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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.

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 laths 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

"(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 negli- | timbers, by reason of which plaintiff was gently 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

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 $45 and his board per month, and that on account of said injuries his earning capacity has been entirely destroyed.

"(10) That by reason of 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 contention that the demurrer should have been overruled. Respondent, also, provides us with a number of authorities contending that they support the action of the trial court, and that there was no error in sustaining the demurrer and entering judgment for costs. 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. If it is true, as alleged in the complaint, that appellant had been engaged in other work for respondent for a year prior to the accident, and on the day of the accident had been required by the master to perform labor with which he was not familiar; that in the performance of such labor he was injured as alleged; that he had carefully inspected the situation and no danger was apparent; that he took the team and dump cart furnished him by respondent, loaded the laths as directed, and followed the only road furnished for him and met with the accident as alleged; that no warning had been given him by respondent or any one acting for it of the danger in passing under the carrier with the dump cart loaded with laths-it would seem to us that appellant was not guilty of contributory negligence, and that respondent should be required to respond in damages for his injury. When appellant was furnished the team and dump cart and directed to haul the laths to the dry house, and there was but one road over which he could travel, he had a right to assume that the cart loaded with laths would safely pass under the carrier, especially when it was his first day in the new field of labor assigned him. We are not without authority in this conclusion: Wiest v. Coal Creek Ry. Co. (Wash.) 84 Pac. 725. In Christ v. Wichita Gas, Electric Light & Power Co. (Kan.) 83 Pac. 199, Mr. Justice Smith of the Kansas Supreme Court, discussing a personal damage case, says: "The rule requiring a master to furnish his servant a reasonably safe place to work has no iron-bound limitations as to whether the place be a permanent or a temporary one. If the master sends a servant to work in a place of danger, however temporary, and the danger arises from acts or omissions of other servants, against which the servant has no means of protecting himself, it is the duty of the master to provide such warnings or to take such other steps as may be reasonably necessary to safeguard the servant so employed. * * *" In Clark v. Wolverine Portland Cement Co. (Mich.) a recent decision of the Supreme Court of Michigan, 101 N. W. 845, the rule is laid down thus: "Where an employé is sent into

a place provided by the master, where discovery of a defect is difficult, he has a right to assume, in the absence of any circumstances creating a doubt in his mind, that his safety has been provided for." Thompson on Negligence, § 4017; Drake v. San Antonio & A. P. Ry. Co. (Tex. Sup.) 89 S. W. 407.. A Texas case is very interesting and instructive on the duty of the master to the servant. Section 349 of Wood on Master & Servant says: "When the servant has equal knowledge with the master of the danger incident to the work, he takes the risk upon himself if he goes on with it, but this only applies where the servant is of sufficient discretion to appreciate the dangers incident to the work. Where there are latent defects or hazards incident to an occupation of which the master knows or ought to know, it is his duty to warn the servant of them fully, and, failing to do so, he is liable to him for any injury that he may sustain in consequence of such neglect; and this rule applies even when the danger or hazard is patent, if, through inexperience or other cause, the servant is incompetent to fully understand and appreciate the nature and extent of the hazard." Mr. Beach on Contributory Negligence, § 156, says: "Upon turning to the decisions, we shall find that the decided weight of authority is in favor of the rule that the burden is upon the plaintiff in these actions to show his own freedom from contributory negligence," and cites in support of this text Massachusetts, Maine, Mississippi, Louisiana, North Carolina, Michigan, Oregon, Illinois, Connecticut, Iowa, and Indiana, and further says that "this rule has not in general found favor with the textwriters and the theorists and critics. It is submitted that, if there is to be any flexible rule, this is the one which will most often subserve the ends of substantial justice." Then, at section 157, the author says: "In many jurisdictions it is the rule that contributory negligence is matter of defense, and that the burden of establishing it is upon the defendant. Where this rule obtains, the plaintiff has made his case when he has shown injury to himself, and negligence on the part of the defendant which was a proximate cause of it. It then devolves upon the defendant to allege and prove contributory negligence as matter of defense; the presumption being in favor of the plaintiff, that he was at the time of the accident in the exercise of due care, and that the injury was caused wholly by the defendant's negligent misconduct. This is the doctrine of the Supreme Court of the United States, and it is the rule in Alabama, California, Georgia, Kentucky, Kansas, Maryland, Minnesota, Missouri, New Hampshire, New Jersey, Nebraska, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, Wisconsin, West Virginia, Vermont, and Colorado, as well as in England." The two sec tions above referred to will be found quite

