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said last-mentioned labor and insisted that he do so, and plaintiff proceeded to haul said laths as directed by defendant as aforesaid.

(6) That it was, then and there, and at all times, the duty of the defendant to furnish, keep, and maintain a safe, sufficient, and suitable place for plaintiff to work in and at, and to provide, keep, and maintain sufficient, suitable, and ,

safe appliances, means, implements, and vehicles with which to perform said labor, and to provide, keep, and maintain sufficient, suitable, and safe roads over which to haul said laths, but that, disregarding its duty in the premises, and in this respect, it knowingly, carelessly, and negligently caused said carrier and box to be so constructed that they were too low to safely drive under with said dump cart loaded with laths, and said dump cart was too high to safely drive under said carrier and box, and the only road from said south end of said sawmill to said dry yard, over, along, and upon which plaintiff had to, or could, naul said laths, led and ran under said carrier and box and was rendered dangerous and unsafe by reason of said carrier and box being too low and said dump carts too high, and that said carrier, box, dump cart and road. by reason of the facts above stated, were dangerous and unsafe for plaintiff to work in and about in hauling said laths, and defendant at all of the times herein mentioned, knowingly, carelessly, and negligently kept and maintained them in such unsafe and dangerous condition, and knew of their dangerous and unsafe condition, and knew that it was unsafe and dangerous for plaintiff to haul said laths with said dump cart, but that plaintiff had no knowledge or information of the dangerous or unsafe condition of said carrier, box, dump cart, or road, and did not know that said work was dangerous or unsafe, or that the said tailboard was too heavy and said dump cart too high for one man to, swing over and across said dump cart, which had to be done before said dump cart could be loaded with laths, all of which facts were well known to defendant, and said facts were not known to plaintiff, and could not be known or determined by plaintiff from any inspection which plaintiff was permitted to make, or was able to make, before or at the time of performing his duties, in the performance of which he was injured; that said dump cart was not a fit, suitable, or safe vehicle with which to haul laths, and was not constructed for that purpose; that it was difficult for one man to load with laths and was too high and difficult for one man to manage, handle, and control when loaded with laths, all of which facts were well known to defendant and unknown to plaintiff ; that plaintiff had never used a dump cart of that sort before said day, as defendant well knew, and could not detect or know the element of danger resulting, or that might result, from such conditions as aforesaid, which was a latent and

not an obvious danger; that upon a careful inspection of said road, carrier, box, and dump cart by plaintiff they and each of them appeared to be safe and suitable for said Work.

(7) That on the day last aforesaid, and while plaintiff was hauling said latlıs as directed and required by defendant as aforesaid, without any assistance, and after said tailboard had been swung over and across the hind end of said bed or box of said dump cart, and while plaintiff was ignorant of the dangerous and unsafe condition of said carrier, box, dump cart, and road, and while they appeared to plaintiff to be safe and suitable for said work, and he was ignorant of the dangerous character of said work, in hauling a load of laths from the south end of said sawmill over and along said road and under said carrier box to said dry yard, and while plaintiff was sitting upon the seat of said dump cart, which was in front of and lower than the bed or box of said dump cart, driving the team of horses hitched to said cart, and while he was exercising due care and caution, without any fault of plaintiff, the hind end of said dump cart struck against the timbers and ceiling of said box over said driveway thereunder, and caused the forepart of said dump cart to be suddenly and with great force and violence raised and thrown up to and against said ceiling and timbers, by reason of which plaintiff was with great force and violence caught and held between and against said dump cart and ceiling and timbers, whereby his nose and back were broken and his breast bone crushed and mangled, and plaintiff was thereby otherwise greatly shocked, injured, bruised, and wounded without any fault or negligence on his part.

(8) That in consequence of the injuries received by the plaintiff, as aforesaid, he has become and is paralyzed in his stomach, bowels, and lower limbs, and became and is permanently lamed, crippled, and diseased, and has suffered and still suffers great mental pain and anguish and great bodily pain.

