thorities pursuant to Gen. St. 1902, § 3833, and hence it does not prevent shortening of such period by the city in case of an extension, which, in the order of approval, was required in the public interest to be completed during the current season. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 462.*] 6. STREET RAILROADS ($ 49*)-EXTENSION OF LINES OBLIGATION OF LESSEE. A lessee succeeding to the rights and franchises of a street railroad company takes the same burdened with the obligation of its lessor to complete the construction of an extension begun by it, and put the same in operation. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 126; Dec. Dig. & 49.*] 7. STREET RAILROADS (§ 66*)—EXTENSION OF LINES-PARTIAL ABANDONMENT. If the entire authorized extension of a street raliway has been completed and put in operation, no part of it can afterwards be abandoned at the will of the company. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 145; Dec. Dig. § 66.*] 8. MANDAMUS (§ 187*)—ALTERNATIVE WRITMOTION TO QUASH-REVIEW OF DETERMINATION. Where the superior court has found all the issues for defendant, and adjudged an alternative writ of mandamus insufficient, if any of the grounds assigned for quashing it were valid, there is no error. [Ed. Note. For other cases, see Mandamus, Cent. Dig. § 436; Dec. Dig. § 187.*] 9. STREET RAILROADS (§ 49*)-EXTENSION OF LINES-OBLIGATIONS OF LESSEE. The fact that the lessee of a street rail road company was not a party to proceedings for proposed alterations and extensions was no objection to mandamus to require completion of an extension begun by the lessor, as the lessee thereafter succeeded to the rights, franchises, and obligations of the lessor. [Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 49.*] 10. STREET RAILROADS (§ 49*)-EXTENSION OF LINES-OBLIGATIONS OF LESSEE. That a street railroad has not completed an extension by the time required by a city in the order approving of its plans therefor is no excuse for not subsequently doing so, and its lessee stands in its shoes in this respect. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 12; Dec. Dig. § 49.*] 11. MANDAMUS (§ 162*)--ALTERNATIVE WRIT MOTION TO QUASH-SUPPORTING BY ALLEGATIONS OF FACT. A motion to quash an alternative writ serves the purpose of a general demurrer, and cannot be supported by allegations of fact. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 340; Dec. Dig. § 162.*] 12. MANDAMUS (§ 160*)-ALTERNATIVE WRITMOTION TO QUASH-SUFFICIENCY OF WRIT— ALLEGATION AS TO REQUEST OR DEMAND. A direct allegation in an alternative writ of mandamus of a refusal to complete the extension of a street railroad is sufficient as against a motion to quash on the ground that the writ shows no request or demand of respondent. [Ed. Note. For other cases, see Mandamus, Dec. Dig. & 160.*] 13. MANDAMUS (§ 146*) STATE AS PARTY PLAINTIFF. plaintiff, is seeking to enforce its laws, and is not open to the objection that the state and not the city named control the use by the public of the defendant's railway and the interest of the public in its operation. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 287; Dec. Dig. § 146.*] 14. STREET RAILROADS (§ 462*) - EXTENSION OF LINES-MANDAMUS TO COMPEL-EFFECT OF AMENDMENT OF CHARTER. The amendment to the charter of the Connecticut Railway & Lighting Company in 1905 (14 Sp. Laws, p. 704), though validating and confirming the location and construction of the railway, as formerly located and constructed, did not prevent the state in mandamus on relation of a city from complaining that a part of a certain route had not been finished, as this assumed that what was done was lawful as far as it went, and simply insisted that a franchise ecuted shall be wholly executed. to lay a railway on a certain route in part ex [Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 462.*] 16. MANDAMUS (§ 146*) PROCEEDINGS AGAINST STREET RAILROAD COMPANY-WRIT IN NAME OF CITY OR STATE. Gen. St. 1902, § 3824 (Pub. Acts 1907, p. 806, c. 219), provides that the mayor and cominstance exclusive control over the placing of mon council of each city shall have in the first street railroad tracks, and of changes in grade of a railway, and, if any company shall fail to obey their orders in these respects, "may proceed by mandamus to compel such company, at its own expense, to carry out such orders." Held, that the procedure in such case may be in the name of the city, but that there was no reason why it may not be in the name of the state on relation of the city, or in the name of the state alone. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 287; Dec. Dig. § 146.*] 17. MANDAMUS (§ 131*)-SUBJECTS OF RELIEF -CONSTRUCTION AND OPERATION OF STREET RAILROADS OBLIGATION IMPOSED BY LAW. The state can always proceed by mandamus to enforce a legal duty created by the authority to which it has intrusted power to create it, and, when it invests a city with power to make orders with respect to the construction or operation of such orders may be directed with the duty of a street railroad, it charges those against whom obeying them, and their duty is therefore one of law. [Ed. Note. For other cases, see Mandamus, Dec. Dig. § 131.