would not be reversed on the objection that the evidence was not sufficient to sustain a verdict for $1,000.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3944-3946.]

Appeal from District Court, Silver Bow County; John B. McClernan, Judge.

Action by John J. Kelly against the city of Butte. From a judgment for plaintiff, defendant appeals. Affirmed.

L. P. Forestell and J. F. Davies, for appellant. John J. McHatton, for respondent.

BRANTLY, C. J. Action for damages for a personal injury alleged to have been suffered by the plaintiff through the negligence of the defendant. The cause of action alleged is, in substance, that during the month of July, 1901, on the east side of North Main street of the defendant, there was an excavation, several feet in depth, immediately adjoining the east line of the sidewalk; that the existence of the excavation, if left unguarded, rendered travel along the sidewalk unsafe and dangerous; that the defendant, with knowledge of the unsafe condition, negligently permitted it to continue by failing to erect sufficient or any barriers to protect passengers from falling into the excavation or to place danger signals thereat to warn them of the danger; that on the night of July 23, 1901, the plaintiff, while traveling along the sidewalk in the darkness, without knowledge or sight of the danger and without warning, stepped or fell into the excavation, striking with great force upon the bottom thereof, by reason of which fall he suffered great external and internal injury by being cut and bruised about the head, by having a tooth knocked out, and by being bruised and injured about his leg and body, whereby he not only suffered great pain for the time, but was permanently injured. Judgment for $3,000 is demanded. The defense is a general denial. The plaintiff had verdict for $1,000. Defendant has appealed from the judgment and an order denying it a new trial. Complaint is made that the instructions submitted to the jury are erroneous, and that the verdict is contrary to the evidence.

1. Taking the charge as a whole, it fully and fairly instructed the jury as to the law applicable to the facts appearing in evidence. No substantive error is pointed out in any of them. The criticisms made of the paragraphs complained of are too technical to warrant special notice. For example: In paragraph 11, in enumerating the elements which should be taken into consideration by the jury in fixing the amount of recovery in case they should find for the plaintiff, the court said: "Such sum as will compensate him for any pain or suffering which he has endured, as a result of any injury which he has sustained, up to the present time, if you find from the evidence that he has sustained injury and find therefrom that he has suffered any pain." It is said that this directed the jury to compensate the plaintiff for any

injury sustained prior to the time of the trial, whether through the negligence of the defendant or not. Since the inquiry was as to the injury alleged in the complaint, the evidence was properly directed to ascertain the facts and circumstances attending it and no other. There was nothing in the evidence tending to show that the plaintiff had suffered any other injury. Hence the jury must have understood that the clause "up to the present time" had no reference to the injury, but to the suffering and pain endured, and therefore it could not have misled them.

2. The principal contention made as to the insufficiency of the evidence is that it fails to show that the defendant had actual or constructive notice of the existing condition, and therefore that it was not chargeable with negligence. We shall not undertake to determine whether or not a sufficient case was made to go to the jury as to notice. At the place where the accident occurred building operations were going on, and the excavation was made necessary thereby. There is some evidence to the effect that the excavation had been in existence for three days, or perhaps more, before the accident occurred. During the trial it was stipulated that the city has a street commissioner with an assistant, and a chief of police, whose duty it is to look after the streets. There were then introduced certain ordinances of the defendant, ostensibly to show a specific definition of their duties. For some reason these were omitted from the statement. If, therefore, it be conceded that the evidence in the record, including the stipulation, does not make out a case from which notice might be presumed, as the defendant contends, we cannot venture to speculate as to what are the requirements of the ordinances. So far as our knowledge goes, the requirements of these may be such as to make it the duty of these officers or other employés of the city to make daily inspections of the streets and sidewalks, and give special attention to buildings in course of erection or repair. In any event, this court may not review the evidence in order to determine its sufficiency, if the record does not show affirmatively that it is, in substance at least, all before it.

It is further said that the evidence is not sufficient to sustain a verdict for $1,000. It does justify a verdict for some amount. It shows that the plaintiff fell a distance of seven or eight feet; that he was severely cut on the head; that he had one tooth knocked out and another broken; that he was bruised in the hips and suffered other like injuries. Upon the assumption that the defendant is liable at all, these injuries alone warranted a recovery of more than nominal damages; and, since the defendant does not itself insist that the amount awarded by the jury is excessive, we may not say that it is.

The judgment and order are affirmed.
Affirmed.

MILBURN and HOLLOWAY, JJ., concur.

