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For Appellant-Myrick & Deering; Jas. Walter Scott, F. P. Tuttle.
For Respondents-R. C. Gortner, John A. Wall.

This was an action in which the plaintiffs, who are husband and wife, obtained a judgment against the defendant, Yosemite Transportation Company, for $3,500 for injury to the wife suffered in an accident by which one of the defendant's stages went off the grade between Camp Curry and El Portal in the Merced Canyon in Yosemite Valley on the 10th day of July, 1910. As will be indicated by the length of time since the accident the case has a history. This and a companion case by Wright against the company for the injuries to his wife were tried originally before a jury in the superior court of Mariposa county, Judge Trabucco presiding, and resulted in a judg. ment in favor of the company in the case we are now discussing. The plaintiffs moved for a new trial on various grounds, and the trial judge granted the motions, whereupon an appeal was taken from the order, and the matter was decided in the district court of appeal for the third district in the case entitled as above, and reported in 28 Cal. App. Dec. 279. It was contended on that appeal by the Wrights that the trial court was warranted in granting the new trial upon the ground that from the evidence the jury should have found a verdict in their favor. Necessarily this involved passing upon the question of whether the evidence was sufficient to warrant such a verdict; and in that case Mr. Justice Hart, in an elaborate opinion, held that the trial court was justified in granting the new trial upon that ground, and therefore sustained the order appealed from. The case was returned to the superior court of Mariposa county for a second trial, and was tried before Judge Trabucco sitting without a jury, and the judgment from which this appeal is taken was in due course given by him.

We have examined the evidence upon the second trial with care. While stated in different language from that of the opinion of Mr. Justice Hart, above referred to, the evidence at the second trial does not in effect differ from the evidence as recited by him, and we are not disposed to quarrel with the conclusion which he reached. The only point insisted upon here is that the findings of negligence on the part of the stage company are not supported by the evidence. [1] "A carrier of persons for reward must use the utmost care and diligence for their safe carriage." (Civ. Code, sec, 2100.) [2] The burden of proving itself free from negligence rested upon the defendant in this case after plaintiffs had introduced their evidence showing the circumstances surrounding Mrs. Wright's injury; and even if we were disposed to question the conclusion reached by the appellate court for the third district on that point, we are still not convinced that the defendant established its freedom from negligence by a preponderance of the evidence. The judgment is affirmed.

BEASLY, J. pro tem.
We concur:

LENNON, P. J.
STURTEVANT, J. pro tem.

Civil No. 2517. First Appellate District. September 25, 1918. W. H. WRIGHT, Plaintiff and Respondent, V. YOSEMITE TRANSPORTA

TION COMPANY, Defendant and Appellant.
Appeal from the Superior Court of Mariposa County-J. J. Trabucco,
Judge.

For Appellant- Myrick & Deering; James Walter Scott, F. P. Tuttle.
For Respondent-R. C. Gortner, John A. Wall.

BY THE COURT.

This case involves the same question as the case bearing the same title and numbered in this court No. 2516, this day decided. For the reasons given in the opinion affirming the judgment in that case, the judgment in this case is also affirmed.

Civil No. 1782. Third Appellate District. September 26, 1918. *E. LA FLEUR, Plaintiff and Respondent, v. M. A. BURNS LUMBER COM

PANY (a Corporation), Defendant and Appellant. 11) ACTION FOR DAMAGES-PERSONAL INJURIES TO FOREMAN OF LUMBER MIL-NECLIGENCE-CHARACTER OF MACHINERY-FINDING SUSTAINED BY Evi DENCE.-In this action for damages for personal injuries sustained by a person employed to operate and oversee certain machinery in a lumber mill, based on the alleged negligence of the defendant, it is held that the finding that the machinery which the plaintiff was required to operate and oversee was imperfectly and improperly constructed and was defective and unsafe, is sustained by the evidence.

[2] ID.-WARNING AS TO UNSAFE ConditioN OF MACHINERY--PROMISE TO REPAIR-FINDING SUSTAINED BY EVIDENCE.--It is also held the finding that the defendant was warned by plaintiff of the defective and unsafe condition of the machinery, and that defendant promised to repair the same, but failed to do so, is supported by the evidence.

(3) ID.-INJURY AS RESULT OF ACCIDEXT-FINDING SUSTAINED BY EVIDENCE. -It is also held the finding that the injury was the result of the accident, is sustained by the evidence.

(4) ID.-MASTER AND SERVANT-PROMISE TO REMEDY DEFECTS-RIGHT OF SERVANT--CONTINUANCE IN EMPLOYMENT. —Where an employee notifies an employer of defects in machinery and the latter promises to remedy them, the former is justified in continuing in the employment upon the faith of the promise.

Appeal from the Superior Court of Shasta County-J. E. Barber, Judge.
For Appellant-John Ralph Wilson; Gillett & Cutler.
For Respondent-Dean & Carter.