interesting and instructive on the subject under consideration. We can see much more reason for the rule laid down in the last section and followed by most of the American courts as well as the courts of England as stated by Mr. Beach. It is only fair to assume that the master knows or should know the condition of his property and of any danger that may be lurking in the construction or operation of any part of it to his servants; hence his duty to repair the evil, or warn his employés of the possible danger to them.

Many other authorities are cited by ap pellant and a number by respondent, but a careful inspection of all of them convinces us that the demurrer in this case should have been overruled and the defendant required to plead by way of answer to the complaint.

The judgment is reversed and remanded to the lower court, with instructions to overrule the demurrer and give defendant reasonable time to answer the complaint if it so desire. Costs to appellant.

AILSHIE and SULLIVAN, JJ., concur.

(12 Idaho, 708)

SHRECK V. VILLAGE OF CŒUR
D'ALENE.

(Supreme Court of Idaho. Dec. 3, 1906.) 1. MUNICIPAL CORPORATION TORTS - NUISANCE ABATEMENT - TEMPORARY INJUNCTION.

Where the plaintiff shows by his complaint and affidavits that the defendant municipality is maintaining a nuisance specially injurious to the complainant, and the defendant does not deny the existence of the nuisance, but alleges that it has taken steps to abate the same, and that it means and intends to prevent any repetition or recurrence of the matters charged as constituting the nuisance, and affidavits are produced showing that conditions have not been materially changed, and that the cause of complaint still exists, a temporary injunction ought to issue, and it is error to refuse such relief. [Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1552.] 2. SAME EVIDENCE.

Showing made in this cause examined, and held sufficient to entitle plaintiff to an injunction pendente lite.

(Syllabus by the Court.)

Appeal from District Court, Kootenai County; Ralph T. Morgan, Judge.

Action by John Shreck against the village of Cœur d'Alene. Application for temporary injunction, and plaintiff appeals. Reversed.

Edward LaVeine, for appellant. Earl Sanders, for respondent.

AILSHIE, J. This is an appeal from an order denying a temporary injunction. The plaintiff filed his complaint on the 9th day of April, 1906, charging that the defendant, the village of Coeur d'Alene, was the owner of a tract of land within the vicinity of plaintiff's premises on which it was main- |

taining a dump for the deposit of all kinds of waste, refuse, and decaying matter, and more especially decaying animal and vegetable matter, which emitted offensive and disagreeable odors and effluvia, which endanger the health and comfort of plaintiff and his family, and that the same depreciated the value of his property and rendered his premises unsafe for habitation. The substance of the complaint amounted to charging the municipality with maintaining both a public and private nuisance, which is especially injurious to the plaintiff. The plaintiff filed affidavits in support of the allegations of the complaint, and thereupon obtained from the district judge an order requiring the defendant to show cause at a time and place specified why a temporary injunction should not be granted against the defendants maintaining the dump and continuing to cause and permit waste, decaying, and refuse matter to be deposited thereon. On the return day the defendants demurred to the complaint and filed the affidavits of the village trustees, in which they deposed, in effect, that they had never intended to permi. any vegetable or 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 other waste and refuse to be deposited at this dumpyard as would not emit or give off any offensive odors. It was also shown by these affidavits that they had not been informed that the dump grounds were being used for purposes other than that originally intended by them until a very short time prior to the commencement of this action; that immediately upon learning of the condition the board of trustees passed a resolution prohibiting the dumping of any animal or vegetable matter on these grounds, and instructing their officers to enforce the provisions of the resolution; that they also caused the marshal to post notices on the grounds informing the public that all persons were prohibited from dumping any waste matter there that would give off offensive odors. The trustees also disclaim any purpose or intent on the part of themselves or the municipality represented by them to maintain any nuisance upon their premises and also assert their purpose to prevent any nuisance thereon in the future. The plaintiff filed a counter affidavit signed by three of the citizens who lived and resided near him and in the neighborhood of the dump grounds, in which they stated they had visited the premises in dispute and that the nuisance was still being maintained, and that decaying and decomposed matter was being deposited there still. The district judge, after hearing the matter, took it under advisement, and thereafter made and filed his order denying the injunction. Plaintiff has appealed from the order.