“(9) That at the time he received the injuries complained of plaintiff was a strong, able-bodied man, and could earn and was earning $15 and his board per month, and that on account of said injuries his earning capacity has been entirely destroyed.

“(10) That by reason of the injuries sustained by plaintiff as aforesaid, he has been and is damaged in the sum of $2,000."

The demurrer is as follows: "(1) The amended complaint does not state facts sufficient to constitute a cause of action. (2) The amended complaint is ambiguous, unintelligible, and uncertain.”

Only two errors are assigned: “(1) The court erred in sustaining respondent's demurrer to the amended complaint. (2) The court erred in rendering and entering judgment dismissing appellant's action and awarding costs to respondent." Appellant cites a long

list of authorities in support of his conten- a place provided by the master, where dis tion that the demurrer should have been covery of a defect is difficult, he has a right overruled. Respondent, also, provides us to assume, in the absence of any circumstanwith a number of authorities contending that ces creating a doubt in his mind, that his they support the action of the trial court, and safety has been provided for.” Thompson on that there was no error in sustaining the Negligence, $ 4017; Drake v. San Antonio demurrer and entering judgment for costs. & A. P. Ry. Co. (Tex. Sup.) 89 S. W. 407. There is a wide range in the decisions of ap- A Texas case is very interesting and inpellate courts on the relation of master and structive on the duty of the master to the servant, and under what circumstances and

servant. Section 349 of Wood on Master & conditions the master is responsible for per- Servant says: “When the servant has equal sonal injuries to the servant. It would seem

knowledge with the master of the danger inthat justice and equity would require the cident to the work, he takes the risk upou master to use all reasonable means to pro- himself if he goes on with it, but this only tect the servant from injury while in his em

applies where the servant is of sufficient ploy. Any other rule would be harsh, unjust,

discretion to appreciate the dangers incident and unreasonable. If it is true, as alleged to the work. Where there are latent dein the complaint, that appellant had been fects or hazards incident to an occupation engaged in other work for respondent for a of which the master knows or ought to know, year prior to the accident, and on the day

it is his duty to warn the servant of them of the accident had been required by the mas

fully, and, failing to do so, he is liable to ter to perform labor with which he was not

him for any injury that he may sustain in familiar; that in the performance of such

consequence of such neglect; and this rule labor he was injured as alleged; that he had

applies even when the danger or hazard is carefully inspected the situation id no dan

patent, if, through inexperience or other ger was apparent; that he took the team and

cause, the servant is incompetent to fully dump cart furnished him by respondent, load

understand and appreciate the nature and ed the laths as directed, and followed the

extent of the hazard." Mr. Beach on Cononly road furnished for him and met with

tributory Negligence, $ 156, says: "Upon the accident as alleged; that no warning turning to the decisions, we shall find that had been given him by respondent or any one

the decided weight of authority is in favor of acting for it of the danger in passing under the rule that the burden is upon the plaintiff the carrier with the dump cart loaded with

in these actions to show his own freedom laths--it would seem to us that appellant

from contributory negligence,” and cites in was not guilty of contributory negligence, support of this text Massachusetts, Maine, and that respondent should be required to Mississippi, Louisiana, North Carolina, Michrespond in damages for his injury. When

igan, Oregon, Illinois, Connecticut, Iowa, and appellant was furnished the team and dump Indiana, and further says that “this rule has cart and directed to haul the laths to the

not in general found favor with the textdry house, and there was but one road over writers and the theorists and critics. It is which he could travel, he had a right to as- submitted that, if there is to be any flexible sume that the cart loaded with laths would

rule, this is the one which will most often safely pass under the carrier, especially when

