1 Roth v. Eccles. brick buildings. It is true, the aperture through which fell the brick that caused the injury had not been closed up, but it is shown by the proof that it is customary in the trade to leave such apertures open while the construction of the walls of the building is going on. The employe had worked there for a considerable length of time prior to the accident; knew how the work was being carried on; saw the scaffolds and the height of the wall; knew the bricks were being pitched from hand to hand by his co-employes, that brickmasons were at work over the aperture in question, and that the aperture was open; was aware of the location of the mortar box, and its distance from the wall; and, with full knowledge of all these things, worked there voluntarily, without, so far as shown by the record, making any objection either to the manner of the performance of the work by himself or his co-employes, or to the open window, or the nearness of the mortar box to the wall. His opportunities to observe and know the dangers connected with the operations were just as good as were those of the employer. Under such circumstances the employe cannot be heard to complain that the master did not furnish him a safe place within which to perform his labor. Christienson v. R. G. W. R. Co., 27 Utah, 132, 74 Pac. 876. The employer was not bound to furnish the employe an absolutely safe place to work. A reasonably safe place, under the circumstances, was all that 2 was required. The falling of the brick was but an incident to the employment, the danger of which the employe, who, in the absence of proof to the contrary, we must assume to be a man of ordinary understanding, with requisite knowledge of his business, could foresee as well as could his employer. The mere fact that the employer did not close up the aperture, or do some special thing which would have prevented the accident, did not in itself render him guilty of actionable negligence. Nor does the mere showing that the doing or not doing of a thing is dangerous prove it to Roth v. Eccles. be negligent. If the employer provides a reasonably safe place under the circumstances, furnishes reasonably safe appliances suitable to the employment, and conducts the business in accordance with the ordinary usages and customs of the trade or employment, he performs his duty to the employe in this regard. In Fritz v. Electric Light Co., 18 Utah, 493, 56 Pac. 90, this court said: "It is further contended that defendant's failure to guard, protect, and insulate the dynamos was negligence. The machinery and appliances used by defendant in its electric light plant before and at the time of the accident were of the kind commonly and ordinarily used in other electric light plants, and the manner and methods of running and operating them were the same. The rule has become elementary that where a master has furnished the servant with machinery and appliances reasonably safe and suitable, and such as are in general use for carrying on the same kind of business as that in which the master is engaged, and the servant is injured without any fault of the master, the master cannot be held liable because he failed to make use of some attachment or special device that might have rendered the operating of the machinery less dangerous, and the accident thereby might have been avoided." Bailey, Mast. Liab., p. 145; Titus v. Railway, 136 Pa. 618, 20 Atl. 517, 20 Am. St. Rep. 944. We are of the opinion that the court ought to have given the peremptory instruction requested. The case must be reversed, with costs, and remanded to the lower court for further proceedings in accordance herewith. It is so ordered. 3 MCCARTY and STRAUP, JJ., concur. In re Reed's Estate. In the Matter of the Estate of EDWARD A. REED, The findings of the lower court in the matter of allowances to an administrator, and offsets in his favor against the estate, cannot be reviewed on appeal from an order approving the administrator's final account, where the record does not contain any of the evidence pertaining to the matters in dispute. (Decided March 10, 1905.) Appeal from the Second District Court, Weber County. -Hon. H. H. Rolapp, Judge. From an order approving and allowing the report and final account of G. H. Burgitt, deceased, late administrator of said estate, Millie G. Reed, administratrix appealed. AFFIRMED. Messrs. Heywood & McCormick for appellant. Messrs. Henderson & Macmillan for respondents. If this court should say that the abstract was sufficient to conform to the rules of this court, then we would ask the court to affirm the judgment of the lower court, for the reason that the errors relied upon by the appellant are not saved by a sufficient or any "bill of exceptions." If the court will turn to page 16 of the so-called "abstract," it will find a piece of paper entitled "bill of exceptions," and it affirmatively appears 28 Utah-30 In re Reed's Estate. from this "bill of exceptions" that it does not contain all the evidence or the substance of all the evidence introduced at the trial of this action, or the substance of all the evidence upon which errors are predicated. This court has time and time again decided "Where a 'bill of exceptions' does not purport to contain the substance of all evidence produced at the trial, it will be presumed on appeal that there was sufficient proof to support findings and decision." Fields v. Mining Co., 25 Utah 76; Mining Co. v. Gibson, 21 Utah 68; Culmer v. Cane, 22 Utah 216; Snyder v. Emerson, 19 Utah 319; Warner v. Association, 8 Utah 431. STRAUP, J.-In August, 1894, one G. H. Burgitt was appointed administrator of the estate of Edward A. Reed, deceased. In July, 1900, Burgitt died, without making any report or account of his doings as administrator; and thereafter Millie G. Reed, one of the appellants, was appointed administratrix of said estate, and R. T. Hume, one of the respondents, was appointed administrator of the estate of said Burgitt. On petition by said Millie G. Reed, a citation was issued, requiring the said Hume and the bondsmen of said Burgitt to report and show the receipts and disbursements of the said Burgitt during the time he was such administrator. Such a report and a final account were made, to which said Millie G. Reed took exceptions, and traversed the material facts relating to the disbursements. At the hearing thereof, both parties were represented by counsel, evidence was introduced, and at the conclusion the court made findings and an order approving and allowing the report and final account, as made and reported. Therefrom said petitioner appeals, attacking the findings; claiming that the allowances made by the court for administrator's and attorney's fees, and the amount of money Burgitt paid his attorneys for services in several litigations wherein the said Reed estate was a party, were unreasonable, and claiming the court erred in off-setting against moneys coming into his hands a Dull v. Mining Co. personal claim of said Burgitt against said estate theretofore allowed and approved by the court. We are wholly unable to review any of these matters, for the record before us does not contain any of the evidence pertaining thereto. In such case it will be presumed the findings are in accordance with and supported by the evidence. The order of the lower court approving the said final account is affirmed. BARTCH, C. J., and MCCARTY, J., concur. CHARLES M. DULL, Respondent, v. THE MAM- 33 No. 1590. (79 Pac. 1050.) Court Stenographers: Extra Fees: Contract: Public Policy. One appointed court stenographer, though for a single case only, by the judge, under Sess. Laws 1899, pp. 111, 112, c. 72, is in the discharge of his duties a public officer, so that the contract of the parties to pay him more than provided by the statute for transcribing the testimony is void, as against public policy.1 (Decided March 10, 1905.) Appeal from the Third District Court, Salt Lake Action to recover a certain sum alleged to be due for services rendered in reporting and transcribing the proceedings upon the trial of an action. From a judgment in favor of the plaintiff, the defendants appealed. REVERSED. 1 Haddock v. Salt Lake City, 23 Utah, 521. 248 |