Hardesty v. Largey Lumber Co., 34 Mont. 151, 86 Pac. 29, as follows: "Where the thing which causes the injury is shown to be under the management and control of the defendant, and the accident is such as in the ordinary course of things does not happey if those who have such management and control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from the want of ordinary care by the defendant. Under such circumstances, proof of the happening of the event raises a presumption of the defendant's negligence, and casts upon the defendant the burden of showing that ordinary care was exercised." It will be seen that this rule rests upon presumption; that is, that in view of the surrounding circumstances the accident would not have happened, had defendant used ordinary care. When the surrounding circumstances leave room for a different presumption, as in this ease, that the injury occurred, or may have occurred, by reason of the negligence of fel low servants, the reason of the rule fails, and the doctrine "res ipsa loquitur" cannot be invoked.

The judgment of the district court of Silver Bow county is affirmed.

Affirmed.

BRANTLY, C. J., and HOLLOWAY, J.,

concur.

NEUMAN v. GRANT et al. (Supreme Court of Montana. Oct. 25, 1907.) 1. ACTION-JOINDER OF CAUSES.

Under Code Civ. Proc. § 672, authorizing the joinder of causes of action arising out of contracts, express or implied, plaintiff was entitled to join in the same complaint a count on an express contract for the construction of a cistern with a count on quantum meruit for the same services and materials.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Action, §§ 433, 439.]

2. PLEADING-COUNTS OF DECLARATION.

Plaintiff in good faith may state a single cause of action in two counts, when the averments of each are not so inconsistent as to be contradictory, and the defendant is not misled to his prejudice.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, § 114.]

3. MECHANIC'S LIEN - VERIFIED ACCOUNT SPECIFICATIONS.

A verified account attached to a mechanic's lien statement, reciting a charge for excavating $8, mason's helper $6, drayage 50 cents, cement $8.75, lime $5, sand $1.50, brick $20, mason's work and contractor's services $20.25, total $70, constituted a substantial compliance with Code Civ. Proc. § 2131, as amended by Laws 1901, p. 162, requiring the filing with the county clerk of a just and true account of the amount due after allowing all credits, etc.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, §§ 258, 259.] 4. SAME-COSTS.

Code Civ. Proc. § 1863, provides that, in an action to foreclose a mechanic's lien, the court must allow as costs the money paid for filing

and recording the lien, and a reasonable attorney's fee in the district and Supreme courts. Held, that the court was not authorized to allow any sum for the preparation and verification of the lien, nor for the abstract of title to the property covered by the lien.

Appeal from District Court, Flathead County; J. E. Erickson, Judge.

Action by A. T. Neuman against E. R. Grant and others. From a judgment for plaintiff, defendant Grant appeals. Modified and affirmed.

Charles W. Pomeroy, for appellant. B. F. Maiden, for respondent A. T. Neuman,

SMITH, J. This is an appeal from a decree of foreclosure of a mechanic's lien, entered by the district court of Flathead county. The complaint contains two counts, so called. The charging part of the first count is as follows: "That heretofore, to wit, on or about the 15th day of August, 1905, this plaintiff and the said defendant, Grant, entered into a contract and agreement, as follows: Said plaintiff, at the special instance and request of the defendant, Grant, agreed to dig, and excavate, wall up with brick, line with cement, and finish in a good and workmanlike manner, one 50-barrel cistern on the premises hereinafter described, and then and there and now belonging in fee to the said Grant, situate in the town of Whitefish, county of Flathead, and state of Montana, all for a reasonable sum; and said Grant agreed that, in consideration of the plaintiff's doing such work and furnishing such material, he would pay to said plaintiff, upon the completion of such work, a reasonable sum therefor. That thereafter, in a reasonable time, to wit, before the 29th day of October, 1905, plaintiff did all the work and furnished all the materials on and about the construction of said cistern, and completed the same in a good and workmanlike manner. that such work and materials were and are reasonably worth the sum of $70." The second count sets forth: "That heretofore, to wit, on or about the 15th day of August, 1905, this plaintiff and said defendant, Grant, entered into an agreement and contract as follows: Said plaintiff, at the special instance and request of said Grant, agreed to dig and excavate, wall up with brick, line with cement and finish in a good and workmanlike manner, one 50-barrel cistern on the premises hereinafter described and then and there and now belonging to the said Grant in fee, situate in the town of Whitefish, county of Flathead, and state of Montana, all for the sum of $70; and said Grant agreed that in consideration of the plaintiff's doing such work and furnishing such material, he would, on such completion of the same, pay to the said plaintiff the sum of $70. That thereafter, in a reasonable time, before the 29th day of October, 1905, [plaintiff] did all the work and furnished all the materials, in an, and about such construction of said cistern,

And

purely statutory, and our statute (Code Civ. Proc. 1863) does not cover these items.