subserve the ends of substantial justice." it was his first day in the new field of labor Then, at section 157, the author says: "In assigned him. We are not without authority many jurisdictions it is the rule that conin this conclusion: Wiest v. Coal Creek Ry. tributory negligence is matter of defense, and Co. (Wash.) 84 Pac. 725. In Christ v. Wich- that the burden of establishing it is upon the ita Gas, Electric Light & Power Co. (Kan.) defendant. Where this rule obtains, the 83 Pac. 199, Mr. Justice Smith of the Kansas plaintiff has made his case when he has Supreme Court, discussing a personal damage shown injury to himself, and negligence on case, says: "The rule requiring a master to

the part of the defendant which was a proxifurnish his servant a reasonably safe place mate cause of it. It then devolves upon the deto work has no iron-bound limitations as to fendant to allege and prove contributory neg. whether the place be a permanent or a tem- ligence as matter of defense; the presumption porary one. If the master sends a servant being in favor of the plaintiff, that he was at to work in a place of danger, however tem- the time of the accident in the exercise of due porary, and the danger arises from acts care, and that the injury was caused wholly or omissions of other servants, against which by the defendant's negligent misconduct. This the servant has no means of protecting hini- is the doctrine of the Supreme Court of the self, it is the duty of the master to provide

United States, and it is the rule in Alabama, such warnings or to take such other steps as California, Georgia, Kentucky, Kansas, Marymay be reasonably necessary to safeguard the land, Minnesota, Missouri, New Hampshire, servant so employed.

*" In Clark v.

New Jersey, Nebraska, Ohio, Pennsylvania, Wolverine Portland Cement Co. (Mich.) a Rhode Island, South Carolina, Texas, Wisrecent decision of the Supreme Court of consin, West Virginia, Vermont, and ColoMichigan, 101 N. W. 845, the rule is laid rado, as well as in England." The two sec down thus: “Where an employé is sent into tions above referred to will be found quite interesting and instructive on the subject taining a dump for the deposit of all kinds under consideration. We can see much more of waste, refuse, and decaying matter, and reason for the rule laid down in the last more especially decaying animal and vegesection and followed by most of the American table matter, which einitted offensive and courts as well as the courts of England as disagreeable odors and effluvia, which endanstated by Mr. Beach. It is only fair to as- ger the health and comfort of plaintiff and sume that the master knows or should know his family, and that the same depreciated the the condition of his property and of any dan- value of his property and rendered his prem

ises unsafe for habitation. The substance of ger that may be lurking in the construction or operation of any part of it to his sery- the complaint amounted to charging the muants; hence his duty to repair the evil, nicipality with maintaining both a public or warn his employés of the possible danger and private nuisance, which is especially into them.

jurious to the plaintiff. The plaintiff filed Many other authorities are cited by ap.

affidavits in support of the allegations of the pellant and a number by respondent, but a complaint, and thereupon obtained from the careful inspection of all of them convinces district judge an order requiring the defendus that the demurrer in this case should ant to show cause at a time and place specihave been overruled and the defendant re- fied why a temporary injunction should not quired to plead by way of answer to the com- be granted against the defendants maintainplaint.

ing the dump and continuing to cause and The judgment is reversed and remanded

permit waste, decaying, and refuse matter to to the lower court, with instructions to over

be deposited thereon. On the return day the rule the demurrer and give defendant reason

defendants demurred to the complaint and able time to answer the complaint if it so

filed the affidavits of the village trustees, in

which they deposed, in effect, that they had desire. Costs to appellant.

never intended to permi. any vegetable or AILSHIE and SULLIVAN, JJ., concur.

animal matter to be deposited on the dump grounds, but it was their intention at all

times to only allow tin cans, ashes, and such (12 Idaho, 708)

other waste and refuse to be deposited at SHRECK v. VILLAGE OF COEUR this dumpyard as would not emit or give off D'ALENE.

any offensive odors. It was also shown by (Supreme Court of Idaho. Dec. 3, 1906.) these affidavits that they had not been in1. MUNICIPAL CORPORATION - TORTS -- NUI

formed that the dump grounds were being SANCE -- ABATEMENT - TEMPORARY INJUNC- used for purposes other than that originally TION.

