[Sac. No. 903. Department One.-February 20, 1902.]

E. E. BURCE, Appellant, v. J. S. JACK, Auditor of Calaveras County, Respondent.

JUSTICE OF THE PEACE-FEES IN COUNTIES OF THIRTY-FIRST CLASSCOUNTY GOVERNMENT ACT-CALAVERAS COUNTY.-Calaveras County, which was a county of the thirty-eighth class under the County Government Act of 1893, became a county of the thirty-first class under the County Government Act of 1897, which provided for such fees of justices of the peace as were then or might thereafter be provided by law; and fees accruing to justices of the peace in Calaveras County in criminal cases, under the act of 1897, are not regulated by the act of 1893, but by the existing general fee law of 1895.

APPEAL from a judgment of the Superior Court of Calaveras County. C. V. Gottschalk, Judge.

The facts are stated in the opinion.

F. J. Solinsky, for Appellant.

A. I. McSorley, for Respondent.

GRAY, C.-This appeal is from a judgment denying the petition of E. E. Burce for a writ of mandate to compel respondent, as auditor of Calaveras County, to audit and allow the petitioner's claim for compensation as a justice of the peace of said county.

The judgment is on a demurrer to the petition, and there is no dispute as to the facts. The petitioner presented his claim for services rendered in 1899 as justice of the peace, and it was allowed by the board of supervisors for seven dollars in each of four criminal cases, or an aggregate of twentyeight dollars. This is the amount that he would be entitled to under the County Government Act of 1893, treating Calaveras County as a county of the thirty-eighth class, as provided by that act. (Stats, 1893, pp. 491-492.)

By the County Government Act of 1897, the population of Calaveras County is declared to be 14,175. (Stats. 1897, p. 454.) The same act places counties having a population of 14,000, and less than 14,400, in the thirty-first class. (Stats. 1897, p. 494.) Thus, by the statutes of 1897, Calaveras County is placed in the thirty-first class. The same act pro

vides that justices of the peace in the thirty-first class of counties shall receive "such fees as are now or which may be hereafter allowed by law." (Stats. 1897, p. 547.) It is plain that, the fees in question having accrued after the act of 1897 went into effect, they are the fees for counties of the thirtyfirst class, and can in no event be the fees prescribed for counties of the thirty-eighth class. If, then, the fees are to be measured by the County Government Act of 1893, it is clear that they must be the fees prescribed by that act for counties of the thirty-first class, to which Calaveras belongs, under the act of 1897. Under this construction, the fees would be but two dollars in each criminal case, or eight dollars in the aggregate. (Stats. 1893, pp. 472-473.) If the act of 1893 is not the "law" meant in the act of 1897, when it says "such fees as are now or which may be hereafter allowed by law," then it necessarily follows that the general act of 1895, intended to establish a uniform fee bill for counties of all classes, is the law governing the fee to be charged; and in this event the fee would be three dollars for all services in each criminal case. (Stats. 1895, p. 272.) As to the act last referred to, it has been held by this court that as to some of its features it is unconstitutional and void, but that, eliminating the unconstitutional parts, it still remains as a full and complete fee bill, and establishes what fees may be charged and collected by justices of the peace and by all county and township officers, at least whenever the compensation of such officer is not provided for as to each item of service by some County Government Act containing a classification of counties, and in conflict with said general act. (Dwyer v. Parker, 115 Cal. 544; Kiernan v. Swan, 131 Cal. 410.) As the act of 1897 referred to does not fix the fees by items, but by reference to the law then in force, it would seem, under the rule laid down in the cases cited, that the fees should be allowed in the amount provided in the act of 1895, or for three dollars in each criminal case. In no event can it be reasonably said that the fees should be fixed as prescribed in the act of 1893 for counties of the thirty-eighth class.

The judgment should be affirmed.

Haynes, C., and Smith, C., concurred.

For the reasons given in the foregoing opinion the judg ment is affirmed. Harrison, J., Garoutte, J., Van Dyke, J.

[S. F. No. 2846. Department One.-February 21, 1902.] LULU O'CONNOR, by her Guardian ad Litem, Respondent, v. GOLDEN GATE WOOLEN MANUFACTURING COMPANY, Appellant.

NEGLIGENCE-FAILURE OF FOREMAN TO WARN MINOR OF DANGEROUS WORK-STARTING OF MACHINE RY FELLOW-SERVANT-PROXIMATE CAUSE OF INJURY.-Where a young girl employed in a woolen factory, to whom the foreman assigned the duty of sweeping in the front and rear of a machine, which was sometimes in motion when the sweeping was done, without warning her of danger from cogwheels, the nature and danger of which she did not understand, the act of a fellow-servant, in starting the machinery in motion, without fault, while the young girl was sweeping behind it, cannot be considered the proximate cause of the injury arising from the catching of her dress in the cog-wheels.