*] Appeal from Superior Court, New Haven County; William L. Bennett, Judge. Motion by the state's attorney before the superior court for New Haven county, made on the relation of the city of Waterbury, for a writ of mandamus against the New York, New Haven & Hartford Railroad Company. An alternative writ was quashed on defendant's motion, and the relator appeals. Re An alternative writ of mandamus which is entitled, "State of Connecticut, ex rel.," a certain city against a specified railroad company, is a proceeding in which the state, as the party versed. ary, 1908, to extend its tracks through Cha- The writ stated this case: In 1904 the throughout the whole length of the line as Connecticut Railway & Lighting Company described in this extension. (6) That all presented a petition to the mayor and board work to be performed under these conditions of aldermen of the city of Waterbury for shall be done and completed by said comthe approval of its plan for the location of pany on or before the 15th day of Novem certain proposed alterations and extensions of ber, 1904, and said company shall have said its electric railway within said city, describ-extension in operation and open to the use ed as follows: "Extension from East Main of the public on or before said date. No apStreet to the Pearl Lake Road. Commencing peal was taken by the company, but it thereat a point in the center of the East Main upon proceeded to construct its tracks on a street track at the junction of East Main portion of the highways named in its petistreet and Cole streets; thence through Cole tion, and to operate its cars thereon. It has street to Franklin street to Union street; ever refused and neglected to complete the thence through Union street to Baldwin work by extending its tracks through Chapel street; thence through Baldwin street to street to the Pearl Lake Road. The defendBaldwin Hill or Piedmont street; thence ant in 1907 succeeded, as its lessee, to its through Chapel street to the Pearl Lake rights, franchises, and obligations with reRoad." It was duly referred to the board of spect to its electric railway system; but has, public works, which, after a public hearing, in like manner, ever neglected and refused reported its recommendation that the approv- to complete the work by making and operatal desired should be granted upon certain ing such extension. The writ commanded conditions; and thereupon it was so granted the defendant before the 1st day of Februby the board of aldermen with the approval of the mayor in March, 1904. These conditions were as follows: (1) That the location of the tracks from Cole street through Franklin street to Union street adjoin the West line of Union Square, so called. (2) That said company shall repair and strengthen the bridge over Mad river, known as Scovill's bridge, so that it shall be safe under the changed conditions, and shall thereafter bear a reasonable proportion of the cost of keeping and maintaining said bridge in safe condition, and also, whenever in the opinion of the board of aldermen public necessity and convenience require the reconstruction or widening of said bridge or the removal of said bridge and the construction of a new, wider, and stronger bridge, of such dimensions and materials as said board shall determine, the said Connecticut Railway & Lighting Company shall pay to the city of Waterbury a reasonable proportion of the total cost of such changes in said bridge, or of such new bridge, and shall thereafter bear a reasonable proportion of the cost of maintaining such new or reconstructed bridge in safe condition. (3) That all new or additional poles to be erected and used for the support of the wires for the operation of the cars of said company along said road shall be of wood, of neat design, and subject to the approval of the board of commissioners of public works. (4) From Baldwin Hill street to the terminus of the said railroad said company shall widen the highway upon which its tracks are to be laid to the full width as laid out by the town of Waterbury, bringing all of said highway to the now existing grade, and leaving its surface, for its full width, in good condition for public travel, it being understood that in the execution of such work said railroad company shall not be held liable for land damages to the adjoining proprietors. (5) That said company shall lay and maintain a cobble pavement be South Main street terminus of the present tramway along the Waterbury Road, so called, to Grove Cemetery in the town of Naugatuck, Platt's Mill Road, Pearl Lake Road, Chapel street, Baldwin Hill street, Baldwin street, Mill street, Union street, Franklin street, Cole street." 