a party who has a cause of action in the place of a party who never had any.

Dubbers v. Goux, 51 Cal. 153, is a case where it was undertaken to substitute the name of Wilhelmina Dubbers, the wife, in place of Henry Dubbers, the husband, who had originally sued. The amendment was permitted in the lower court, and the defendant appealed. The court, in passing upon the question, said:

"The court erred in permitting Mrs. Dubbers to be substituted for her husband as plaintiff. It is not pretended that she had succeeded to any interest held by her husband pending the action, nor that she had any joint interest with him in the subject-matter. On the contrary, she was substituted as plaintiff on the theory that she was the only party in interest at the commencement of the action, and had ever since continued to be so. She was permitted to become the sole plaintiff, not to prosecute the same cause of action stated in the complaint, on the ground that she had succeeded to it, but another and distinct cause of action in her separate right. In effect it was permitting her to prosecute a new suit for another cause of action by merely substituting her as sole plaintiff in the former action. It is scarcely necessary to say section 473 of the Code of Civil Procedure affords no warrant for such a proceeding."

Another case to the same effect is that of Denver & Rio Grande Railway Co. v. Loveland et al., decided by the Court of Appeals of Colorado on March 11, 1901 (64 Pac. 381). In Colorado there were the two corporations, the Denver & Rio Grande Railway Company and the Denver & Rio Grande Railroad Company. Suit was brought against the former, and upon examination of a witness it developed that the injury and wrong complained of had been committed by the latter. Plaintiff asked leave to amend, substituting the Denver & Rio Grande Railroad Company instead of the Denver & Rio Grande Railway Company. It was insisted by the plaintiff that the substitution of this latter defendant for the other was simply an amendment to the complaint, correcting the name of the defendant, as authorized by section 75, Colorado Code; the term "railway company"

being a misnomer or incorrect designation of "railroad company." Says the court:

"If the case was as counsel puts it, the substitution of one name for the other would be an amendment, and a very proper amendment. If the right party is sued by a wrong name, and service of process is had upon him, the true name may be substituted for the other by way of amendment; but if a person is sued and brought into court, there can be no legal substitution of another for him, and a substitution, if made, would not be an amendment. In this case there is no misnomer. The Denver & Rio Grande Railway was a corporation capable of suing and being sued. An action was brought against it by its own proper name. According to the records service was had upon it, and according to the records service was not had upon the other corporation. The railway company appeared and answered, and there was no appearance for the railroad company. Each corporation was a legal entity, as distinct from the other as John Doe from Richard Roe. A suit against one was a matter of no concern to the other, and could not, without the other's consent, be converted into a suit against it."

There may be a Willamette Tent & Awning Company, a corporation. If so, it could sue and be sued in its corporate name. A plaintiff is supposed to know his own name, and when he brings a suit to sue in his own name. In this case the real party in interest is Henry Wemme, and Wemme must sue in order to recover in a cause of action

against the defendant. He might sue as Henry Wemme, doing business as the Willamette Tent & Awning Company, but the suit, in whatever name he may have done business, should be by Henry Wemme.

It would seem from what appears in this case that Henry Wemme should have been the party plaintiff in the first instance, he being the person who has a cause of action against the defendant if any exists in this case. Can it be said that when a suit is brought in the name of the Willamette Tent & Awning Company, a corporation, and defendants are advised that they have never had dealings with such a party, and therefore are prepared to defend on that

ground, that we may substitute for such corporation an entirely new plaintiff, one never in any manner indicated either by the title of plaintiff in the original complaint or in the body of the complaint, on the theory that such substitution is an amendment in the name of the original party plaintiff? Would such a proceeding be in "furtherance of justice"? I cannot so regard it. It seems to me that the new party plaintiff as stated in the amended complaint now offered in no wise grows out of or results from the party plaintiff as stated in the original complaint; nor can it be construed as a mistake in the name of the original party plaintiff. It is clearly the substitution of an entirely new plaintiff, and is such an amendment as cannot be invoked in the name of justice.