ID.-DUTY OF MASTER TO WARN YOUNG AND INEXPERIENCED SERVANT.Where the master employs a servant to do dangerous work, or to work in a dangerous place, who, from youth, inexperience, ignorance, or want of general capacity, may fail to appreciate the danger, it is a breach of duty for the master to expose such a servant, even with his own consent, to such danger, without first giving him such instructions or cautions as will enable him to comprehend them and do the work safely, with proper care on the servants' part. ID.-NEGLIGENCE OF CHILD A QUESTION OF FACT FOR JURY.-The negli gence of a minor child must, in the nature of the case, be a question of fact for the jury, rather than of law for the court; and it is their province to determine whether or not the child duly exercised such judgment as he possessed, taking into consideration his years, experience, and ability. The ordinary care which a child of limited judgment and experience is called upon to exercise in a given act is not the same quantum of care which an adult would be called upon to use under the same circumstances.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John Hunt, Judge.

The facts are stated in the opinion.

J. E. Foulds, and Frank Shay, for Appellant.

Sullivan & Sullivan, for Respondent.

CHIPMAN, C.-Action for personal injury received by plaintiff in the course of her employment by defendant. The

cause was tried before a jury and plaintiff had the verdict, with damages assessed at three hundred dollars. Judgment was accordingly entered, from which and from the order denying motion for a new trial defendant appeals.

At the time of the injury plaintiff was fifteen years and ten months old and in short dresses; she had attended the common schools, and, as testified by her mother, "was as bright and intelligent as other girls of her age; she was neither dull nor stupid." She was employed in defendant's woolen goods factory from August 1, 1899, until September 6, 1899, when she received the injury complained of. Her work was at and about a machine known as a "mule," operated for the purpose of spinning wool, her service being under the direction of one Tilley, foreman for defendant. It was alleged in the complaint that attached to the rear of this machine were certain cog-wheels of a dangerous character, which were uncovered and wholly unprotected by guards or otherwise, and by which said machine was run; plaintiff was required every afternoon by said foreman to sweep the floor of said factory immediately to the rear of the machine and next to said cogwheels; that this work of sweeping was known by defendant to be hazardous, and that plaintiff had not sufficient or any experience or knowledge to perform said work, and was ignorant of the dangers attending the same, and that defendant carelessly and negligently failed to instruct or warn plaintiff of the dangers or hazards in sweeping said portion of said factory; that on September 6, 1899, in obedience to the direction of said foreman, plaintiff undertook to sweep said floor at the rear of said mule and in and about the vicinity of said cog-wheels, and that by reason of the "fault, wrong, and negligence of said defendant, and of said assistant foreman in the premises, as aforesaid, and without any fault or negligence on the part of plaintiff, the dress of plaintiff was caught by said cog-wheels and the left thigh of plaintiff was drawn and caught by said cog-wheels, and was crushed," causing plaintiff great injury and pain, etc. Defendant in its answer denied the alleged dangerous character of said machinery or said cog-wheels; admitted that the cog-wheels were uncovered, as was customary in such cases, and alleged that no guard was necessary around them; denied that the work of weeping around the machinery was hazardous or

dangerous; alleged that plaintiff "had full experience and knowledge and had been fully instructed how to safely perform said work; . . . that whatever dangers there were, were fully open to her observation, and could have been easily avoided by her by the exercise of ordinary care"; denied that it failed to instruct plaintiff concerning said work, and averred that by its said foreman it "fully and minutely instructed plaintiff in the premises, warned her against all probable or possible dangers, and advised her how to avoid them"; alleged that it was part of plaintiff's duty to sweep around and about said mule daily; that at all times while in defendant's employment plaintiff "was cautioned by defendant's foreman as assistant not to go behind said mule, either to sweep said floor or for any purpose whatever, until she had first stopped the motion of the machine; . . . that said cogwheels were in plain sight, and that the danger to be apprehended from them while in motion was apparent to plaintiff"; that previous to the day of the injury "it was her custom, pursuant to the instructions given to her as aforesaid, to stop the motion of said machine before she went behind it or in the vicinity of said cog-wheels; that on said day she carelessly and negligently failed to stop the motion of said machine while sweeping said floor in the rear thereof; . . . that whatever injuries she received were the result wholly of her own negligence and were not due to any act or omission, negligent or otherwise, of defendant, its agents or servants."

..

This so-called mule was a machine about fifty feet long, and was one of several operated in the same room; they were placed on each side of the room, facing each other, with the rear end of each to the wall, and were operated from the front; the machine moved back and forward on a track by means of cog-wheels connected with a pulley, which was belted to a shaft above, driven by steam power; a lever worked by the operator shifted the belt so as to give an in-and-out movement of the machine on the track. Each machine had ten or eleven spools, with forty-eight threads to each spool, or about five hundred threads in all. The cog-wheels and pulley were in a compact mass at the rear. Plaintiff's duty was to change the bobbins and splice the threads when they happened to break, and to sweep around the machine. Her post of duty when operating the mule was in front, and it is not