intended by them until a very short time Where the plaintiff shows by his complaint prior to the commencement of this action; and affidavits that the defendant municipality is maintaining a nuisance specially injurious to

that immediately upon learning of the condithe complainant, and the defendant does not tion the board of trustees passed a resolution deny the existence of the nuisance, but al

prohibiting the dumping of any animal or leges that it has taken steps to abate the same, and that it means and intends to prevent any

vegetable matter on these grounds, and inrepetition or recurrence of the matters charged

structing their officers to enforce the proas constituting the nuisance, and affidavits are visions of the resolution; that they also produced showing that conditions have not been

caused the marshal to post notices on the materially changed, and that the cause of com

grounds informing the public that all persons plaint still exists, a temporary injunction ought to issue, and it is error to refuse such relief. were prohibited from dumping any waste

[Ed. Note.-For cases in point, see Cent. Dig. matter there that would give off offensive vol. 36, Municipal Corporations, $ 1552.] odors. The trustees also disclaim any pur2. SAME-EVIDENCE.

pose or intent on the part of themselves or Showing made in this cause examined, and

the municipality represented by them to held sufficient to entitle plaintiff to an injunc

maintain any nuisance upon their premise, tion pendente lite. (Syllabus by the Court.)

and also assert their purpose to prevent any

nuisance thereon in the future. The plainAppeal from District Court, Kootenai Coun

tiff filed a counter affidavit signed by three ty; Ralph T. Morgan, Judge.

of the citizens who lived and resided near Action by John Shreck against the village

him and in the neighborhood of the dump of Caur d'Alene. Application for temporary

grounds, in which they stated they had visitinjunction, and plaintiff appeals. Reversed.

ed the premises in dispute and that the nuiEdward La Veine, for appellant. Earl sance was still being maintained, and that deSanders, for respondent.

caying and decomposed matter was being

deposited there still. The district judge, aftAILSHIE, J. This is an appeal from an er hearing the matter, took it under adviseorder denying a temporary injunction. The ment, and thereafter made and filed his orplaintiff filed his complaint on the 9th day der denying the injunction. Plaintiff has of April, 1906, charging that the defendant, appealed from the order. the village of Cour d'Alene, was the owner We think the showing made by the respecof a tract of land within the vicinity of tive parties in this case clearly entitled the plaintiff's premises on which it was main- plaintiff to a temporary injunction until such time as the case could be heard in full on session of the administrator appointed by that both sides. The defendant municipality has court for the purposes of administration. practically admitted at all times that this [Ed. Note.--For cases in point, see Cent. Dig.

vol. 22, Executors and Administrators, 88 533, dumpyard in the condition in which it was

629.] kept amounted to a nuisance, but they seem

2. SAME-SALE OF PROPERTY-CONFIRMATION to have attempted to justify the action of the

-APPEAL. municipal officers on the grounds that they As the title to the property of the inteswere not apprised of the condition until a tate in such cases passes to the heirs subject short time prior to the commencement of the

to the provisions of said section, they are in

terested parties in the sale thereof, and where a action, and that they immediately took the sale has been confirmed by the probate court necessary steps to remove the nuisance by and the purchaser appeals from such confirmaburying all the animal and vegetable matter

tion, such heirs or their guardian ad litem are

adverse parties and must be served with a notice found thereon, and that they faithfully and

of appeal. honestly attempted to prevent the dumping [Ed. Note.-For cases in point, see Cent. Dig, of any more offensive matter thereon. The vol. 22, Executors and Administrators, 88 1382, officers are undoubtedly acting in good faith

1538.] and have no intent of injuring the plaintiff, 3. SAME - ADVERSE PARTIES - GUARDIAN AD but intent to injure or do a wrongful act is