11 Sp. Laws, p. 724, § 1; 13 Sp. Laws, p. 754, § 4; 15 Sp. Laws, p. 573, § 2. The time for constructing a railway on this route has been extended from time to time, and now runs to July 1, 1909. Gen. St. 1902, § 3835; 12 Sp. Laws, p. 1016; 14 Sp. Laws, pp. 120, 704; 15 Sp. Laws, p. 574, § 3. John P. Kellogg, for appellant. Benjamin I. Spock, for appellee. BALDWIN, C. J. (after stating the facts as above). The Connecticut Railway & Lighting Company, the predecessor in title of the defendant, having a franchise from the state for the construction and operation of a railway in certain streets in the city ties a plan for exercising this franchise with the statute required such plans to specify. respect to some of these streets pursuant to Gen. St. 1902, § 3823. This provided that, before any such company shall proceed to construct a railway or lay new tracks, it shall "cause a plan to be made showing the highway or highways in or through which it proposes to lay its tracks, the location of the same as to grade and the center line of said highways, and such changes, if any, as are proposed to be made in any highway," and that "said plan shall be presented to the mayor and court of common council of each city within which such company proposes to operate its railway, who shall, thereupon, after public notice, proceed to a hearing of all parties interested therein, and after such hearing may accept and adopt such plan, or make such modifications therein as to them shall seem proper, and shall, within sixty days after the presentation of such plan, notify such company in writing of their decision thereon and of such modifications therein as they have made," and that "no such company shall construct such railway or lay additional tracks, except in accordance with a plan approved by the authorities aforesaid, or approved on appeal, by the railroad commissioners or the superior court, as provided in §§ 3832, 3833, and 3834." The plan presented was an entirety. It was denominated a plan for an "Extension from East Main Street to the Pearl Lake Road." The proposed location started in East Main street, and was to end at the Pearl Lake Road, reaching the latter by way of Chapel street. The approval of the plan was an approval of it in its entirety. Such an approval, either by the city authorities or given upon an appeal from their action, was a condition precedent to the location of such an extension. Central Railway & Electric Company's Appeal, 67 Conn. 197, 210, 35 Atl. 32. The right to make a location of a railway or of any part of it is a power of election, and, when once exercised, is exhausted, in the absence of a statute to the contrary. Hartford & Conn. Western R. R. Co. v. Wagner, 73 Conn. 506, 509, 48 Atl. 218. The location by the Connecticut Railway & Lighting Company of its extension from East Main street to the Pearl Lake Road has been made. It has been made and approved as a whole. The company did not thereby come under an obligation to enter upon the construction of the piece of road thus located. But it did come under an obligation, if it should enter upon the construction of that piece, not to stop when it had constructed part of it, and proceed to operate cars upon that part, without going forward further, within a reasonable time, to complete the extension. The city authorities had power to modify the plan submitted as a condition of their approval in any way legitimately affecting one or more of the particulars, which One of these particulars was the grade proposed for the tracks. Another was the change, if any, to be made in any highway. The city authorities were of opinion that changes were proposed in the plan with respect to that part of the route running from Baldwin Hill to the terminus of the extension, which required modification. Their approval was therefore conditioned on the company's bringing the street, in that part of the extension throughout its full width to a specified grade, and putting it, both within and outside of the railway tracks, in good condition for public travel. Another condition required this and certain other work to be completed, and the whole extension to be put in operation by November 15, 1904. These conditions were strictly modal. They related to the manner of proceedThe first guarded the public against irregular grades and too narrow a roadway. The second guarded the public against unnecessary delays in the performance of the work, and insured their receiving the full benefit of the entire extension, if any part of it were constructed and used. Both were germane to the plan of location. Central Railway & Electric Company's Appeal, 67 Conn. 197, 214, 35 Atl. 32, 219; Waterbury's Appeal, 78 Conn. 222, 225, 61 Atl. 547. ing. It is argued that, since the state had given the company a right to locate its railway in the streets in question within a period which would not have elapsed on November 15, 1904, this time could not be shortened by the city. This right of location, however, was given subject to the approval and control in certain particulars of the city authorities. It was a qualified, not an absolute, right. The company could not begin the laying of a track by digging up the pavement in a busy thoroughfare, and leave things in such a shape for months or years. It must act reasonably in the exercise of its franchise, and the General Assembly left it with the municipal authorities in the first instance to see that it should so act. The order of approval now in question was, in effect, a declaration by proper agents of the law that the public interest required that the particular extension contemplated should, if undertaken, be carried to completion during the current season. It follows that the specific ground on which the memorandum of decision indicates that the writ was quashed was