAKING-SUBSTANCE OF TESTIMONY. Objections at trial to the reading of depositions that questions asked the witnesses were for asking them had been laid, were properly improper in form, and that no proper foundation overruled, since all objections not going to the substance of testimony should be taken at the time the testimony is given so that informalities can be corrected. [Ed. Note.-For other cases, see Depositions, Cent. Dig. § 318; Dec. Dig. § 107.*] 5. APPEAL AND ERROR (§ 1051*)-HARMLESS ERROR-EVIDENCE-FACTS ESTABLISHED BY CONSTRUCTION. The admission of depositions containing testimony as to the meaning of certain words in. There is no error. The other Judges con- trade, if error, was harmless, where the words curred. (83 Conn. 65) FLORAL CREAMERY CO. v. DILLON & DOUGLASS. (Supreme Court of Errors of Connecticut. Feb. 3, 1910.) 1. SALES (§ 364*) — ACTIONS FOR PRICE-IN STRUCTIONS. In an action for the balance due for a car load of butter shipped by plaintiffs to defendants, plaintiffs alleged that defendants accepted the butter under an offer communicated to them by B. agreeing to pay 17 cents per pound net to the plaintiffs, and by order of court the telegram authorizing B. to let defendants have the butter on these terms was made a part of the complaint. Plaintiffs produced proof that B. submitted the telegram to defendants, and that they accepted the butter on the terms stated in it, while defendants claimed in their evidence that B. agreed to let them have the butter for 17 cents free from all charges for freight. Held, that the court, after charging that, if the butter could have no other meaning under the circumstances than the one given them by the witnesses making the depositions. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4169; Dec. Dig. § 1051.*] 6. SALES (§ 77*)—CONSTRUCTION OF CONTRACT -"NET TO Us." The words "net to us," in a telegram sent by plaintiffs offering to sell butter to defendants for 17 cents per pound "net to us," meant that the price was to be 17 cents free from all charges and deductions. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 210, 211; Dec. Dig. 77.*] 7. DEPOSITIONS (§ 56*)-NOTICE-SUFFICIENCY. Where 11 days' notice of taking of depositions in Kansas was given, and it was not claimed that this did not give time to reach the place where they were taken or to arrange by mail to be represented by local attorneys, the court did not abuse its discretion in overruling objection to the reading of the depositions on the ground that the notice was insufficient. [Ed. Note. For other cases, see Depositions, Cent. Dig. §§ 99-101; Dec. Dig. § 56*] |