This cause is remanded to the district court of Flathead county, with directions to strike from the judgment the two items of costs above mentioned, whereupon the judgment will stand affirmed, as so modified.

Modified and affirmed.

BRANTLY, C. J., and HOLLOWAY, J.,

concur.

36 Mont. 92)

STEPHENS v. ELLIOTT. (Supreme Court of Montana. Oct. 28, 1907.) 1. NEW TRIAL-DISCRETION OF Court.

A motion for a new trial because of the insufficiency of the evidence is addressed to the legal discretion of the trial court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 9, 10.]

2. PLEADING-ISSUES AND PROOF.

Where it was alleged that plaintiff was injured while pursuing his occupation of running a whim, evidence was admissible to show that he was employed to work as a teamster, but subsequently put to work running the whim. 3. APPEAL-RESERVATION OF GROUNDS OF

REVIEW.

Where an answer of a witness was not responsive to the question, and no motion was made to strike the answer out, the point whether the question was leading cannot be raised on appeal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1287.]

4. SAME-REVIEW-EXHIBITION OF PERSON TO

JURY-DISCRETION OF Court.

In a negligence suit, an application to inspect plaintiff's injured limb in the jury's pres ence is addressed to the legal discretion of the trial court, and its ruling will not be disturbed except for a manifest abuse of discretion. 5. TRIAL-ORDER OF PROOF EVIDENCE TO ANTICIPATE DEFENSE-DISCRETION OF Court.

In a personal injury suit, the introduction of evidence in chief to anticipate an affirmative defense that plaintiff is simulating is proper, and, though it may more properly be introduced in rebuttal, the order of proof rests largely within the discretion of the trial court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 147.]

6. EVIDENCE-DEMONSTRATIVE EVIDENCE-EXHIBITION OF PERSON.

In a personal injury suit, it is not error to allow a physician to demonstrate upon plaintiff's injured limb before the jury showing the extent of the injury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 677.]

The court takes judicial notice of standard mortality tables, and, if it is satisfied that one offered is of that character, no further identifiIcation is necessary, and it may be read by an attorney not sworn as a witness.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20. Evidence, § 17.]

8. TRIAL VIEWING PREMISES-DISCRETION OF COURT.

Where in a negligence suit drawings of the machinery causing the injury were presented to the jury, who stated that they understood the situation, the court acted within its discretion in refusing to allow them to view the premises. [Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 77-79.]

9. MASTER AND SERVANT-INJURIES TO SERVANT-DUTY TO PROVIDE SAFE APPLIANCESKNOWLEDGE OF DEFECTS.

The master must exercise reasonable care to provide the servant with reasonably safe appliances with which to work, and it is immaterial that he did not know of existing defects if he might have known of them by the exercise of ordinary care.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 243-251.] 10. TRIAL-INSTRUCTIONS- CONSTRUCTION AS A WHOLE.

Where the instructions as a whole properly state the law of contributory negligence, the giving of one which does not fully cover the question is not prejudicial error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46. Trial, §§ 703-717.]

11. MASTER AND SERVANT-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE.

Whether an employé is guilty of contributory negligence resulting in his injury by machinery depends upon his experience or lack of experience in the employment and his knowl edge or lack of knowledge of the risks incident to it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 538, 687, 694.] 12. SAME ASSUMPTION OF RISK-Burden of PROOF.

The burden of proof is on defendant to establish the defenses of contributory negligence and assumption of risk.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 907, 908.] 13. TRIAL INSTRUCTIONS - ASSUMPTION FACT IN ISSUE.

OF

In a suit for injuries caused while running a whim, where a fact in issue is whether plaintiff had been employed for that purpose, an instruction which assumes that he was so employed is erroneous.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 420-431.]

Appeal from District Court, Madison County; Lew L. Callaway, Judge.

Action by Ed Stephens against Hugh Elllott. From a judgment for plaintiff, defendant appeals. Affirmed.

Clark & Duncan, for appellant. Kremer, Sanders & Kremer and S. V. Stewart, for respondent.

HOLLOWAY, J. This is an action for damages for personal injuries. The plaintiff was employed by the defendant to work in Madison county. Soon after his employment he was set to work running a whim, used for hoisting ore from the Lehigh mine, owned and operated by the defendant near Norris. On May 6, 1905, while engaged in this business, the plaintiff was injured, and he brought this action to recover damages. The jury returned a verdict in his favor for $2,500, and from the judgment entered on the verdict and from an order denying him a new trial the defendant has appealed.