The action was for damages caused by an injury in a lumber mill. The cause was tried without a jury, and the court found in favor of plaintiff in the sum of three thousand dollars. The appeal is from the judgment and the order denying the motion for a new trial. The only claim for a reversal is that the evidence insufficient to support certain material findings. Of them, the first one assailed is as follows:

"That at the time aforesaid, to-wit, on or about the 15th day of November, 1913, and while plaintiff was employed by defendant as aforesaid, certain machinery in said mill which the plaintiff was required to operate and oversee was imperfectly and improperly constructed and was defective and unsafe; said imperfection and unsafeness was caused by live chains rising above live rollers, which said chains and said rollers were revolving and rotating at right angles with each other; that by reason of said live chains rising above said live rollers said machinery was dangerous and unsafe in this, that said chains would come in contact with and catch upon the lumber and other sawed materials which were rolled out on said live rollers, and said chains would forcibly throw said lumber or other sawed material off of said live rollers, said rollers being too short to properly convey the timbers which were usually rolled out on same." As to this finding it may be said that it is not disputed that, on said date, plaintiff was employed, as foreman, by defendant, to operate and oversee said machinery. That the

*On rehearing (26 Cal. App. Dec. 720),

said machinery was improperly constructed and that it was dangerous to operate, as specified in said finding, is abundantly supported by the testimony. There was strong evidence to the contrary, but with that, of course, we can not be concerned. How is it possible to maintain that the trial court was not legally justified in its conclusion as to the character of the said machinery when we recall the following statements of witnesses? The plaintiff testified: "Basing my opinion upon my experience as a millwright, I would say that machinery as shown by the model is not properly constructed. The top of these chains ought to be under the surface of these rolls, and the rolls are too short for the timber they saw; they are 24 inches long and they should be 30 inches, or 3 feet long, anyway. The purpose of having the rolls along there is so you can run anything wide across it. The live skids and chains rise above the live rolls at a point almost half way across. When the timber is caught by the live chains it pulls it off into the slasher saws. We had to have a man standing there with a bar at the north end of that truss to keep crowding the timbers clear over on this side, in order to get them through, and lots of times they world have to crowd them on and follow them clear through in order to get them over . . No mill is properly constructed that has the skids above the surface of the rolls. That skid should be below the surface.”

The witness, G. R. Jones, an experienced millwright, also testified that in order to be properly constructed, "the skids must be below the rollers and the rollers ought to be longer".

Witness W. E. Lane testified that the machinery was defective for ihe same reason and “the rolls that were put into the truss in said mill were two feet long. We put in these rolls at the order of Mr. Broadwell. They were furnished to us”. Furthermore, that the purpose of these live chains is to “throw the slabs off the live rolls into the edger pits" and that the proper construction of a skid is “to have clearance from the rolls so the timber can pass over without catching. I mean below the live rolls.”

W. H. Gusha also testified to the same effect and declared: “In the operation of the mill, the result would be that timber came along there and would strike these things there like it does there now, that wouldn't go over the thing. That would carry it over here into these saws. Any. thing--don't make any difference what it is slabs, boards, timbers or any thing else."

We may quote this from Charles Noble's testimony: "That transfer skid is too high, too high to let your timbers come down," and as to the rolls he said they should be three feet long, "so that the machinery won't drop off. They don't always come down the rolls straight. If it is narrow rolls, they drop off.”

111 There is no controversy as to the competency of these witnesses, nor is it pretended that the subject is not a matter of expert testimony. If the foregoing does not justify the court's finding as to the character of the machinery then we are at a loss to understand what should be required.

12] Nor is there any more doubt as to the legal support for this finding: "That said defendant was, shortly prior to the said 15th day of November, 1913, warned by plaintiff of the defective and unsafe condition of the machinery in said sawmill, in the particulars hereinabove, in paragraph IV, set forth, and said defendant had, after being so warned by plaintiff, promised to repair said machinery, and to put the same in good repair and in a safe condition, but defendant despite said warning, and contrary to said promise, did fail and neglect to do so; that plaintiff had shortly prior to said 15th day of November, 1913, requested of defendant permission to repair said defective machinery, and to put the same in a safe condition

and had requested defendant for permission to place and keep the same in good repair but defendant did at all times refuse to permit plaintiff and did fail to authorize plaintiff to put said machinery in a good and safe condition; that at no time was it the duty of plaintiff, nor did plaintiff have the authority or permission, nor had he at any time been delegated by defendant to put said machinery in good repair or in a perfect condition nor did plaintiff at any time have in his charge or under his control the assistance or supplies or tools necessary to enable him to keep said machinery in good repair and in a safe and perfect condition or working order."