The application of plaintiff to file amended complaint as now presented is therefore denied.

SEITTN v. ALASKA TREADWELL GOLD M. CO.

(First Division. Juneau. February 6, 1903.)

No. 178A.

1. MASTER AND SERVANT-NEGLIGENCE-RULES REQUIRING SERVANT TO EXAMINE PLACE OF WORKING.

Where the operator of quartz mines gave notice to the employés of the adoption of additional and printed rules requiring the servant to inspect the particular place where he worked in advance, and ascertain that he was secure therein, held that, while such rules imposed a duty upon the servant, they did not relieve the master from his duty of furnishing a reasonably safe place for the servant to work.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 235-240, 714.]

2. SAME-RULES FOR GUIDANCE OF SERVANT.

Whether rules adopted by the master imposing the duty upon the servant to examine the conditions surrounding his work and

to maintain himself in security binds the servant and frees the master from responsibility will depend upon the character of the service and the opportunity of the servant to examine; such rules will not invariably excuse the master from responsibility. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 235-240, 714.]

3. SAME.

A rule that requires the employé to make a personal inspection as to the safety of the place where he is performing or is to perform his work, in order to relieve the master of any duty in that behalf, must be reasonable per se; must refer to conditions surrounding the service in which the servant is employed; must refer to the place where the servant is employed as affecting the safety thereof; and must be understood as referring to the dangers that are obvious, and are or would become readily discoverable upon inspection of the place and its surrounding conditions by a person of ordinary understanding and competence for the service in which employed.

4. SAME CONTRIBUTORY NEGLIGENCE-PLACE FOR Work.

Where the danger is patent, and is known alike to the master and servant, and the servant chooses to go into the place of danger without taking any precautions for his safety, the servant under such circumstances, and particularly where the rules of the corporation require him to exercise care in the method of doing his work, is guilty of contributory negligence; and where the proof is clear of such lack of care on the part of the servant, he cannot recover damages.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 733, 757.]

5. MASTER AND Servant-NEGLIGENCE-Due Care.

The master never warrants the servant's safety and never guaranties the safety of the place. He discharges his duty by observing due care in his behalf. The servant may not by indifference and want of care bring misfortune upon himself, and then charge the master with negligence when disaster comes to him, but he must be alert and observant of conditions around him; and particularly is this true where the rules of the master, in addition to the duties the law imposes, requires him to make inspection for his own protection.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 171-175, 209.]

6. NEGLIGENCE-TRIAL-QUESTION FOR JURY-CONTRIBUTORY NEG

LIGENCE.

It is generally held that contributory negligence is a question for the jury, and is one that should never be taken from a jury unless the case is so clear that in case of a verdict against the defendant it could not be sustained by the court.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 279-286.]

On Motion to Instruct the Jury for Defendant.

The plaintiff in this case alleges, in brief, as follows: That on the 25th day of March, 1902, he was the servant of the defendant corporation, and as such employed in operating what is called a "machine drill," which machine drill was situated in what is called the "Glory Hole" in the Alaska Treadwell Company's mine, the said Glory Hole being a pit or quarry excavated to a considerable depth, and an unusually unsafe and dangerous place to work, and being rendered more so by reason of a slide a short time previous to the plaintiff's injury, which was well known or ought to have been known by the defendant, and was unknown to the plaintiff; that on said day, in operating said machine drill in said Glory Hole, by reason of the unlawful carelessness and negligent conduct of the defendant, the plaintiff was severely and permanently injured and disfigured, as in said complaint set forth; that the defendant, knowing said Glory Hole to be a dangerous and unsafe place to work, and that the same was in a dangerous condition by reason of said slide, which left the walls immediately above and over the place where the plaintiff was working in a loose, broken, and shaken up condition and liable to give way, which the defendant had carelessly permitted to so remain, and of which the plaintiff had no knowledge, and did direct and cause said plaintiff to go in said Glory Hole and set up and operate said machine drill, and while oper