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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, $8 3944-3946.)

Appeal from District Court, Silver Bow County; John B. McCiernan, 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 videwalk 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” bad 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.

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 ex cessive, we may not say that it is.

The judgment and order are affirmed.
Affirmed.

MILBURN and HOLLOWAY, JJ., concur.

(34 Mont. 521)

Kellogg prosecuted an appeal to the Supreme O'NEILL V. STATE SAVINGS BANK et al. Court of Montana, but, on motion of respond

(GARDINER et al., Interveners). ent, this appeal was dismissed. Peirie then (Supreme Court of Montana. Dec. 4, 1906.) prosecuted an action against the surety Rob1. PRINCIPAL AND SURETY REMEDIES OF

ert Julien and recovered a judgment, but no CREDITORS RECOURSE TO INDEMNITY TO part of the judgment so recovered has ever SURETY.

been paid, neither has any part of the judgSince the provisions of Civ. Code, $ 3700,

ment recovered by Peirie against Kellogg entitling creditors to the benefit of securities given to a surety as indemnity, apply only to

been paid. O'Neill brought this action cases where the indemnity is furnished by the against the State Savings Bank to recover principal debtor, where a money judgment was

the $700 deposited with said bank to inrendered against defendant, and a stranger to the action deposited a sum in a bank to in

demnify Largey and Julien. Peirie filed a demnify the sureties on an appeal bond, the complaint in intervention in which he seeks deposit could not be applied to the payment of judgment against O'Neill on account of his the creditor's claim, and accordingly, evidence

having signed the undertaking on appeal was admissible in an action for the recovery of the deposit to show by whom it was made.

from the justice of the peace court to the [Ed. Note.-For cases in point, see Cent. Dig. district court, and seeks to subject to the vol. 40, Principal and Surety, SS 402, 412.] satisfaction of such judgment the $700 de2. NEW TRIAL-NEWLY DISCOVERED EVIDENCE posited with the State Savings Bank. Nellie -DILIGENCE IN PROCURING EVIDENCE.

Gardiner (nee O'Rourke) also filed a comWhere, in an action for money, an intervener recovered, an unsuccessful intervener

plaint in intervention, in which she alleges was not entitled to a new trial on a showing that of the $700 deposited in the State Savthat plaintiff's attorney had breached an agree ings Bank, the sum of $350 was deposited by ment to take the deposition of plaintiff, who

Robert Julien; that thereafter Julien withwas in another state; that plaintiff's attorney had said he did not know where his client was,

drew his $350 of said $700, and that her but would ascertain, but that he never in

father, Charles O'Rourke, derosited $350 formed the unsuccessful intervener's attorney with said bank in lieu of the like amount as to plaintiff's whereabouts; that there was

withdrawn by Julien and for the same purnot sufficient time before the trial in which to locate plaintiff and ascertain what his testi

pose for which the original sum was depositmony would be; and that after the trial it ed; and that she is now entitled to recover was ascertained that his testimony was

this $350 so deposited by her father. The terial-where for over a month such intervener knew the character of plaintiff's claim and the

defendant State Savings Bank made answer importance of his testimony, and made no disclaiming any interest in the money in conapplication for a continuance, and where there troversy, was permitted to deposit the same wa's no showing that if a new trial was granted

in the court, and was discharged from the there was any probability plaintiff could be located or his testimony obtained.

case. Issues were joined by the plaintiff [Ed. Note.-For cases in point, see Cent. Dig.

O'Neill, and the interveners Peirie and Garvol. 37, New Trial, $$ 197, 210, 211.]

diner. The cause was tried to the court sit

ting without a jury. The court found that Appeal from District Court, Silver Bow

Peirie recovered judgment in the justice of County; Geo. M. Bourquin, Judge. Action by William O'Neill against the

the peace court against O'Neill and Kellogg ;

that an appeal was taken by the defendState Savings Bank and others, Nellie Gardi

ants to the district court; that the appeal ner and James Peirie intervening. From a

bond was executed by O'Neill and Kellogg as judgment for Gardiner, and an order deny

principals, and Julien and Largey as sureing a new trial, Peirie appeals. Affirmed.