insufficient. Part of the extension approved having been constructed and put in operation by the Connecticut Railway & Lighting Company, it came under an obligation, so far as appears from the writ, to build the rest of it, and put that in operation, conforming, as respects so much of the route as runs from Baldwin Hill street to the terminus at Pearl Lake Road, to the condition imposed by the city in that regard. If the entire extension had been so com pleted and put in operation, it is certain that no part of it could have been subsequently abandoned at the will of the company. State v. Hartford & New Haven R. R. Co., 29 Conn. 538, 547. The reasons for this apply conversely. The benefits and the burdens coming from the conditional approval of the location go together. It was not within the company's power to accept and take advantage of what it deemed bene ficial, and yet escape the burdens incident to a full completion of the extension in the manner authorized. It appears from the judgment file that the superior court found all the issues for the defendant, and adjudged the writ insufficient. If, therefore, any of the grounds assigned for quashing it were valid, there was no error. The first ground was that the defendant was no party to the proceedings had in 1904. This is immaterial, since its succession to the rights, franchises, and obligations of the Connecticut Railway & Lighting Company came at a later date. The third, fourth, and fifth grounds were that the condition requiring the completion of the extension by November 15, 1904, merely limited the time within which the Connecticut Railway & Lighting Company could have constructed it, and that, this time having expired, the defendant had no right to complete the construction, and could not be commanded to complete it. The Connecticut Railway & Lighting Company could not have set up as against the state that it had not completed the extension by November 15, 1904, as an excuse for not subsequently proceeding to complete it. No one can profit by his own wrong. The writ alleges that all its rights, duties, and obligations passed to the defendant in 1907. The latter stands, therefore, as to this matter in the shoes of its lessor. The sixth ground is that "no request or demand has ever been made of the respondent to complete the construction of said line." A motion to quash serves the purpose of a general demurrer, and cannot be supported by allegations of fact. But if the averment is to be construed as importing that the writ shows no request or demand, a sufficient answer is that it directly alleges a refusal to complete the work, which is enough, so far as a motion to quash is concerned. Brainard v. Staub, 61 Conn. 570, 575, 24 Atl. 1040. The seventh ground is that the laws of the state, and not the mayor and aldermen of Waterbury, control the use by the public of the defendant's street railway and the interest of the public in its operation. This claim has been already discussed in connection with the second of the grounds set up in the motion; but it may be added that the writ is entitled the "State of Connecticut ex rel. The City of Waterbury v. The New York, New Haven & Hartford Railroad Company," and is a proceeding in which the state as the The eighth ground assigned is that the General Assembly in 1905 validated and confirmed the location and construction of the railway, as located and constructed in the highways described in the original petition to the city authorities "through Baldwin street to its intersection with Chapel-street at Baldwin Hill or Piedmont street." In an amendment of its charter in the year named (14 Sp. Laws, p. 704), it is provided that "the location and construction of all tracks, switches, crossovers, fixtures, poles, wires, and appurtenances heretofore located and constructed by said company, or any of its underlying or constituent companies, now controlled and operated by said company, are hereby validated and confirmed, as at present existing, for the use, benefit, and enjoyment of said company; and it is also authorized to carry persons, goods, and property over any or all of its lines of railway, any charter provision to the contrary notwithstanding." The state in this action is not challenging the right of the defendant as lessee of the Connecticut Railway & Lighting Company to hold, maintain, and operate so much of the railway route from East Main street to Pearl Lake Road as was located and constructed in 1905. Its complaint is that, whereas part of that route has been constructed and is being operated, that part running through Chapel street to the Pearl Lake Road has not been. This assumes that what has been done is lawful so far as it goes, and simply insists that a franchise to lay a railway on a certain route which has been in part executed shall be wholly executed. The ninth ground is laches. The defendant did not acquire title until a day not specified in 1907. The application for the writ of mandamus was made January 17, 1908. There is clearly no laches apparent as respects the defendant, unless it can rely on a delay to proceed against its predecessor in title. But if so, and if laches is ever available in defense to such an action by the state, a delay of three years