Every material fact contained therein is asserted by the plaintiff in his testimony. He testified that after becoming foreman he directed the attention of Mr. Danforth, the manager of the company, to these defects and asked permission to overhaul the machinery, but Mr. Danforth said: “We might do it some time but we can't do it now.” As to the repairs he desired to make, the plaintiff testified: "I was to build that truss over and I wanted to get rolls the same length that came from the head saw rigit straight through. I wanted to tear that slasher table out and shove it a head so that when the slab pulls through it won't catch in the conveyor - and break the saws; I wanted twelve inch rolls so it would run above those skids, and get longer skids; the chains would run the same way only they would be under the surface of the rolls." As to his authority to make changes, he testified positively that he had no such authority "without receiving orders from tlie managing officers. I had to make the application to Mr. Danforth; if anything broke I had to go to Mr. Danforth and get an order to get it. I couldn't do any repairs excepting keep the mill move ing”; that he couldn't take down anything and put in new machinery without asking. “The change I really wanted to make was to get longer rolls and bigger rolls and make a truss that would hold up the weight right straight through."

It is, however, contended by appellant that the trouble was with these slasher chains, that they performed no useful function, that they should have been removed by respondent, and, since he failed to do so, he is responsible for any damage resulting from their presence. There is testimony on behalf of appellant supporting this theory, but it is flatly contradicted by respondent's showing. The plaintiff testified: "There is a man working all of the time here at the end of this truss, whose duty it is to take a pickeroon when slabs come along, and throw them off the truss on to the table. He moves them over so that they catch the chains and as soon as they catch the chains, then the chains carry them.” It is a fair inference from his testimony and other evidence in the record that these chains, if properly placed, were necessary for the efficient and successful operation of the machinery, and that, without them, the output of the mill would have been impaired. That the chains were useful is also strongly confirmed by the circumstance that the mill was never operated for a day without them. Even while Mr. Burns was foreman, during the summer of 1914, the chains were left on the truss and they were not removed until after the mill was closed down. Nor is the situation affected by the consideration of the “automatic bumper” that was in use at one time. There is evidence that it did not remedy the said defective construction of the truss and that it was discontinued before plaintiff took charge of the mill as foreman. As to this he testified: “Well we had a lot of trouble with it. Sometimes we would use it, sometimes we couldn't use it. It was simply a spring that was put on there; it was just a common little spring that came off. It would be broken all the time, and it was almost impossible to keep it

new

going and sometimes it was in use and sometimes it wasn't. It wasn't in úse when Mr. Broadwell left, I am pretty sure.” It also appears from the testimony of Mr. Broadwell that, when the bumper was in use, it was necessary to keep a man at the north end of the truss to guide the lumber and timbers away from the chains and over said truss. We inay, therefore, regard the bumper as a feature of no moment in the determination of the cause.

The other important points are involved in the consideration of whether plaintiff was engaged in the performance of his duty at the time he claims to have received his injury, whether he was actually injured, and if se. whether it can be said to be the result of the unsafe condition of said machinery.

That he was doing work in the line of what was required of him under the circumstances as detailed by him is not disputed and, therefore, we need not quote testimony to support the proposition.

As to the fact of the injury and how it occurred plaintiff testified: "I was on the slasher table and there was a timber 16 x 16 which was 4 pieces of 8 x 8 which came down the live rolls and the chains on the live rolls truss pulled it off and struck me in the back and crowded me toward the saw and I swung around the end and I had to crowd them back against the live chain and shove them clear back on the live chains and let them go through. As I done that I felt like I had been cut open in the groin. I had a pain all the time. I didn't know what it was, until I went and saw the doctor. It was the end of the timber that struck me When I was struck I was standing some place halfway between the truss and the saws. The blow didn't knock me down because I braced myself. I could not have walked on ahead because I was too close to the saws to walk ahead; it crowded me." It appears further, that immediately there after he told Mr. Danforth that he had been injured, but the manager walked away and did not answer him. There is testimony, also, that he told his wife about it, but it seems that he mentioned it to no one else. He continued to work for the company, to look after the operation of the mill for two weeks thereafter until it closed down on December 2. He went to see Dr. Cornish on December 3 following, and on the 8th day of the month he was operated on for hernia. It may be admitted that plaintiff's story appears somewhat strange, singular and suspicious, but we can not say that it is inherently improbable. Attention is devoted by appellant. to certain circumstances that tend to discredit his account of the occur. rence, but they are not of sufficient weight, considered either separately or in the aggregate, to compel the conclusion that plaintiff was either mistaken in any material point or was fabricating any portion of the story. 131 The circumstances surrounding the transaction were, no doubt, carefully considered by the trial judge, who concluded that plaintiff realized and related what happened, and his finding to that effect is not to be overturned here. It would accomplish no good to comment upon his story, as we find no sufficient reason to take it out of the rule that commits the determination of the weight of the evidence and the credibility of the witnesses to the trial judge when passing upon questions of fact. It may be said. also, to be a reasonable inference from plaintiff's testimony that the accident would not have occurred had it not been for said defects in the construction and operation of said machinery. The timbers were thrown off by reason of the extension of the chains over the rolls. The circumstance of the width of said rollers was probably, also, a factor in the movement of said timbers. It may be that if the man, whose duty was to stand near the truss und guide with a "pickeroon" the movement of the lumber, had been in his

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