Norwich bulletin., 1914-01-22
SUPREME COURT OPINIONS
 IN COUNTY CASES
Superior Court Clerk Parsons Re- ceives the Text of Judges Decisions.

The text of the supreme court judges opinions in the three New London county cases in which opinions were handed down this week has been re- ceived by Clerk George E. Parsons of the superior court.
 Two of the cases were railroad cases each involving an $S,500 verdict against the road, from which they ap- pealed and the other was over an ob- structed right of way at Old Indian pond in East Lyme
 New Trial Ordered.
 In finding that there is error and ordering new trial in Mrs. Agnes Whitney of New London vs. N. Y, N. H & H. R. R. Judge Roraback con- cludes his opinion as follows
 It is a general rule that the rail- road company owes no duty to a per- son who is unlawfully upon it's prem ises, when he is not seen until it is too late to avoid injury. There is nothing to show that the engineer of the passenger train could have stop ped the locomotive after he discovered that the plaintiff was in a perilous po- sition. From Mrs. Whitney's own statement it is apparent that the ap- preaching train must have been with in short distance of her when with out looking she. stepped in front of the locomotive from behind the post where SI0 WdS SldilulIS lO ALLOW lne freight train to pass. Upon the evidence Mrs. Whitney was not even a licensee and therefore had no case. It is true that questions of negligence and contrib utory negligence are ordinarily ques- tions of fact for the jury, yet when the undiSputed evidence is SO conclu- sive as to one of the contrilling issues in a case the question is one of law and not of facts for the jury. As the verdict was unsupported by proof of the defendants negligence it should have been set aside. There is error and a new trial is ordered.
 On Contrbutory Negligence.
 Judge Prentice wrote the opinion on the appeal in the case of William don Northern R. R. Co and others. Vickery was given a verdict of $S 300 in the superior court. The judge finds no error and says in part upon the point of contributory negligence:
 The court correctly charged that the burden of proof in the matter of the assumption of risk was upon the de- fendant. When the risk to which the servant is exposed is one that arises from the negligent conduct of the master having imported into the sit uation factor of peril not ordinarily incident to the business in which the servant is engaged, it is in legal ter minology an extraordinary one In such cases it is not incumbent upon the plaintiff to either allege or prove want of knowledge and non-assump- tion The risk here complained of arose as alleged and claimed from the negligent erection of a switch-stand in dangerous proximity to one of the tracks in the railroad yard and the negligent failure to have a warning
 light upon it. This was not a risk ordinarily incident to the railroad ser N-inea in IyFi iaI7 h0 rola mi man was employed, but one arising from the defendants negligence. The plaintiff may have known of it, and have voluntarily assumed it, but he did not do so by entering into his em- ployment If such was the fact. it plead and prove it. Its pleadings were framed upon that theory and correctly SO
 Injunction Not Warranted. Error in part was found by Judge ! Thayer in the case of Ida K. Billings executriX and others Vs Kenneth M Mckenzie in which in the superiir 1 court a judgment for the plaintiff was given with nominal damages and the i issue of a mandatory injunction to remove from the right of way the we'll pump and pumphouse located thereon Jndge Thayer gives it as his opinion in concluding a review of the case that the court properly refused to set aside the verdict It is claimed that the judgment file does .nottset-out the facts upon which this judgment for an in- junction is founded and that the judg- ment for an injunction is not sup ported by the facts proved in the case We think that the judgment is open | to this objection. The general finding of the jury contained in the judgment l file was not a sufficient finding of facts to warrant the sweeping injunction ! ,s1.l, T mandatory injunction requiring the re- moval of the we'll The mere fact that the plaintiffs representing the estate have a right of way over the strir and that the defendant has obstructe6 l it and this is all that the jury have 1 found-is not enough to warrant the 1 injunction granted.
 The judgment is erroneous in par | and so far as it grants equitable relie1 | is reversed and set aside. As to the
 residue of the judgment. it is affirmed l The case is remanded 10 the superior 1 court to be proceeded with according l f1 Irxr-