Where the guardian ad litem of minor not the test in cases of nuisance. A party

heirs has appeared in a proceeding commenced may be maintaining a nuisance or committing by the administrator to sell real estate belonga lasting and permanent injury upon the ing to his intestate, and consented to the sale, rights of another without any malicious or

and the purchaser files his objections to the

confirmation of such sale, and the same are wrongful intent toward the person injured, overruled by the court and the sale confirmed, and yet be subject to an action to restrain and the purchaser appeals from such order of him from the further commission of such

confirmation, the guardian ad litem is an adacts. Of course, if it could be clearly and

verse party thereto and must be served with

the notice of appeal. satisfactorily shown that the defendants had

4. SAME-PROCEDURE. removed the cause of the nuisance, and that Where an administrator files his petition the plaintiff was in no further danger of its and commences proceedings for the sale of repetition or recurrence, there would be no

real estate belonging to his intestate, all of

the orders made in such matter are in the one occasion for an injunction, but that fact proceeding, as such proceeding consists of all does not clearly appear in this case, and orders and things done by the court in such the plaintiff was entitled to a restraining or

matter from the filing of the petition to the

confirmation of the sale and delivery of the der as prayed for. If the municipality is act

deed. ing in good faith, as we have no doubt 'it is, 5. SAME-RIGHTS OF HEIRS. an injunction against the continuation of The heirs in such cases are pecuniarily this nuisance can work no injury upon it.

interested in all such property and are entitled In a case like this, where the plaintiff has

to their day in court in all of the proceedings

affecting the title to such property and are shown a condition which the defendant ad- adverse parties under the provisions of section mits constituted a nuisance, the discretion 4808, Rev. St. 1887. of the court should be liberally exercised in

[Ed. Note.-For cases in point, see Cent. Dig. favor of the plaintiff, and the granting of an

vol. 22, Executors and Administrators, sf 1381,

1473.] injunction pendente lite until the case can be fairly tried and fully determined upon all the

(Syllabus by the Court.) facts presented, or until such time as the de- Appeal from District Court, Idaho County; fendant can fully and clearly satisfy the

Edgar C. Steele, Judge. court that it has removed the cause and re

In the matter of the estate of Louis H. lieved the plaintiff from further risk of its Denison, deceased. From a judgment of the repetition.

district court dismissing the appeal of George The order of the district court denying a

M. Reed from an order made by the probate temporary injunction is reversed. The cause

court confirming the sale by C. B. Stewart, is remanded, with instructions to grant a

administrator, of certain real estate of the temporary injunction pendente lite. Costs

decedent and the conveyance thereof, he apawarded in favor of appellant.

peals. Motion to dismiss granted, and judg

ment affirmed. STOCKSLAGER, C. J., and SULLIVAN, W. N. Scales, for appellant. J. M. McJ., concur.

Donald, for respondent.

(12 Idaho, 699)


Under the provisions of section 5701, Rev. St. 1887, the property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the probate court, and the pog*For opinion on rehearing, see 87 Pac. 1152.

SULLIVAN, J. This is an appeal from the judgment of a district court dismissing the appeal from an order made by the probate court of Idaho county directing the confirmation of the sale of real estate and the conveyance thereof. The facts of the case are substantially as follows: The ad. ministrator of the estate of Louis H. Denison, deceased, filed his petition for the sale of certain real estate of his intestate's estate