Since the provisions of Civ. Code, § 3700, entitling creditors to the benefit of securities given to a surety as indemnity, apply only to cases where the indemnity is furnished by the principal debtor, where a money judgment was rendered against defendant, and a stranger to the action deposited a sum in a bank to indemnify the sureties on an appeal bond, the deposit could not be applied to the payment of the creditor's claim, and accordingly, evidence was admissible in an action for the recovery of the deposit to show by whom it was made.

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Surety, §§ 402, 412.] 2. NEW TRIAL-NEWLY DISCOVERED EVIDENCE -DILIGENCE IN PROCURING EVIDENCE.

Where, in an action for money, an intervener recovered, an unsuccessful intervener was not entitled to a new trial on a showing that plaintiff's attorney had breached an agreement to take the deposition of plaintiff, who was in another state; that plaintiff's attorney had said he did not know where his client was, but would ascertain, but that he never informed the unsuccessful intervener's attorney as to plaintiff's whereabouts; that there was not sufficient time before the trial in which to locate plaintiff and ascertain what his testimony would be; and that after the trial it was ascertained that his testimony was material-where for over a month such intervener knew the character of plaintiff's claim and the importance of his testimony, and made no application for a continuance, and where there was no showing that if a new trial was granted there was any probability plaintiff could be located or his testimony obtained.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, §§ 197, 210, 211.]

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

Action by William O'Neill against the State Savings Bank and others, Nellie Gardiner and James Peirie intervening. From a judgment for Gardiner, and an order denying a new trial, Peirie appeals. Affirmed.

John J. McHatton, for appellant.

HOLLOWAY, J. James Peirie commenced an action in the justice of the peace court in Silver Bow county in 1897 against William O'Neill and George F. Kellogg, and such proceedings were had that plaintiff recovered a judgment against the defendants for $297.80 and costs. The defendants thereupon appealed to the district court and executed an undertaking on appeal in the sum of $867, conditioned as required by section 1763 of the Code of Civil Procedure. This was a joint and several undertaking and was signed by O'Neill and Kellogg as principals, and Robert Julien and P. A. Largey as sureties. In order to indemnify the sureties, the sum of $700 was deposited in the State Savings Bank. Such proceedings were had in the district court that a judgment was returned in said cause in favor of plaintiff Peirie and against the defendant Kellogg. Thereafter

Kellogg prosecuted an appeal to the Supreme Court of Montana, but, on motion of respondent, this appeal was dismissed. Peirie then prosecuted an action against the surety Robert Julien and recovered a judgment, but no part of the judgment so recovered has ever been paid, neither has any part of the judgment recovered by Peirie against Kellogg been paid. O'Neill brought this action against the State Savings Bank to recover the $700 deposited with said bank to indemnify Largey and Julien. Peirie filed a complaint in intervention in which he seeks judgment against O'Neill on account of his having signed the undertaking on appeal from the justice of the peace court to the district court, and seeks to subject to the satisfaction of such judgment the $700 deposited with the State Savings Bank. Nellie Gardiner (nee O'Rourke) also filed a complaint in intervention, in which she alleges that of the $700 deposited in the State Savings Bank, the sum of $350 was deposited by Robert Julien: that thereafter Julien withdrew his $350 of said $700, and that her father, father, Charles O'Rourke, deposited $350 with said bank in lieu of the like amount withdrawn by Julien and for the same purpose for which the original sum was deposited; and that she is now entitled to recover this $350 so deposited by her father. The defendant State Savings Bank made answer disclaiming any interest in the money in controversy, was permitted to deposit the same in the court, and was discharged from the case. Issues were joined by the plaintiff O'Neill, and the interveners Peirie and Gardiner. The cause was tried to the court sitting without a jury. The court found that Peirie recovered judgment in the justice of the peace court against O'Neill and Kellogg; that an appeal was taken by the defendants to the district court; that the appeal bond was executed by O'Neill and Kellogg as principals, and Julien and Largey as sureties; that O'Neill and Julien deposited the $700 in the bank to indemnify Julien and Largey against any loss by reason of their having signed the undertaking on appeal; that afterwards Julien withdrew $350 of said amount, and Charles O'Rourke, a stranger to the former transactions, deposited the like amount in lieu thereof and for the like purpose; that O'Rourke, or Nellie Gardiner (nee O'Rourke), was to be repaid this $350, if not necessary to indemnify the bondsmen.

The court also found that no part of the judgment recovered by Peirie against Kellogg has ever been paid, and that O'Neill has no property within the jurisdiction of the court, except his interest in the $700 on deposit. From the findings of fact the court concluded that one half of the $700 is a trust fund to which Peirie may resort for satisfaction of his claim, and that the other half, not being necessary to indemnify Largey and Julien, is the property of the intervener Nellie Gardiner, and judgment in

her favor for that amount was duly entered, from which judgment, and an order denying his motion for a new trial, the intervener Peirie appeals. We have not been aided by any brief on behalf of respondent Gardiner.

