proper mode will be required before the writ will be granted. (State
ex rel. v. Hare, 540.)

Mandamus-Doubtful Nature of Questions Involved.

4. Mandamus will issue only in cases of necessity to prevent in-
justice or great injury, and if there is a doubt of its necessity or
propriety, it will not be issued. (State ex rel. v. Hare, 540.)

Mandamus to Reinstate Teacher Unlawfully Removed by School
Board.

5. Mandamus will lie to compel a school board to reinstate a
teacher who is holding under a statutory tenure, and has been re-
moved either without proper proceedings or for an insufficient reason.
(Richards v. District School Board, 622.)

Mandamus-Under What Circumstances the Writ will Issue-Con-
struction of Contracts.

6. Where the law imposes an obligation on a particular person to
perform some particular act, and no other specific remedy is provided
for, mandamus is the proper remedy, and the remedy may be applied
to compel the performance of a contract that involves an official duty,
though it will not lie to enforce private contracts. (Peterson v.
Lewis, 641.)

Mandamus-Compelling Performance of Official Duties.

7. The state highway engineer is required under the act of 1913,
Laws of 1913, page 663, to provide information to the contractor and
render assistance to the county authorities, and, among other things,
is to furnish a final estimate of the work done on the contract, and
where he fails or refuses, may be compelled to furnish such final esti-
mate by mandamus. (Péterson v. Lewis, 641.)

Mandamus-Parties "Deputy" to Act Only in Behalf of His Principal.
8. The act creating the office and prescribing the duties of the
state highway engineer, Laws of 1913, page 663, were amended by
Laws of 1915, page 537, transferring those duties to the state engineer
and requiring such duties to be performed by his deputy. A proper
performance of the duties required by the act could be enforced by
mandamus against the state engineer, for the reason that the deputy
state engineer was not an independent officer, but acted only on
behalf of his principal. (Peterson v. Lewis, 641.)

MARRIAGE.

As Ground for Dismissing Teacher.

See Schools and School Districts, 10.

MASTER AND SERVANT.

Master and Servant-Actions for Injuries-Questions for Jury.
1. In an employee's action for injuries sustained while reducing a
carload of lumber and claimed to have been caused by the method in
which the foreman directed that the work should be done, evidence
held to make the question for the jury as to whether the method of
performing the work adopted by the employer was different from the
usual one pursued by it. (Adams v. Corvallis & E. R. Co., 117.)

Master and Servant-Liability for Injuries-Contributory Negligence.
2. Where employees were not permitted to perform their work in
their own way, nor according to the usual method adopted by the
employer, but were directed by the foreman, who represented the
employer and whose orders it was their duty to obey, to follow a
different method, the employer was in no position to assert that the
injury sustained by one of such employees by reason of the method
of doing the work was occasioned by his fault. (Adams v. Corvallis
& E. R. Co., 117.)

Master and Servant-Actions for Injuries-Questions for Jury.

3. Where an employer's foreman told employees who were reducing
a carload of lumber that the method followed by them was too slow,
and that one of them should get inside the car and shove out pieces
of lumber until a sufficient amount had been removed, when the other
was to signal him to stop, and then pick up and pile the lumber, and
there was evidence that the employees had difficulty in hearing and un-
derstanding each other's signals, it was a question for the jury whether
the method adopted by the employer was a reasonably safe one, and
whether the work was carried on so as to expose the employee picking
up the lumber to risks and dangers which might have been guarded
against and avoided by the exercise of due care. (Adams v. Cor-
vallis & E. R. Co., 117.)

Master and Servant-Liability for Injuries-Methods of Work.

4. In the absence of specific statutory requirements, a railroad
company discharges its full duty to its employees in adopting and
using standard railroad methods, rules or systems. (Adams v. Cor-
vallis & E. R. Co., 117.)

Master and Servant-Liability for Injuries-Care Required.

5. An employer is not an insurer, but is liable for consequences
not of danger, but of negligence, and the unbending test of negli-
gence in methods, machinery and appliances is the ordinary usage of
the business; the standard of due care being the conduct of the or-
dinarily prudent man. (Adams v. Corvallis & E. R. Co., 117.)

Master and Servant-Actions for Injuries-Burden of Proof.