in bringing before the courts a controversy of this nature called for no explanation in the first instance on the face of the writ. It follows that the motion to quash was wholly without merit. In the argument in this court the defendant has set up a claim, not made in the motion to quash, that mandamus does not lie to compel the performance by a private corporation of any particular act unless it be a corporate act specially commanded by law. As this objection strikes at the foundation of the action, we think it proper to consider it. Gen. St. 1902, § 3824 (see Pub. Acts 1907, p. 806, c. 219), provides that the mayor and common council of each city shall have in the first instance exclusive control over the placing of street railway tracks in the city streets, and of changes in grade of such railway, and, if any railway company shall fail to obey COMPETENCY by a writ of mandamus to compel such com- | 3. WITNESSES (8 414*) KNOWLEDGE-EVIDENCE TO SHOW. There is error. The judgment is reversed, and the cause remanded to be proceeded with according to law. The other Judges concurred. (75 N. H. 168) KELLAND v. JOS. W. NOONE'S SONS CO. (Supreme Court of New Hampshire. Hillsborough. Jan. 5, 1909.) 1. MASTER AND SERVANT (§ 153*)-INJURIES TO EMPLOYÉ WARNINGS-DUTY OF MASTER. An employé who had never before worked in a mill or on machinery was set at work on a sizing machine four or five days after his employment began; his work being to put the cloth into the machine. He was told not to go behind the machine when it was running, but the man who worked with him habitually went there when the cloth was not running evenly about the rolls. About two weeks later he was told by his employers to go behind the machine while it was running, and smooth out the wrinkles in some cloth which had become bunched up. It was so dark behind the machine that he could not see the floor, and, when he stepped in, he slipped and fell, and, there being no guard roll on the machine, his hand came in contact with the rolls, and was crushed. The floor back of the machine was uneven and slippery. The employé did not know the condition of the floor or appreciate the danger, while his employers did. Held, that the employers were negligent in failing to notify him of the condition of the floor. Cent. Dig. 1287; Dec. Dig. § 414.*] 4. TRIAL (8 48*)-RECEPTION OF EVIDENCE- Where evidence introduced by plaintiff is relevant to one of several issues in the case, the fact that such evidence produced the verdict is not alone cause for reversal, unless it is shown that an improper use was made of the evidence by plaintiff, and that the verdict resulted from such improper use. 串 [Ed. Note.-For other cases, see Trial, Cent. Dig. § 120; Dec. Dig. § 48; Evidence, Cent. Dig. § 425.] Transferred from Superior Court, Hillsborough County; Peaslee, Judge. Action by William J. Kelland against the Jos. W. Noone's Sons Company for personal | injuries while in defendants' employ. From the denial of defendants' motion for direction of a verdict in their favor and from adverse rulings as to admission of evidence, defendExceptions overants bring exceptions. ruled. When the plaintiff began work for the defendants on February 10, 1904, he had nev er been in a mill or worked around machinery. After working four or five days in the fulling room, he was set at work on the sizing machine, which consists of an iron frame in which are two iron rolls five feet long and fourteen inches in diameter. The plaintiff's work was to put the cloth about to be sized into the machine. He was told not to go behind the machine when it was running, but the man who worked with him habitually went there whenever the cloth was not running evenly through the rolls. A part of the cloth with which the lower roll was covered came off on March 1st. While the defendants were replacing it, the cloth used for [Ed. Note.-For other cases, see Master and the purpose wrinkled or bunched up. InServant, Cent. Dig. § 315; Dec. Dig. § 153.*] stead of stopping the machine and smoothing 2. MASTER AND SERVANT (§ 230*)-INJURIES out the wrinkles, they told the plaintiff to TO EMPLOYÉ CONTRIBUTORY NEGLIGENCE. go behind the machine and do it. He startThough an inexperienced servant knew that, if he went back of a sizing machine in obedied to do as he was told, but it was so dark ence to a command, there was danger of his behind the machine that he could not see hand being crushed between the rolls of the the floor, and, when he stepped in, he slipmachine, he was not guilty of contributory neg-ped and fell. His hand came in contact with ligence precluding recovery for an injury to his hand caused by his slipping on the floor, and the rolls, was drawn between them, and was his hand coming in contact with one of the crushed. The floor back of the machine was rolls, where he did not know of the condition uneven and slippery. The defendants exof the floor, and he had seen a fellow employé cepted to the denial of a motion for the digo in there frequently without injury. rection of a verdict in their favor, and also [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 694-696; Dec. Dig. to the admission of evidence tending to show 230.*] the condition of the floor when it was remov |