At the close of plaintiff's case, the defendant moved the court for a nonsuit, which was overruled, and at the close of all the testimony made a motion for an instructed verdict, which was denied. These rulings of the court, together with the order denying the defendant a new trial, are assigned as

erroneous, presenting the question of the sufficiency of the evidence to entitle the plaintiff to recover. No useful purpose would be served in giving even a brief summary of the evidence. Suffice it to say, we have examined it all and fully concur in the ruling of the trial court in each of the orders above. We think the plaintiff made out a prima facie case, which was sufficient to defeat the motion for a nonsuit. And, while the testimony given on behalf of the defendant is reasonably clear, and, if believed by the jury, would have entitled him to a verdict, it was contradictory of that given on behalf of the plaintiff and presented issues which were properly submitted to the jury. "The defendant's evidence, though contradictory, in some particulars, of that put in by the plaintiff, did not make out a case so clear and indisputable as would have justified the court in giving the peremptory instruction requested." Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct. 387, 38 L. Ed. 224. A verdict having been returned in favor of the plaintiff. the motion for a new trial upon the ground of the insufficiency of the evidence to sustain it was addressed to the sound, legal discretion of the trial court, which heard the evidence as given from the witness stand, had opportunity to observe the witnesses, and was therefore better qualified to judge of the character of the testimony than this court, and with the order denying a new trial upon that ground we are not inclined to interfere. Fournier v. Coudert, 34 Mont. 484, 87 Pac. 455, and cases cited.

Exception is also taken to certain rulings of the trial court in admitting evidence on behalf of the plaintiff. It is contended that the court erred in permitting the plaintiff, over objection of defendant, to testify that he was employed by the defendant to work as a teamster, and it is said that this evidence is incompetent and irrelevant under the issues made by the pleadings; and this question is presented, also, by certain instructions given by the court. The allegation in the complaint is that the plaintiff was injured while he "was pursuing his occupation of running said whim," etc. But we cannot see anything inconsistent between that allegation and plaintiff's contention that he was actually employed as a teamster, but subsequently put to work running the whim against his objections and protests. While actually engaged in running the whim, that was his "occupation," even though he was employed for a different character of work. We think the evidence was properly admitted, and that the court correctly charged the jury that they might take into consideration the fact, if it was a fact, that the plaintiff was employed for a different kind or character of work, but put temporarily at work running the whim, in order to determine whether the defendant, as master, kid discharged his duty towards the servant in instructing him as to the dangerous character of such em

ployment, if the jury found that the work of running such whim was of a peculiarly dangerous character. If the jury found that the plaintiff was not employed for this particular work, that he was not a skilled mechanic, that he was ignorant of the machinery which he was required to operate, and that the work of operating it was of a peculiarly dangerous character, and these facts were known to the defendant, or ought to have been known to him, then it was the duty of the employer to give to the employé instructions as to the dangers incident to such emloyment. In Baxter v. Roberts, 44 Cal. 187, 3 Am. Rep. 160, the rule is announced as follows: "Nor is there any doubt that if the employer have knowledge or information showing that the particular employment is from extraneous causes known to him hazardous or dangerous to a degree beyond that whh it fairly imports or is understood by the employé to be, he is bound to inform the latter of the fact or put him in possession of such information. These general principles of law are elementary and firmly established. They are usually applied to cases in which the employé has sustained injury by reason of some defect or unsoundness in the machinery or materials unknown to him about which he is employed to perform labor and of which the employer knew, or might have known in the exercise of ordinary care and vigilance upon his part." The act of negligence charged against the defendant is his failure to exercise reasonable care in providing plaintiff with suitable and safe machinery with which to work. Among other particular defects in the machinery mentioned is a worn wire cable in which some of the strands are alleged to have been broken and pieces of wire projecting from the cable. While plaintiff was testifying in his own behalf, he was asked by his counsel if the cable was "as smooth as a pencil, or like a new piece of rope." The question was objected to as leading, but the objection was overruled. The answer of the witness was not at all responsive to the question, and, as a motion to strike out the answer was not made, the defendant cannot now complain, and it is unnecessary for us to consider whether in fact the question as formed was leading.