ties; that O'Neill and Julien

Julien deposited John J. McHatton, for appellant.

the $700 in the bank to indemnify Julien

and Largey against any loss by reason HOLLOWAY, J. James Peirie commenced of their having signed the undertaking on apan action in the justice of the peace court in peal; that afterwards Julien withdrew $350 Silver Bow county in 1897 against William of said amount, and Charles O'Rourke, a O'Neill and George F. Kellogg, and such stranger to the former transactions, deposited proceedings were had that plaintiff recovered the like a mount in lieu thereof and for the a judgment against the defendants for $297.80 like purpose; that O'Rourke, or Nellie Gardiand costs. The defendants thereupon ap ner (nee O'Rourke), was to be repaid this pealed to the district court and executed an

$350, if not necessary to indemnify the bondsundertaking on appeal in the sum of $867, men. The court also found that no part of conditioned as required by section 1763 of the judgment recovered by Peirie against the Code of Civil Procedure. This was a Kellogg has ever been paid, and that O'Neill joint and several undertaking and was sign has no property within the jurisdiction of ed by O'Neill and Kellogg as principals, and the court, except his interest in the $700 on Robert Julien and P. A. Largey as sureties. deposit. From the findings of fact the court In order to indemnify the sureties, the sum concluded that one half of the $700 is a of $700 was deposited in the State Savings trust fund to which Peirie may resort for Bank. Such proceedings were had in the satisfaction of his claim, and that the other district court that a judgment was returned half, not being necessary to indemnify in said cause in favor of plaintiff Peirie and Largey 'and Julien, is the property of the against the defendant Kellogg. Thereafter intervener Nellie Gardiner, and judgment in

her favor for that amount was duly entered, that property, in whatever form it may be, of from which judgment, and an order denying him who is primarily liable for the payment his motion for a new trial, the intervener of the debt shall be applied to the payment Peirie appeals. We have not been aided by of the debt to the exoneration of one who is any brief on behalf of respondent Gardiner. only secondarily liable. It is the principle