6. An employee suing for injuries claimed to have been due to
an unusual method of work which he was directed by the foreman to
follow was bound to show, not only that the method adopted and pur-
sued was unusual, but that it was more dangerous in itself than the
ordinary one. (Adams v. Corvallis & E. R. Co., 117.)

Master and Servant-Actions for Injuries-Questions for Jury.

7. According to the testimony for plaintiff in an employee's ac-
tion for injuries sustained while reducing a carload of lumber, F. was
handing lumber to plaintiff, when the foreman stated that that was
too slow a method of removing the lumber; that F. should get inside
the car and shove out pieces of lumber; that plaintiff should stand
aside and keep tally as the pieces fell, and, when a sufficient amount
had been removed, signal F. to stop, and, upon receiving his answer,
pick the lumber up and pile it. Plaintiff and F. protested against
this method, but complied with the order. After a number of sticks
had been thrown out plaintiff called F. to stop, but F., being uncer-

tain whether he heard a call, answered back twice, and, receiving no
reply, threw out another piece, striking plaintiff, who had started to
pile up the lumber. Plaintiff testified that he heard F. answer, but
could not say what he said. Held, that plaintiff was not negligent as
a matter of law, as the evidence showed that it was not easy for
the men to hear each other's signals, and it was necessary for plaintiff
to accept F.'s response to his signal or cause the very delay which the
foreman's order was designed to obviate. (Adams v. Corvallis & E.
R. Co., 117.)

Master and Servant-Actions for Injuries-Burden of Proof.

8. A servant who disobeys the orders of his superior takes upon
himself the burden of showing the lawful reason for such disobedience.
(Adams v. Corvallis & E. R. Co., 117.)

Master and Servant-Liability for Injuries-Contributory Negligence
-Disobedience of Orders.

9. A servant is not guilty of contributory negligence in obeying
the orders of his master, unless the risk is so great that a person of
reasonable prudence under the same circumstances would have refused
to obey. (Adams v. Corvallis & E. R. Co., 117.)

Master and Servant-Actions for Injuries-Instructions.

10. In an employee's action for injuries sustained while assisting
in reducing a carload of lumber and claimed to have been caused by
the unusual and dangerous method of doing the work adopted by the
employer's foreman, the instructions held to have fairly submitted the
question to the jury. (Adams v. Corvallis & E. R. Co., 117.)

Master and Servant-Liability for Injuries-Assumption of Risk.

11. Independent of the statute, a servant assumes the ordinary
risks and dangers incident to his employment. (Adams v. Corvallis
& E. R. Co., 117.)

Master and Servant-Actions for Injuries-Presumptions-Assump-
tion of Risk.

12.

Where the jury finds an employer negligent, assumption of risk
is not presumed. (Adams v. Corvallis & E. R. Co., 117.)
Master and Servant-Liability for Injuries-Assumption of Risk.
13. An employee did not assume risks occasioned by the negli
gence of his employer. (Adams v. Corvallis & E. R. Co., 117.)
Master and Servant-Liability for Injuries-Assumption of Risk.
14. An employee did not assume the risk of injury in obeying the
orders of his foreman, unless a person of ordinary prudence would not
have done so. (Adams v. Corvallis & E. R. Co., 117.)

1

Master and Servant-Liability for Injuries-Contributory Negligence
Distinguished from Assumption of Risk.

15. In an employee's action for injuries sustained while assisting
in reducing a carload of lumber, it was plaintiff's claim that against
the protests of him and F. the foreman directed F. to get in the car,
where he could not see plaintiff, and shove out pieces of lumber until
signaled by plaintiff to stop, when plaintiff was to pile up the lumber;
that he and F. had difficulty in understanding each other's signals,

and that he signaled F. to stop, but was injured by another piece
thrown out by F. It was defendant's claim that plaintiff carelessly
and negligently, without giving F. the signal to stop, and in violation
of instructions, commenced picking up the lumber while F. was throw-
ing it out. Held, that this dispute was properly tried out as a ques-
tion of contributory negligence, and not as one of assumption of risk.
(Adams v. Corvallis & E. R. Co., 117.)

Master and Servant-Injury to Third Person-Presumption and Bur-
den of Proof.

16. Where an injury to a third person occurs through the negligence
of a driver regularly employed by the owner of an automobile, the
jury are justified in inferring that the driver was acting within the
scope of his authority, and upon the employer's business, and the
employer has the burden of rebutting such evidence by showing that
the real fact is otherwise. (Kahn v. Home Tel. & Tel. Co., 308.)
Master and Servant-Pleading-Sufficiency of Reply.