We think the showing made by the respective parties in this case clearly entitled the plaintiff to a temporary injunction until such

time as the case could be heard in full on both sides. The defendant municipality has practically admitted at all times that this dumpyard in the condition in which it was kept amounted to a nuisance, but they seem to have attempted to justify the action of the municipal officers on the grounds that they were not apprised of the condition until a short time prior to the commencement of the action, and that they immediately took the necessary steps to remove the nuisance by burying all the animal and vegetable matter found thereon, and that they faithfully and honestly attempted to prevent the dumping of any more offensive matter thereon. The officers are undoubtedly acting in good faith and have no intent of injuring the plaintiff, but intent to injure or do a wrongful act is not the test in cases of nuisance. A party may be maintaining a nuisance or committing a lasting and permanent injury upon the rights of another without any malicious or wrongful intent toward the person injured, and yet be subject to an action to restrain him

from the further commission of such Of course, if it could be clearly and satisfactorily shown that the defendants had removed the cause of the nuisance, and that the plaintiff was in no further danger of its repetition or recurrence, there would be no occasion for an injunction, but that fact does not clearly appear in this case, and the plaintiff was entitled to a restraining order as prayed for. If the municipality is acting in good faith, as we have no doubt it is, an injunction against the continuation of this nuisance can work no injury upon it. In a case like this, where the plaintiff has shown a condition which the defendant admits constituted a nuisance, the discretion of the court should be liberally exercised in favor of the plaintiff, and the granting of an injunction pendente lite until the case can be fairly tried and fully determined upon all the facts presented, or until such time as the defendant can fully and clearly satisfy the court that it has removed the cause and relieved the plaintiff from further risk of its repetition.

The order of the district court denying a temporary injunction is reversed. The cause is remanded, with instructions to grant a temporary injunction pendente lite. Costs awarded in favor of appellant.

STOCKSLAGER, C. J., and SULLIVAN, J., concur.

(12 Idaho, 699)

REED V. STEWART.* (Supreme Court of Idaho. Nov. 30, 1906.) 1. EXECUTORS AND ADMINISTRATORS-INTESTATE ESTATE-JURISDICTION.

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 pos*For opinion on rehearing, see 87 Pac. 1152.

session of the administrator appointed by that court for the purposes of administration.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 533, 629.]

2. SAME-SALE OF PROPERTY-CONFIRMATION -APPEAL.

As the title to the property of the intestate in such cases passes to the heirs subject to the provisions of said section, they are interested parties in the sale thereof, and where a sale has been confirmed by the probate court and the purchaser appeals from such confirmation, such heirs or their guardian ad litem are adverse parties and must be served with a notice of appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 1382, 1538.]

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Where an administrator files his petition and commences proceedings for the sale of real estate belonging to his intestate, all of the orders made in such matter are in the one proceeding, as such proceeding consists of all orders and things done by the court in such matter from the filing of the petition to the confirmation of the sale and delivery of the deed.

5. SAME-RIGHTS OF HEIRS.

The heirs in such cases are pecuniarily interested in all such property and are entitled to their day in court in all of the proceedings affecting the title to such property and are adverse parties under the provisions of section 4808, Rev. St. 1887.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, §§ 1381, 1473.]

(Syllabus by the Court.)

Appeal from District Court, Idaho County; Edgar C. Steele, Judge.

In the matter of the estate of Louis H. Denison, deceased. From a judgment of the district court dismissing the appeal of George M. Reed from an order made by the probate court confirming the sale by C. B. Stewart, administrator, of certain real estate of the decedent and the conveyance thereof, he appeals. Motion to dismiss granted, and judgment affirmed.

