ror.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1010-1050; Dec. Dig. § 286.*]

3. MASTER AND SERVANT (§ 206*)-INJURIES TO SERVANT-ASSUMPTION OF RISK.

Under the law it is the duty of the master to provide the servant with a reasonably safe place at which to work, and with reasonably safe machinery, tools, and implements with which to work, and when the master has discharged such duty, and the employment is accepted by the servant, then the servant assumes all the risks and hazards incident to or attendant upon the particular employment or the performance of such labor.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 550; Dec. Dig. § 206.*] 4. MASTER AND SERVANT (§ 286*)-INJURIES TO SERVANT - ACTIONS QUESTIONS FOR JURY. This duty being thus imposed upon the master, the question whether the master was negligent is for the jury to determine, where there is a conflict in the evidence, and, when the jury by their verdict determine that the master was negligent, such verdict will not be set aside for want of evidence to support the

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2220-2233; Dec. Dig. § 4742:* Appeal and Error, Dec. Dig. § 1050.*] 8. TRIAL (§ 296*)-INSTRUCTIONS-CONSTRU

ING INSTRUCTIONS TOGETHER.

Instructions in this case examined, and, when taken together and as an entire statement of the law governing the particular facts of the case, they show that the court was not in error, although some of the instructions do not state the law as fully as might have been given on the particular subject attempted to be embraced in each instruction.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 705-713; Dec. Dig. § 296.*]

(Additional Syllabus by Editorial Staff.) 9. MASTER AND SERVANT (§ 295*)-INJURIES TO SERVANT-INSTRUCTIONS.

In an action for injuries to a servant, instructions that if the master fails to use proper care, and an injury results, it is not a risk incident to the employment which is assumed by the servant, unless the danger was open and apparent, or the servant had actual knowledge thereof, and that the plaintiff had a right to assume and rely on the presumption that the defendant had used reasonable care, and that plaintiff was not required to search or inspect the place for defects therein that were not obvious or apparent, were not erroneous, where the court also instructed that, while a servant assumes the ordinary risks of the employment, he does not assume those occasioned by the negligence of the master, unless they were

Where contributory negligence is pleaded as a defense, it is not necessary for the plaintiff to prove the negative of contributory neg: ligence as a part of the cause of action, and the defendant is required to prove by a preponderance of the evidence that the plaintiff was guilty of contributory negligence; and the plaintiff may also introduce evidence contradicting such proof of the defendant, and the jury determines, from the preponderance of the evidence upon the particular question, whether the plaintiff was in fact guilty of contributory negligence.

[Ed. Note. For other cases, see Negligence, Cent. Dig. § 224; Dec. Dig. § 122.*]

6. MASTER AND SERVANT (§ 217*)—INJURIES TO SERVANT-ASSUMPTION OF RISK.

A servant in accepting employment assumes the ordinary risks incident to such employment; but the servant does not assume such risks as arise out of the negligence of the master, unless such risks are known to the servant, or are of such character that by the exercise of ordinary care upon the part of the servant he could have known the same.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.*]

7. EVIDENCE (8 4742*)-APPEAL AND ERROR (1050*)-OPINION EVIDENCE-HARMLESS

ERROR.

Opinions of ordinary witnesses may be given upon matters of which they have personal knowledge in all cases in which, from the very nature of the subject, the facts disconnected from such opinions cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge; and where opinions are asked of expert witnesses on a matter of common knowledge, and such opinions are given, and it does not appear that the parties against whom such evidence

care he could have known them.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. § 295.*]

10. MASTER AND SERVANT (§ 296*)-INJURIES

TO SERVANT-INSTRUCTIONS-CONTRIBUTORY

NEGLIGENCE.

An instruction, following the language of Rev. Codes, 8 4221, that it is not necessary for the plaintiff to either plead or prove the negative of contributory negligence, is not erroneous, especially where the court otherwise properly instructed as to the rulings concerning contributory negligence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*]

Appeal from District Court, Bonner County; Robt. N. Dunn, Judge.