17. In a servant's action for injury from dangerous and unguarded
machinery, where the master pleaded contributory negligence and
assumption of risk, a reply alleging that the control of the power
was not visible from the place where plaintiff was injured, that he
worked in a dangerous place only because ordered to work there,
that he had no knowledge as to the manner of operating the ma-
chinery or of the dangers and risks of going underneath a sorting
table in the sawmill, that he did not negligently place his hand
or sleeve into the cogwheels, and denying that his injury was in
any way due to his negligence, was a sufficient denial of the affirma-
tive defense. (Ramaswamy v. Hammond Lumber Co., 407.)

Master and Servant-Negligence Employers' Liability Act-Contrib-
utory Negligence.

18. Under Employers' Liability Act (Laws 1911, p. 16) contribu-
tory negligence is not a defense, but may be taken into account by
the jury in fixing the damages. (Ramaswamy v. Hammond Lumber
Co., 407.)

Master and Servant-Master's Liability-Assumption of Risk.

19. The defense of a servant's assumption of risk is not available
in an action coming within the provisions of the Employers' Liability
Act (Laws 1911, p. 16). (Ramaswamy v. Hammond Lumber Co., 407.)

Master and Servant-Action for Injury-Evidence-Machinery.

20. In a servant's action for injury from dangerous and unpro-
tected cogwheels in a sawmill, evidence for plaintiff of a mechanical
engineer who had visited the sawmill and examined the sorting-table
where plaintiff was injured and observed the manner in which it
was operated was admissible, where the operation was approximately
the same as when the machinery was run before, and where a dia-
gram of the sorting-table and the machinery showing the cogwheels
was in evidence. (Ramaswamy v. Hammond Lumber Co., 407.)

Master and Servant-Dangerous Place to Work-Evidence.

21. In view of Employers' Liability Act (Laws 1911, p. 16),
Section 2, providing that the manager or foreman in charge of
construction or operation should be the agent of the employer in
78 Or.-45

all suits for damages for injury to an employee, evidence in a ser-
vant's action for injury, where there was a dispute as to whether
he was directed to work where he was injured, to the effect that the
defendant's foreman had told him that if he did not like the job
he could leave, was admissible as tending to show where plaintiff
was required to work. (Ramaswamy v. Hammond Lumber Co., 407.)
Master and Servant-Instructions-Contributory Negligence.

22. In view of the Employers' Liability Act (Laws 1911, p. 16),
declaring contributory negligence to be no defense, defendant's re-
quested charge that its negligence could not be presumed from the
accident, but that plaintiff must show it was caused by defendant's
sole negligence without plaintiff's own negligence, was properly modi-
fied by adding that, if it was solely the plaintiff's fault, and not his
contributory fault, he could not recover. (Ramaswamy v. Hammond
Lumber Co., 407.)

Master and Servant Title of the Workmen's Compensation Act is
Constitutional.

23. The title to the Workmen's Compensation Act (Laws 1913,
p. 188) is as follows: "An act creating the State Industrial Accident
Commission and providing an Industrial Accident Fund, making an
appropriation for such fund and providing for the administration of
the terms of the act, providing for the collection and disbursement of
funds for the benefit, compensation and care of workmen, prescrib-
ing the duties of employers and workmen subject to this act, and
providing penalties for the violation of the terms of this act, and
abolishing in certain cases the defenses of assumption of risk, con-
tributory negligence and the negligence of a fellow-servant in actions
for personal injury and death," does not violate that part of the state
Constitution requiring every act to embrace but one subject, which
shall be expressed in the title. (Evanhoff v. State Industrial Acc.
Com., 503.)

Master and Servant-Constitutionality of the Workmen's Compensa-
tion Act.

24. The act under consideration (Laws 1913, p. 188) is not uncon-
stitutional, because it requires the employee to elect at the time of
his employment and prior to any injury whether or not he will come
under the terms of the act, and further providing that in case he
chooses to come under the terms of the act, he thereby waives the
right to resort to the courts for redress, since the act proposes to both
employers and employees a scheme for obtaining life and accident
insurance in lieu of litigation, but is not compulsory on either, and
this feature eliminates the objection that the act is unconstitutional.
(Evanhoff v. State Industrial Acc. Com., 503.)