Dr. Fain, who attended the plaintiff at the time of his injury and for some two months thereafter, was permitted by the court, over he objection of the defendant, to make use of plaintiff's injured arm to demonstrate or explain his testimony. The reason urged for the objection is that the testimony already given by the plaintiff was to the effect that other doctors had operated on the injured arm after Dr. Fain ceased to give it his care and before the trial. But, conceding this to be true, we wholly fail to understand how it could affect the testimony of Dr. Fain in so far as his conclusions were based upon facts obtained by him at the time of the injury,

32 Fed. 36, it was held that, where the plaintiff claimed to be paralyzed by a fall, it was not error to permit a medical attendant, who had not been sworn, to demonstrate the loss of feeling on the part of the plaintiff by thrusting a pin into the side of plaintiff claimed to be paralyzed. See, also, 2 Jones on Evidence, § 406, 1 Wigmore on Evidence, § 445, and 2 Wigmore on Evidence, § 1160, where the subject is treated at length.

Dr. Bradley also testified on behalf of the plaintiff, although he had never seen the injured arm until two days before the trial. By this witness the plaintiff was apparently attempting to anticipate and refute a theory of defendant that plaintiff was simulating, and that in fact his injuries were not so serious as he claimed, and also to show that the injuries were of a permanent character, as claimed by the plaintiff in his complaint. So far as the testimony given was directed to the question of plaintiff's simulating, it might have come more properly in rebuttal; but this was not the objection made to it, and, in any event, the order of proof is largely within the discretion of the trial court. Campbell v. Rankin, 2 Mont. 363; Tague v. John Caplice Co., 28 Mont. 51, 72 Pac. 297. The objection offered was that it was incompetent and irrelevant, but we are not able to agree with counsel in either of these contentions. The defendant offered testimony tending to show that plaintiff had made exhibitions of the use of his injured arm some time after the accident and had carried a bucket with contents of considerable weight in the hand of his injured arm. The evident purpose of this evidence was to contradict the testimony of plaintiff that since his injury he had not been able to grasp anything with his right hand, and to leave the impression that plaintiff was in fact simulating. As we have said, the logical order of proof probably was not followed; but the testimony of Dr. Bradley that the plaintiff could not simulate the condition which the witness found, or the consequences of such condition, was both competent and relevant.

Dr. Bradley was also permitted to make an experiment, or rather demonstration, before the jury. He testified that the motor nerves of plaintiff's right arm were entirely destroyed, and that in sympathy with this condition the sensory nerves, which control the feeling in the hand, had become so far paralyzed that the plaintiff had no feeling in his hand; and to demonstrate this he was permitted to stick a hypodermic needle into the back of plaintiff's right hand. We cannot see any objection to the order of the court in permitting this demonstration before the jury. That such demonstrations are permitted is. 'quite generally recognized by the courts and

Upon the trial counsel for plaintiff offered and read in evidence, over defendant's objection, certain mortality tables for the purpose of showing the probable expectancy of plaintiff's life. The particular objection urged was that the tables were not identified, but were read by an attorney who was not a witness and not under oath. While there is some conflict in the authorities, the weight of the authorities seems to be in harmony with the trial court's ruling that the court takes judicial notice of standard mortality tables, and, if the court is satisfied that the one offered is of that character, no further identification is necessary; and it is immaterial that the portion read is read by an attorney who is not sworn as a witness in the case. 17 Ency. of Law (2d Ed.) 900; 20 Ency. of Law (2d Ed.) 886; Keast v. Santa Ysabel G. Min. Co., 136 Cal. 256, 68 Pac. 771; Nelson v. Branford L. & W. Co., 75 Conn. 548, 54 Atl. 303; Lincoln v. Power, above.

Exception is taken to the refusal of the trial court to permit the jury to be taken to the Lehigh mine for the purpose of inspecting the machinery by which the plaintiff alleged he was injured. Certain drawings of the machinery were presented to the jury, and upon inquiry from the court the jurors all said that they understood the situation. In view of this and the considerable distance which the jury would have been compelled to travel to the mine, we certainly cannot say that the court abused its discretion in refusing defendant's request, and that it was a matter of discretion in the trial court is settled beyond controversy. Maloney v. King, 30 Mont. 158, 76 Pac. 4; Code Civ. Proc. § 1081.

Exception is taken to instruction No. 3 given by the court. It is said that it is erroneous in two respects: First, in that it fails to advise the jury that they must find that the defendant had knowledge of the defects in the machinery of which complaint is made. But that objection is not tenable, for it is immaterial that the master did not know of the defects in order to hold him liable, if by the exercise of ordinary care he should have known of them. The rule of law is that the master shall exercise reasonable care to provide his servant with reasonably safe appliances with which to work. Anderson v. Northern Pac. Ry. Co., 34 Mont. 181, 85 Pac. 884. And this rule, we think, was fully given in the instructions of the court. Second, it is said that this instruction would have