Action by Ezra Knauf against the Dover Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

A. G. Avery and G. H. Martin, for appellant. Herman H. Taylor, for respondent.

STEWART, C. J. This is an action to recover damages for personal injuries alleged to have been sustained by the respondent at a sawmill owned by the appellant. The cause was tried, and a verdict rendered in favor of the respondent for the sum of $1,950. This appeal is taken from the order overruling a motion for a new trial.

[1] The first question presented on this appeal is the ruling of the trial court upon the appellant's motion for a nonsuit at the close of the plaintiff's evidence. After the motion

[2] The evidence shows that the plaintiff was employed by the defendant on Friday, July 31, 1908, and went to work on the outside of the mill, and on Sunday, the 2d day of August, was told to go to work the following morning on the slasher inside. The plaintiff commenced work on the slasher as directed about 7 o'clock Monday morning, and was injured about 9 o'clock after working about two hours. He describes the slasher and the place where he was working and the accident as follows: "The slasher is a pretty well known sort of contrivance commonly used in sawmills. Its purpose is to cut up the long slabs and lath stock into four-foot lengths for lath. It takes four-foot lengths for laths. I think most slabs are four-foot slabs. That is the usual length of those I have seen. The mill at Tower, Minn., was a one-band mill. The last work I did was offbearing from the band saw, tail saw; offbearing-tail saw. I worked in the slasher something over a day or two. I saw it work while I was working in that mill. I was not working near it. I saw it at a distance of about 30 or 40 feet every day. I very seldom went nearer to it than that. While I was tail sawing, I would pass by it once in a while; probably twice during the day. There might have been days when I went by there three times. I might have been through there more than twice, but on an average of two or three times a day I judge. I don't remember how many saws were in that slasher, nor how many chains there were on it. There were chains all the way across on that incline the same as here. There was not any flat surface at all; it was all incline. The next season I worked at the sawmill I worked on the boom. That was about seven years ago. It was about the year 1904 that I worked at the first sawmill. That was at Tower, Minn. * I began work July 31st at 3 o'clock in the afternoon. That was Friday. I worked all that day feeding logs on this endless chain. No one told me how to feed the endless chain with logs. The man who hired me did not tell me how and didn't ask me if I knew. I worked there on Saturday. On Sunday night Mr. Garripy

There is

don't remember particularly taking a look at the slasher. I say I was taking a glimpse of the mill. That is the only time I got into the mill after I began to work there. I commenced work at 7 o'clock Monday morning. A man showed me how to oil the slasher. McDonald went with me to the slasher. He is not here. No one else said anything to me about it. The accident happened about 8 or 9 o'clock; close to 9 o'clock, I think. I think I only worked about two hours. Maybe it was pretty nearly three hours. It was close on to that. Some one went in and told me how to oil up. The saws were not going when I went in. The mill started up and started the saws. a lever there to throw the slasher on. McDonald told me how. He showed me how to start up the slasher. There is about a three-foot space running crosswise along the side of the dead rolls, and from there there is an apron commences and runs up a slant to the saws. I think there were five long chains running across this place where I walked backward and forward. There were about 14 on the incline. The long chains came out from the dead rolls. There was a place to step up on the platform at one end, and the lever to start and stop was over there. You could not reach it. You used the lever to start and stop the slasher when you have got to stop or start it. When the stuff clogs up, you stop the slasher to straighten things up. A lot of slats and slabs get down there and get piled up too high and block up the rollers. When there is a confusion and it gets clogged up, I stop the slasher and straighten the stuff up with the picaroon. I don't stop the slasher unless I cannot handle it otherwise. Those chains don't run so very fast. They run quite slow. The endless chains on the flat platform don't go up the incline. They go through the floor. I have noticed how these chains operate since I got hurt. I didn't know, and I didn't notice, that they went through the floor while I was working there. I didn't take notice of the fact that the endless chains went through the floor. I suppose I knew it. I didn't see the chain go' through the floor before I got hurt. I knew that the chains working up the incline came out of the floor. I did know that the incline chains or short chains came out of the floor, but didn't know the long chains went into the floor. I might have known it, but I didn't stop to think about it or look up anything about it. I was too occupied and too busy. I think the slasher is a pretty dangerous place to work. I was straightening out the boards. I didn't have any time to think or look things over to see where the long chains did go. The picture you show me is a picture of the slasher on which I was injured, except that I see some things miss