W. N. Scales, for appellant. J. M. McDonald, for respondent.

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 purpose of paying the debts of said deceased, and alleged in said petition that he was also the guardian of the minor heirs of said deceased and prayed that a guardian ad litem be appointed for said minor heirs to represent their interests in said matter. Said petition also showed that said estate is solvent, and that there will be a residue for distribution among the heirs after all debts and expenses of administering said estate are paid. It appears that the probate court duly appointed R. F. Fulton, Esq., as guardian ad litem of said minor heirs to represent them in the matter of said sale; that, upon the hearing of said petition, said Fulton appeared as such guardian ad litem, and consented that said real estate be sold, and thereupon the probate court duly authorized said administrator to sell the same at private sale; that thereafter, on July 11, 1905, the said administrator received a bid for said real estate from the appellant, the same being accompanied with 10 per cent. of the bid in cash, which bid the said administrator accepted, and thereafter, on July 31, 1905, he filed his return of said sale in the probate court of said county, and by order of said court said return of sale was set down for hearing on the 26th day of August, 1905. No objection was made by said Fulton as guardian ad litem to the confirmation of said sale. But on August 26, 1905, the said appellant appeared in said probate court and filed his objections to the confirmation of said sale, which were overruled by the court, and the court thereupon examined said return of sale and the testimony of witnesses in support thereof, and, finding that the law and all the orders of the court had been duly complied with by said administrator in said matter, and that said sale and all things connected therewith had been fairly and legally conducted and done, the same was confirmed. From said order of confirmation the appellant appealed to the district court of Idaho county, but did not serve the said guardian ad litem with any notice of appeal. When the matter came on for hearing in the district court the administrator moved to dismiss the appeal on the grounds following, to wit: (1) That said guardian ad litem had appeared on the hearing of the petition for the sale of said real estate and consented thereto, and that he was not served with said notice of appeal from the probate court to the district court; (2) that the pretended appeal was never perfected, and the district court did not acquire jurisdiction over the subject-matter of the parties; that said guardian ad litem was at all times a party to the proceedings upon whom all notices should have been served involving any interests of the minor heirs in said real estate; and (3), that the appellant was not such a party in interest as would give him a right to appeal from said order of confirmation. The record also shows that, during the hearing of said motion in the dis

trict court, the administrator made an offer to the appellant which would cure all the objections made by the appellant to the confirmation of said sale. After hearing the arguments of the counsel upon said motion to dismiss, the court sustained the motion and entered a judgment of dismissal, from which judgment this appeal is taken. Counsel for respondent has filed a motion in this court to dismiss this appeal on the ground that the guardian ad litem of said minor heirs, who appeared upon the hearing of the original petition for the sale of the said real estate, had not been served with a notice of appeal from the district court to this court as required by law. That motion was based upon an affidavit of the guardian ad litem and upon the transcript on appeal.

The only question submitted for decision on this motion is whether, in a proceeding for the sale of real estate belonging to a decedent's estate, the guardian ad litem of the minor heirs is entitled to a service of the notice of appeal from an order confirming the sale of such real estate as an adverse party. The law of succession to the estates of certain intestates is fixed by the provisions of section 5701, Rev. St. 1887, which is as follows: "The property both re1 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 to the possession of any administrator appointed by that court for the purposes of administration." From the provisions of that section it will be observed that the title to both real and personal property of one who dies without disposing of it by will passes to the heirs of the intestate, subject, however, to the control of the probate court and to the possession of any administrator appointed by that court for the purposes of administration. That being true, the question arises, would the minor heirs in the case at bar be affected by a modification or reversal of the order or judgment appealed from? If they would they are adverse parties under the provisions of section 4808, Rev. St. 1887, as held by this court in Aulbach v. Dahler, 4 Idaho, 654, 43 Pac. 322. And in Titiman v. Alamance Mining Co., 9 Idaho, 240, 74 Pac. 529, this court passed upon the question under consideration and there cited numerous decisions from California and this court bearing upon this question. It is shown by the record that the personal property belonging to said estate was of the value of $1,146.70, and the real estate belonging thereto (it being the real estate involved in the sale in question) was of the value of about $3,500, making a total of $4,646.70, and the liabilities were about $2,357.85. Deducting the liabilities from the assets would leave the heirs of the estate about $2,088.85. After applying the personal property in paying the liabilities there would remain liabilities to the amount of $1,211.15 to be paid out of the real estate. It will be observed from this

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