At the time of the trial of this cause the judgment in favor of Peirie and against Kellogg amounted to more than the $700. The contention of the appellant is that the money deposited in the bank to indemnify the sureties Julien and Largey inured to his benefit, and that the whole amount should have been awarded to him in satisfaction, or part satisfaction, of his claim. The trial court was not entirely accurate in its finding of fact No. 4, that the $350 deposited by O'Rourke was to be paid to him or Nellie Gardiner, if not necessary to indemnify said bondsmen. The testimony shows that the $350 deposited by O'Rourke in lieu of the like amount withdrawn by Julien was to be paid back to O'Rourke, or Nellie Gardiner, "if O'Neill wins suit and bondsmen are released." The suit referred to was the one by Peirie against O'Neill and Kellogg, then on appeal to the district court. The testimony respecting the deposit made by O'Rourke was introduced over the objection of this appellant, and complaint is now made of this ruling of the trial court. But we think the ruling was correct. A material question for determination was, who furnished the indemnity to Julien and Largey? That the $700 was deposited with the State Savings Bank to indemnify and save harmless Julien and Largey on account of their having become sureties on the appeal bond admits of no doubt. The evidence also appears to be sufficient to support the finding of the court that in April, 1898, Julien withdrew the $350 deposited by him, and O'Rourke deposited a like amount in lieu thereof and for the same purpose as the original deposits were made. Appellant invokes the rule of equity jurispru dence stated by Pomeroy as follows: "The doctrine and remedy of subrogation are extended also to the creditor, who is subrogated to and entitled to the benefit of all securities given to a surety for purposes of his indemnification by the principal debtor; and also between co-sureties, so that one surety, in enforcing his rights of exoneration and of contribution, is subrogated to securities given to his co-surety." (3 Pomeroy, Eq. Jur. § 1419.) The same general rule is embodied in our Code. Section 3700 of the Civil Code reads as follows: "A creditor is entitled to the benefit of everything which a surety has received from the debtor by way of security for the performance of the obligation, and máy, upon the maturity of the obligation, compel the application of such security to its satisfaction." The difficulty which confronts the appellant is that this general rule stated by the text-writers and by our Code is not applicable to the facts presented by this appeal. The rule rests upon the principle of natural equity, which requires

that property, in whatever form it may be, of him who is primarily liable for the payment of the debt shall be applied to the payment of the debt to the exoneration of one who is only secondarily liable. It is the principle of subrogation, which creates in favor of the creditor a trust which attaches to the property of the principal debtor the moment it is appropriated to the benefit of the surety. 1 Brandt on Suretyship and Guaranty, § 360, note. But, in any event, the rule so declares, and the principle above presupposes that the indemnity was furnished by the principal debtor. Where, however, the indemnity is furnished to the surety by a stranger, a trust does not attach in favor of the creditor, and he cannot be subrogated to the surety's rights. 1 Brandt on Suretyship and Guaranty, § 361. It was no fraud upon the creditor that O'Rourke should indemnify Julien and Largey, or either one of them. The appeal bond was amply sufficient when signed by Kellogg and O'Neill as principals, and Julien and Largey as sureties at least, this is the legal presumption arising from a failure to except to the sufficiency of the sureties-and therefore no one could complain that O'Rourke, who was not liable at all on account of the judgment or the appeal bond, should indemnify the sureties, or, having once indemnified them, with their consent should withdraw the indemnity. There is no principle of natural justice which would apply O'Rourke's property to the discharge of O'Neill's liability except upon the precise condition upon which the property was ap propriated, namely, that Julien or Largey should be compelled to pay on account of having signed the appeal bond. As O'Rourke's property was not liable to the discharge of O'Neill's liability, no one but the sureties could complain against the withdrawal of the indemnity at any time, either by O'Rourke in his lifetime, or by his daughter, the intervener Gardiner, and, as the sureties are offering no resistance, the court properly awarded the O'Rourke $350 to the intervener Gardiner. Leggett v. McClelland, 39 Ohio St. 624; Macklin v. Bank, 83 Ky. 314; Taylor v. Farmers' Bank, 87 Ky. 398, 9 S. W. 240; Black v. Kaiser, 91 Ky. 422, 16 S. W. 89; Magoffin v. Bank (Ky.) 69 S. W. 702; Hampton v. Phipps, 108 U. S. 260, 2 Sup. Ct. 622, 27 L. Ed. 719. That intervener Gardiner is entitled to this $350 deposited by O'Rourke, if O'Rourke in his lifetime was entitled to the same, is not controverted. Strictly speaking. the court's conclusion of law No. 4, should have been to the effect that the money deposited by O'Rourke, a stranger to the proceedings theretofore, did not inure to the benefit of the intervener Peirie, and, as neither surety objected to its withdrawal, it should be awarded to the intervener Gardiner, its rightful owner. But no one is prejudiced by the inaccurate statement in the court's conclusion and therefore it need not be reformed.