case that stuck out about 18 inches where he had to go around. Other than that, the picture is a representation of the slasher where I was hurt. * * The incline chains came up out of the floor. I went down there and looked at it, and I know they came out of the floor. I guess I knew that before I was hurt. They must have come out there. * I didn't stand on the chains. I stood between them. I kept off them as much as possible. I had to get out between the chains, but I didn't get onto the chains at all. I certainly aimed to keep off the chains. If I stood on the chains, and stayed there long, I would go through the saws. Outside of the saws, the only danger was from getting on the chains. I said I was looking out for the chains so as not to fall down upon them. I tried to keep off them. I would not step on top of them. I guess I knew that stepping on them was a dangerous thing. I didn't think any thing about whether the long chains went through the saws. It would not be dangerous to step on the chains if you stepped off again. When I got hurt, I was in front of them dead rolls stepping backward, and I stepped in that As I stepped back, I stepped into that hole with my toe. I didn't step on the chain before it went into the hole. stepped into the hole in the first instance. I don't think I saw those other holes. I was

hole.

* *

I

walking backward and forward on this flat space as shown in the picture. I stepped over the chains. I could see the chains mov

ing; I didn't notice to see whether they went through the floor. No, sir; I didn't pay any attention to that-I was too busy. If I knew what dangers there were, I looked out for what I knew of. As to whether I knew the

chains were going through the floor, it didn't

enter my head at all. No, sir; I couldn't see all of those just as we can see it now, because there was a whole lot of stuff down there when I started to work, slabs and stuff, over these holes, mostly covered up. After a few revolutions, there were some more coming; I had to walk backward and forwards in there. If my attention was drawn to it, I would have seen where those chains go through the floor. That picture would look pretty much like the slasher if you had covered it up with slabs and dirt, as it most generally is; a lot of slabs on there, bark, dirt. I walked through there. I could step over the pieces. I had to go down there and straighten things up. I don't think I could see every one of those holes, because they were covered up more or less. If there was a hole open, I could see it unless I was looking some place else. I didn't see any hole. I think it was longer than eight weeks when I went back to measure those holes.

was there. No, sir; I didn't intend to step on the chain instead of the hole. I was stepping back. I didn't know the hole was there. I knew the chain was back of me."

There is evidence in the record which shows that the hole into which the plaintiff stepped and where the accident occurred was larger than required for the chain to pass through, and the photograph of the slasher introduced in evidence clearly shows that the hole is larger than the other holes through which the other chains used pass. It is further shown by the evidence that this hole where the accident occurred is in plain view and open and can easily be seen and detected by any one passing over or about where the same is, when there are no slabs or lumber upon the chains, and that a man walking back and forth attending the slasher would have a chance and would be forced to observe the hole in question through which the chain went and where the accident occurred. The chief danger, apparently of an accident, by stepping into the hole, would result from the fact that in operating the slasher the operator may not always be facing the hole. In other words, while attending to his duties, he may be walking backward and into the hole without seeing it. The evidence also shows that the size of the hole might have been reduced operation of the chains passing through it, without interfering in any way with the

and the floor around the hole might have

been built closer to the chain, or might have have prevented one from stepping into the been covered over with steel, and thereby

hole.

From this evidence the jury was required to determine whether or not the appellant was guilty of negligence in not providing a safe place for the respondent to work, and in permitting the slasher to be used in the condition in which the evidence in this case shows it to have been. It is a well-recognized principle of law that it is the duty of the master to furnish the servant with a reasonably safe place in which to work, and in default he is guilty of negligence. What is a reasonably safe place, where there is a conflict in the evidence, is a question to be considered and determined by the jury where there is a jury trial. In this case it was the duty of the appellant to make the place where the respondent was ordered to work reasonably safe for such employment, and if the appellant permitted the hole to be of such size that it was dangerous for one working around it, and an accident occurred without any fault or negligence of the respondent, then the appellant would be lia

I didn't intend to step on the chain. Probably I was trying to avoid the chain when I stepped back; I don't know. I stepped in the hole, I didn't step on the chain. I didn't know the hole was there. I knew the chain

In the case of Maloney v. Winston Brothers Co., 18 Idaho, 740, 111 Pac. 1080, this court said: "It is contended by the appellant that plaintiff undertook an extra hazardous task, and that the ordinary risks of

such a service were consequently assumed by him. This position is correct to the extent that he assumed the risk incident to the employment, but he did not assume any additional burden of risk superimposed by reason of the master's neglect of the duty that rested upon him to have the place inspected and maintained in a reasonably safe condition as a place of the kind in which the employé might work."