in the probate court of said county, for the trict court, the administrator made an offer
purpose of paying the debts of said deceased, to the appellant which would cure all the ob-
and alleged in said petition that he was alsojections made by the appellant to the confir-
the guardian of the minor heirs of said de- mation of said sale. After hearing the argu-
ceased and prayed that a guardian ad litem ments of the counsel upon said motion to dis-
be appointed for said minor heirs to repre- iniss, the court sustained the motion and en-
sent their interests in said matter. Said pe- tered a judgment of dismissal, from which
tition also showed that said estate is solvent, judgment this appeal is taken. Counsel for
and that there will be a residue for distribu- respondent has filed a motion in this court
tion among the heirs after all debts and ex- to dismiss this appeal on the ground that the
penses of administering said estate are paid. guardian ad litem of said minor heirs, who
It appears that the probate court duly ap- appeared upon the hearing of the original
pointed R. F. Fulton, Esq., as guardian ad petition for the sale of the said real estate,
litem of said minor heirs to represent them had not been served with a notice of appeal
in the matter of said sale; that, upon the from the district court to this court as re-
hearing of said petition, said Fulton appear- | quired by law. That motion was based upon
ed as such guardian ad litem, and consented an afiidavit of the guardian ad litem and up-
that said real estate be sold, and thereupon on the transcript on appeal.
the probate court duly authorized said ad- The only question submitted for decision
ministrator to sell the same at private sale; on this motion is whether, in a proceeding
that thereafter, on July 11, 1905, the said ad- for the sale of real estate belonging to a de-
ministrator received a bid for said real es- cedent's estate, the guardian ad litem of the
tate from the appellant, the same being ac- minor heirs is entitled to a service of the
companied with 10 per cent. of the bid in notice of appeal from an order confirming
cash, which bid the said administrator ac- the sale of such real estate as an adverse
cepted, and thereafter, on July 31, 1905, he party. The law of succession to the estates
filed his return of said sale in the probate of certain intestates is fixed by the provisions
court of said county, and by order of said of section 5701, Rev. St. 1887, which is as fol-
court said return of sale was set down for lows: "The property both re;' and personal,
hearing on the 26th day of August, 1905. No of one who dies without disposing of it by
objection was made by said Fulton as guard- will, passes to the heirs of the intestate, sub-
ian ad litem to the confirmation of said sale. ject to the control of the Probate Court, and
But on August 26, 1905, the said appellant ap- to the possession of any administrator ap-
peared in said probate court and filed his pointed by that court for the purposes of ad-
objections to the confirmation of said sale, ministration." From the provisions of that
which were overruled by the court, and the section it will be observed that the title to
court thereupon examined said return of sale both real and personal property of one who
and the testimony of witnesses in support dies without disposing of it by will passes
thereof, and, finding that the law and all the to the heirs of the intestate, subject, however,
orders of the court had been duly complied to the control of the probate court and to the
with by said administrator in said matter, possession of any administrator appointed
and that said sale and all things connected by that court for the purposes of administra-
therewith had been fairly and legally con- tion. That being true, the question arises,
ducted and done, the same was confirmed. would the minor heirs in the case at bar be
From said order of confirmation the appel- affected by a modification or reversal of the
lant appealed to the district court of Idaho order or judgment appealed from? If they
county, but did not serve the said guardian

would they are adverse parties under the proad litem with any notice of appeal. When

visions of section 4808, Rev. St. 1887, as held the matter came on for hearing in the district | by this court in Aulbach v. Dahler, 4 Idaho, .court the administrator moved to dismiss the 654, 43 Pac, 322. And in Titiman v. Alamappeal on the grounds following, to wit: (1) ance Mining Co., 9 Idaho, 2440, 74 Pac. 529, That said guardian ad litem had appeared this court passed upon the question under on the hearing of the petition for the sale of

consideration and there cited numerous desaid real estate and consented thereto, and

cisions from California and this court bearthat he was not served with said notice of ing upon this question. It is shown by the appeal from the probate court to the district record that the personal property belonging court; (2) that the pretended appeal was never to said estate was of the value of $1,146.70, perfected, and the district court did not ac- and the real estate belonging thereto (it bequire jurisdiction over the subject-matter | ing the real estate involved in the sale in of the parties; that said guardian ad litem question) was of the value of about $3,500, was at all times a party to the proceedings making a total of $4,646.70, and the liabiliupon whom all notices should have been serv- ties were about $2,357.85. Deducting the liaed involving any interests of the minor heirs bilities from the assets would leave the heirs in said real estate; and (3), that the appellant of the estate about $2,088.85. After applywas not such a party in interest as would ing the personal property in paying the liagive him a right to appeal from said order of bilities there would remain liabilities to the confirmation. The record also shows that, amount of $1,211.15 to be paid out of the during the hearing of said motion in the dis- real estate. It will be observed from this

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