It was within the discretion of the trial court to permit the case to be reopened and the witness Hodgens to be called, and we do not think any abuse of such discretion is shown in this record.

One of the grounds of appellant's motion for a new trial was newly discovered evidence, and this was supported by the affidavit of J. J. McHatton, attorney for appellant. This affidavit sets forth that, after intervener Gardiner filed her complaint in intervention, the attorney for plaintiff arranged with him to stipulate to take the deposition of plaintiff O'Neill, who was then somewhere in California; that affiant relied upon attorney for plaintiff to take such deposition; that he asked attorney for plaintiff where plaintiff was and was informed that his attorney did not know his exact location but would ascertain; that plaintiff's attorney never informed affiant of O'Neill's exact whereabouts; that neither Peirie nor his attorney knew to what O'Neill would testify, but after this trial they were informed that O'Neill would testify that the $350 deposited by O'Rourke was a loan to O'Neill and was actually O'Neill's money; and finally, that from the date of the filing of Gardiner's complaint in intervention to the date of the trial "there was not sufficient time to investigate and locate said O'Neill and ascertain what he would testify to with reference to the deposit," etc. But on its face this affidavit is not sufficient. For a month before the trial, Peirie and his attorney knew that O'Neill claimed the entire $700 as his own, and that intervener Gardiner claimed $350 of it as her own. O'Rourke was dead, therefore the people who would most likely know the truth respecting this deposit by O'Rourke were O'Neill and the persons actively employed in the bank. If intervener Peirie relied upon O'Neill's attorney to take his deposition and expected by proper crossinterrogatories to ascertain from O'Neill the facts, and was misled by plaintiff's attorney, possibly a proper application to the trial court for a continuance would have been granted; but no such application was made. Peirie went to trial and took his chances of winning without the testimony of O'Neill, and now, having been defeated, he asks to have an opportunity to present such testimony upon another trial. But with the facts before him as presented by the complaint of O'Neill, who claimed the $700, and the complaint in intervention of Gardiner, which claimed $350 of the same money, Peirie ought not to have relied upon plaintiff's attorney to take O'Neill's deposition, but ought to have proceeded to secure the same himself. At most, the affidavit states that affiant made inquiry once as to O'Neill's whereabouts, and, in the absence of any showing of an attempt to find O'Neill, we do not deem conclusive the statement that there was not sufficient time to locate him. From the allegations in his complaint, O'Neill was the one person to whom Peirie

would naturally have turned first to disprove intervener Gardiner's claim.

It does not appear from the affidavit that, if a new trial should be had, there is any reasonable probability that the testimony of O'Neill could be secured-in fact, it does not appear that appellant knows where O'Neill can be found. Under these circumstances we think the trial court cannot be said to have abused its discretion in refusing a new trial.

No error appearing, the judgment and order are affirmed. Affirmed.

BRANTLY, C. J., and MILBURN, J., con

cur.

(34 Mont. 370)

THOMAS v. BOSTON & MONTANA
CONSOL. COPPER & SILVER
MIN. CO.

(Supreme Court of Montana. Dec. 13, 1906.) 1. MASTER AND SERVANT-PERSONAL INJURY— ACTION-INSTRUCTIONS.

An instruction that a servant, in entering on his employment, "assumed all the obvious and ordinary risks or dangers incident to the employment, and that, if the injury arose out of such obvious risks and dangers, defendant was not liable," was not improper for failure to separate "obvious and ordinary risks" from "the obvious and the ordinary risks"; the case having been tried on the theory that the risk was an ordinary one.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1168-1179.] 2. SAME.

Where a servant was injured while about to go on an unattached ladder down a dark place in a mine, an instruction that, if he had an opportunity to ascertain whether the ladder was loose or not, his duty would not "permit him to blindly venture upon it without investigation, but he was required to use his ordinary senses in place of danger," was not erroneous. [Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1168-1176.] Motion for rehearing. Denied. For former opinion, see 86 Pac. 499.