In the case of Craesafulli v. Winston Brothers Co., 18 Idaho, 158, 108 Pac. 740, this court said: "It is contended that the fellow-servant doctrine, assumption of risk, and contributory negligence rules apply to the facts of this case. We cannot agree with counsel in that contention, as it is clear to us that the rules applicable to the doctrines mentioned are not applicable to the facts of this case. Under those facts, it was the duty of the master to see that said staging was made safe for the purposes for which it was erected."

In the case of Crawford v. Bonners Ferry Lumber Co., 12 Idaho, 678, 87 Pac. 998, in discussing the relation of master and servant, this court said: "There is a wide range in the decisions of appellate courts on the relation of master and servant, and under what circumstances and conditions the master is responsible for personal injuries to the servant. It would seem that justice and equity would require the master to use all reasonable means to protect the servant from injury while in his employ; any other rule would be harsh, unjust, and unreasonable."

In the case of Baltimore & O. R. Co. v.

Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772, the Supreme Court of the United States enters into a very exhaustive discussion of this subject and reviews a large number of authorities, and has announced the rule which is generally followed in the courts of this country. The court says: “Again, a master employing a servant impliedly engages with him that the place in which he is to work and the tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and the machinery, and when he employs one to enter into his service he impliedly says to him that there is no other danger in the place, the tools, and the machinery, than such as is obvious and necessary. Of course, some places of work and some kinds of machinery are more dangerous than others; but that is something which inheres in the thing itself, which is a matter of necessity, and cannot be obviated. But within such limits the master who provides the place, the tools, and the machinery owes a positive duty to his employé in respect thereto. That positive duty does not go to the extent of a guaranty of safety; but it does require that reasonable precautions be taken to secure safety, and

it matters not to the employé by whom that safety is secured, or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty." Doyle v. Missouri, K. & T. Trust Co., 140 Mo. 1, 41 S. W. 255.

[3] Under the law it was the duty of the appellant company to provide the respondent with a reasonably safe place at which to work, and with reasonably safe machinery, tools, and implements with which to work, and if the appellant discharged such duties, and the employment was accepted by the respondent, then the respondent assumed all the risks and hazards incident to or attendant upon the particular employment or the performance of the particular work.

[4] This duty being thus imposed upon the appellant, the question whether the appellant was negligent was for the jury to determine, where there is a conflict in the evidence, and, the jury having concluded by their verdict that the appellant was negligent, this court will not reverse such judgment on the ground that the evidence does not support the verdict.

[5] Still, admitting that the appellant was negligent, we must also determine whether the respondent was negligent and whether the respondent's negligence contributed to the injury. As shown by the respondent's testimony, he had had some experience in He had not done any operating slashers. labor upon the slasher where the accident occurred, but he had some knowledge of how slashers were operated and how they were constructed. The particular place where the respondent was working when injured was not familiar to him, and its condition was not explained to him, and he was not in any way advised of the fact that the place where the injury occurred was more dangerous than ordinarily would be found at a similar

place, neither was he cautioned or advised When he went to work on the morning of of the dangerous condition of the place. the accident, the place about where the accident happened was covered over with slabs and slats and dirt and wood which had been placed there the night before, and the hole where the accident occurred was not visible or observable to him and could not be seen. Whether these obstructions were afterward removed by being carried by the chains up to the saws, and the hole was thus opened to his view and could be seen by him at the time of the accident, there seems to be a conflict in the evidence, the respondent having testified positively that the place was not observable, while other witnesses who were acquainted with the situation, although not present, testified that the place must necessarily have been observable to him by his passing about it, and that he would have been able to see the place had he looked and used his senses at the time the accident occurred. This being the condition of the evidence, we think there was sufficient conflict to require