At the time of the trial of this cause the of subrogation, which creates in favor of the judgment in favor of Peirie and against creditor a trust which attaches to the properKellogg amounted to more than the $700. ty of the principal debtor the moment it is The contention of the appellant is that the appropriated to the benefit of the surety. 1 money deposited in the bank to indemnify the Brandt on Suretyship and Guaranty, $ 360, sureties Julien and Largey inured to his note. But, in any event, the rule so declares, benefit, and that the whole amount should and the principle above presupposes that the have been awarded to him in satisfaction, indemnity was furnished by the principal or part satisfaction, of his claim. The trial debtor. Where, however, the indemnity is court was not entirely accurate in its finding furnished to the surety by a stranger, a of fact No. 4, that the $350 deposited by trust does not attach in favor of the creditor, O'Rourke was to be paid to him or Nellie and he cannot be subrogated to the surety's Gardiner, if not necessary to indemnify said rights. 1 Brandt on Suretyship and Guarbondsmen. The testimony shows that the anty, $ 361. It was no fraud upon the cred$350 deposited by O'Rourke in lieu of the itor that O'Rourke should indemnify Julien like amount withdrawn by Julien was to be and Largey, or either one of them. The appaid back to O'Rourke, or Nellie Gardiner, peal bond was amply sufficient when signed “if O'Neill wins suit and bondsmen are re by Kellogg and O'Neill as principals, and leased.” The suit referred to was the one by Julien and Largey as sureties—at least, this Peirie against O'Neill and Kellogg, then on is the legal presumption arising from a failappeal to the district court. The testimony ure to except to the sufficiency of the surerespecting the deposit made by O'Rourke was ties--and therefore no one could complain introduced over the objection of this appel- that O'Rourke, who was not liable at all on lant, and complaint is now made of this rul account of the judgment or the appeal bond, ing of the trial court. But we think the should indemnify the sureties, or, having once ruling was correct. A material question for indemnified them, with their consent should determination was, who furnished the in- withdraw the indemnity. There is no prindemnity to Julien and Largey? That the $700 ciple of natural justice which would apply was deposited with the State Savings Bank O'Rourke's property to the discharge of to indemnify and save harmless Julien and O'Neill's liability except upon the precise Largey on account of their having become condition upon which the property was apsureties on the appeal bond admits of no propriated, namely, that Julien or Largey doubt. The evidence also appears to be suffi should be compelled to pay on account of havcient to support the finding of the court that ing signed the appeal bond. As O'Rourke's in April, 1898, Julien withdrew the $350 de property was not liable to the discharge of posited by him, and O'Rourke deposited a O'Neill's liability, no one but the sureties like amount in lieu thereof and for the same could complain against the withdrawal of purpose as the original deposits were made. the indemnity at any time, either by Appellant invokes the rule of equity jurispru O'Rourke in his lifetime, or by his daughter, dence stated by Pomeroy as follows: "The the intervener Gardiner, and, as the suredoctrine and remedy' of subrogation are ex ties are offering no resistance, the court tended also to the creditor, who is subrogated properly awarded the O'Rourke $350 to the to and entitled to the benefit of all securities intervener Gardiner. Leggett v. McClelland, given to a surety for purposes of his indemni 39 Ohio St. 624; Macklin v. Bank, 83 Ky. fication by the principal debtor; and also 314; Taylor v. Farmers' Bank, 87 Ky. 398, between co-sureties, so that one surety, in 9 S. W. 240; Black v. Kaiser, 91 Ky. 422, 16 enforcing his rights of exoneration and of S. W. 89; Magoffin v. Bank (Ky.) 69 S. W. 702; contribution, is subrogated to securities given Hampton v. Phipps, 108 U. S. 260, 2 Sup. Ot. to his co-surety." (3 Pomeroy, Eq. Jur. § 622, 27 L. Ed. 719. That intervener Gardiner 1419.) The same general rule is embodied is entitled to this $350 deposited by in our Code. Section 3700 of the Civil Code O'Rourke, if O'Rourke in his lifetime was enreads as follows: "A creditor is entitled to titled to the same, is not controverted. Strictthe benefit of everything which a surety has ly speaking, the court's conclusion of law received from the debtor by way of security No. 4, should have been to the effect that for the performance of the obligation, and the money deposited by O'Rourke, a stranger máy, upon the maturity of the obligation, to the proceedings theretofore, did not inure compel the application of such security to to the benefit of the intervener Peirie, and, its satisfaction.” The difficulty which con as neither surety objected to its withdrawal, fronts the appellant is that this general

general | it should be awarded to the intervener Gardrule stated by the text-writers and by our iner, its rightful owner. But no one is pre Code is not applicable to the facts presented judiced by the inaccurate statement in the by this appeal. The rule rests upon the

rests upon the court's conclusion and therefore it need not principle of natural equity, which requires | be reformed.

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., concur.

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. leirie 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

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

(34 Mont. 370) TITOMAS v. BOSTON & MONTANA CONSOL. COPPER & SILVER

MIN. CO. (Supreme Court of Montana. Dec. 13, 1906.) 1. MASTER AND SERVANT-PERSONAL INJURYACTION-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, SS 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.

Counsel complains that, except as to the matter of the appeal bond, "all questions presented by this appeal were

overlooked 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 de cided 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

(34 Mont. 590) ordinary risks or dangers incident to and COULTER v. UNION LAUNDRY CO. arising out of the said employment, and the

(Supreme Court of Montana. Dec. 22, 1900.) character of the work upon which he was en

1, APPEAL-RECORD--CERTIFICATION. gaged; and that, if the injury which he re Where the judge, in making his certificate ceived arose out of such obvious risks and settling the statement, recites that the state

ment contains all the evidence, it is sufficient. dangers, then the defendant cannot be held

[Ed. Note.--For cases in point, see Cent. Dig. liable therefor." "Obvious and ordinary

vol. 3, Appeal and Error, $8 2918-2927.] risks” are distinguishable from the obvious