MILBURN, J. The remarks of counsel for appellant as to the filing of an appeal bond need not be considered by us, as reference to the original opinion (34 Mont., 86 Pac. 499) will show that all that is said therein was obiter dictum and expressly stated so to be.

over

Counsel complains that, except as to the matter of the appeal bond, "all questions presented by this appeal were * looked by such decision." The brief of appellant sets out only four specifications of error; that is to say, he declares that the court erred in giving certain instructions, four in number. The opinion shows plainly that we decided the question of the correctness of these instructions.

Instruction No. 11 is as follows: "You are further instructed that, in entering into the employment of the defendant, the said Wil

liam Thomas assumed all the obvious and ordinary risks or dangers incident to and arising out of the said employment, and the character of the work upon which he was engaged; and that, if the injury which he received arose out of such obvious risks and dangers, then the defendant cannot be held liable therefor." "Obvious and ordinary risks" are distinguishable from the obvious and the ordinary risks. The quoted phrase means obvious, ordinary risks, and plaintiff should not complain because the court did. not go farther and say that he assumed also ordinary risks which were not obvious.

It

is true that the defendant did not in its answer aver that the risk was an ordinary one, but there was evidence introduced, without objection, to support such theory, and, the case having been tried upon this theory of the defense, the instruction was not improper.

Instruction No. 18 is as follows: "The law required William Thomas to use his natural faculties. Whatever he might have seen or discovered, exercising reasonable and ordinary care, he is supposed to have known. If he had an opportunity to ascertain whether the ladder was loose or not, his duty would not permit him to blindly venture upon it, without investigation. He is required to use his ordinary senses in places of danger, such as ascending or descending through openings, and, if he failed to do so, and was injured on account thereof, he cannot recover, although the defendant company may have been negligent in not properly securing the ladder." Counsel finds fault with the sentence "his duty would not permit him to blindly venture upon it without investigation." The appellant was about to go upon an unattached ladder down a dark place in a mine. It seems to us that the sentence was only another way of saying that he ought to have used ordinary care common sense to see or feel where the ladder was and how it was. The court was talking about a ladder at a particular place and at certain moment of time. The instruction cannot properly be said to mean that it is the duty of an employé, in the exercise of ordinary care, to make himself an inspector or investigator of appliances in a mine. It was for the jury to say whether he used ordinary care if he failed, under the circumstances named, to satisfy himself where the ladder was.

We do not think that any of the instructions contained error prejudicial to the appellant under the peculiar circumstances of this case. The motion is denied. Denied.

HOLLOWAY, J., concur.

BRANTLY, C. J. I concur in the result, but do not desire to be understood as approving instruction 18 as proper to be given in any case. Under the circumstances of this case, I do not think it prejudicial.

Where a complaint by a servant for personal injuries clearly showed that there was a patent defect in the machine, it was not insufficient for failure to allege that the master was charged with knowledge of its existence. 3. SAME-MASTER'S LIABILITY-NATURE AND EXTENT STATUTORY PROVISIONS.

Civ. Code, § 2662, making an employer liable to his employé for losses caused by the former's want of ordinary care, does not preclude the master from offering any defense, though he had not used ordinary care. 4. TRIAL-DIRECTION OF VERDICT.

Where the evidence was not conflicting and such that, had the jury returned a verdict for plaintiff, it would have been the duty of the court to set it aside and grant a new trial, it was not error to grant a nonsuit.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 338-341.]

5. MASTER AND SERVANT-INJURIES TO SERVANT-ASSUMPTION OF RISK.

Where the evidence showed without contradiction that a mangle in a laundry in which plaintiff was working was defective, and that the defect was patent, and that plaintiff knew it, she assumed the risk as a matter of law, and it was not error to take the questions from the jury.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 574-600.] 6. PLEADING-DEFECT-WAIVER.

Where, in an action by a servant, the defense of assumption of risk was not properly pleaded, but the case was tried on such theory of defense, and plaintiff's testimony showed she had no cause of action, a nonsuit was proper.

Holloway, J., dissenting.

Appeal from District Court, Lewis & Clark County; J. M. Clements, Judge.

Action by Rilla M. Coulter against the Union Laundry Company. A motion for nonsuit was granted, and, from an order granting a new trial, defendant appeals. Reversed and remanded.

T. J. Walsh and W. T. Pigott, for appellant. E. A. Carleton, for respondent.

MILBURN, J. This is an action to recover damages for damage done to the respondent, in that her hand was caught, burned, and crushed by and between the rolls of a mangle, which machine she was working at appellant's laundry. It is alleged in the complaint that the defendant is a corporation; that plaintiff was injured by the mangle about May 1, 1902; that she was hired by the concern about March 10, 1902, to run a machine called a neckband ironer, and continuously worked for the defendant until the time of her injury. Soon after being thus hired, she, in addition to running