2. MASTER AND SERVANT SAFE PLACE TO and the ordinary risks. The quoted phrase

WORK – PATENT DEFECTS – KNOWLEDGE OF means obvious, ordinary risks, and plaintiff MASTER-PLEADING. should not complain because the court did Where a complaint by a servant for per

sonal injuries clearly showed that there was not go farther and say that he assumed also

a patent defect in the machine, it was not inordinary risks which were not obvious. It sufficient for failure to allege that the master is true that the defendant did not in its an was charged with knowledge of its existence. swer aver that the risk was an ordinary one,

3. SAME-MASTER'S LIABILITY-NATURE AND

EXTENT-STATUTORY PROVISIONS. but there was evidence introduced, without

Civ. Code, $ 2662, making an employer objection, to support such theory, and, the liable to his employé for losses caused by the case having been tried upon this theory of former's want of ordinary care, does not prethe defense, the instruction was not improper.

clude the master from offering any defense,

though he had not used ordinary care. Instruction No. 18 is as follows: "The law

4. TRIAL-DIRECTION OF VERDICT. required William Thomas to use his natural

Where the evidence was not conflicting and faculties. Whatever he might have seen or such that, had the jury returned a verdict discovered, exercising reasonable and ordi- ' for plaintiff, it would have been the duty of

the court to set it aside and grant a new nary care, he is supposed to have known. If

trial, it was not error to grant a nonsuit. he had an opportunity to ascertain whether

[Ed. Note.-For cases in point, see Cent. Dig. the ladder was loose or not, his duty would vol. 46, Trial, $$ 338-341.) not permit him to blindly venture upon it, 5. MASTER AND SERVANT-INJURIES TO SERVwithout investigation. He is required to use ANT-ASSUMPTION OF Risk, his ordinary senses in places of danger, such

Where the evidence showed without con

tradiction that a mangle in a laundry in which as ascending or descending through openings,

plaintiff was working was defective, and that and, if he failed to do so, and was injured on the defect was patent, and that plaintiff knew account thereof, he cannot recover, although

it, she assumed the risk as a matter of law, and the defendant company may have been negli

it was not error to take the questions from

the jury. gent in not properly securing the ladder.”

[Ed. Note.--For cases in point, see Cent. Dig. Counsel finds fault with the sentence "his vol. 34, Master and Servant, $s 574-600.] duty would not permit him to blindly venture 6. PLEADING-DEFECT-WAIVER. upon it without investigation." The appel Where, in an action by a servant, the lant was about to go upon an unattached lad defense of assumption of risk was not properly der down a dark place in a mine. It seems

pleaded, but the case was tried on such theory

of defense, and plaintiff's testimony showed to us that the sentence was only another way she had no cause of action, a nonsuit was of saying that he ought to have used ordi proper. nary care common sense to see or feel Holloway, J., dissenting. where the ladder was and how it was. The

Appeal from District Court, Lewis & Clark court was talking about a ladder at a partic

County; J. M. Clements, Judge. ular place and at certain moment of time.

Action by Rilla M. Coulter against the The instruction cannot properly be said to

Union Laundry Company. A motion for noninean that it is the duty of an employé, in the suit was granted, and, from an order grantexercise of ordinary care, to make himself an ing a new trial, defendant appeals. Reversinspector or investigator of appliances in a

ed and remanded. mine It was for the jury to say whether he

T. J. Walsh and W. T. Pigott, for appelused ordinary care if he failed, under the circumstances named, named, to satisfy himself

lant. E. A. Carleton, for respondent. where the ladder was. We do not think that any of the instruc

MILBURN, J. This is an action to retions contained error prejudicial to the ap

cover damages for damage done to the pellant under the peculiar circumstances of

respondent, in that her hand was caught, this case. The motion is denied.

burned, and crushed by and between the Denied.

rolls of a mangle, which machine she was working at appellant's laundry. It is alleged

in the complaint that the defendant is a corHOLLOWAY, J., concur.

poration; that plaintiff was injured by the

mangle about May 1, 1902; that she was BRANTLY, C. J. I concur in the result, hired by the concern about March 10, 1902, but do not desire to be understood as approv to run a machine called a neckband ironer, ing instruction 18 as proper to be given in and continuously worked for the defendant any case. Under the circumstances of this until the time of her injury. Soon after case, I do not think it prejudicial.

being thus hired, she, in addition to running

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