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the ironer, was ordered by the foreman of she was employed in the beginning to iron the company to assist from time to time in handkerchiefs and help with other ironing l'unning and operating the mangle, and that, | by hand, and, in addition to working the after finishing her regular work on the neck neckband ironer, she ironed handkerchiefs band ironer, by the direction of the foreman and plain clothes by hand, and that was all she would assist other employés in running she was employed to do. She was put to the mangle; that on the 1st day of May, work on the mangle by the man who employwhile so assisting, and without fault on her ed her. A few days after she came to the part, as she alleges, her right hand was place she was asked by the foreman to go (aught between the rollers of the mangle, and help on the mangle. She described in they being of iron or steel and heated to a her testimony the machine called the “manvery high degree and revolving with great gle” with great particularity, and showel speed, and her fingers and hand were drawn that she was familiar with the manner of in between the rollers, which were

its working. On the second or third day close together. Her fingers and hand were she was directed to help on that machine. severely burned and injured, and by reason Part of the time she folded clothes and part of such injury she has been permanently of the time she would feed the machine. disabled and prevented from following her | She says that she "helped out on it someoccupation and incapacitated from doing any times every day for a few days, and then considerable work or labor. It is further again it would be a week or a few days alleged that the defendant, regardless of its that I didn't work on it at all. I did a duty to provide fit, suitable, and reasonably little of everything, but I did more folding safe machinery and appliances with which i and shaking out than I did feeding.” At the she could perform her duties while at work time a Mrs. Prickett, acting as "forelady," for the defendant, failed and neglected so to gave her orders to work on the mangle in do, but, on the contrary, at the time the in- the absence of the foreman. “About onejury occurred it did carelessly, negligently, half of the time I was there I didn't work and recklessly furnish and provide an un- on the mangle at all. No more than three safe, defective, and dangerous mangle for · or four days out of the week would I feed the her to do her said work upon, and directed mangle, and sometimes I didn't do that, but her to work with such dangerous and unsafe helped on it. I didn't feed on it as much machine; that it was dangerous, unsafe, and as I folded or shook out. On the same day defective in this: that it had no reasonably we might do some feeding, some folding, safe and proper "guard,” such as such ma- and some shaking out. There was a guar! chines should have, the guard being for the across the mangle, but the guard was sprung special purpose of protecting workmen in in the center. The guard is a brass rail operating the machine; that the guard was that goes along over the brass plate that twisted and bent out of its proper shape, so you push the clothes in under. At the ends that it furnished little or no protection; that, [of the guard] I could only just get my as a result of the guard being twisted and fingers under it, but in the center I could bent, the machine became dangerous, defec- easily put my hand under it. When the tive, and unsafe, by reason of which the in- guard rail was turned down you could not jury was occasioned. The defendant admits put anything under it, so it must have been the employment and injury, but denies all sprung an inch or more. When I was emthe other material allegations of the com- ployed there the guard was kept turned up. plaint. "Further answering the said amend- I never had any trouble in operating the ed complaint, the defendant avers that such mangle.

mangle. On the 1st day of May I was hurt injuries as the plaintiff received were re- on it. We were putting some tablecloths in. ceived in consequence of the ordinary risk The man stood at my right. He was boldattendant upon the employment in which she ing one end of it and I was holding the was engaged, and for which she was em- other, and we put it through the second time. ployed, and which she had assumed; and and it was wrinkled in the center, and I that whatever defects there may have been had my right hand holding it down in the in the said mangle, if there were any, were center to go smooth, and the first thing I fully known to the plaintiff at the time she knew, my right hand was caught between was injured and for a long time theretofore." the rollers. The rollers were hot, being Defendant also pleads contributory negli- heated with steam, and revolving fast. My. gence. No point is made in the brief as to hand went up to the wrist.” Again she her alleged negligence. A replication was stated, “I could not get my fingers under filed denying the new matter of the answer. more than half way" at the ends of the

As to the facts in the case: It is undis- guard rail. The distance between the guard puted that the plaintiff was seriously in- rail and the rollers was about three or four jured. The plaintiff was in her twenty

was in her twenty- inches. The rail protects the hand by striksecond year when she was hurt. In additioning it, and when the hand strikes the rail, to the facts alleged in the complaint, the cir- one would know that the hand cannot be (cumstances further appearing from plaintiff's | put further under and "you would pull it own testimony are as follows: She says back very easily.” At the time she was pay

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ing strict attention to her work, trying to been known to it. There is not any preget a wrinkle out of the tablecloth. "I

sumption that the defendant in such a case have seen the mangle at 'Beck's' laundry knows of latent defects, if any. The comoften, and I saw it when they first put it up. plaint alleges sufficient to show that this I had worked for or with Mrs. Beck. I was a patent defect, and therefore it folworked at the old Parisian laundry. That lows that defendant was charged with knowlwas about five years ago, if I remember right. edge of its existence. But in this case the I was employed at the laundry at that time. defect was apparent to any person looking I worked there from June until December, at the machine, and there is sufficient alfive years ago. I was neckband ironer there, legation of knowledge on the part of defendand occasionally I would be sent over to the ant. mangle, but I almost always folded there. The defendant attempts in its answer to If I were operating the neckband ironer and make two defenses: (1) Contributory neglithat work was completed, I was sent to the gence on the part of the plaintiff ; and (2) mangle. I seldom worked at the mangle at assumption of risk, the latter being the one Beck's. I don't believe I ever fed on it. I

relied upon.

The facts in this case show that saw the machine operate while there. That Miss Coulter, without compulsion, worked was in 1901.” After quitting Beck's she several times a week during a period of about went later to work for the Union laundry, two months upon and about this machine, which was the old Parisian laundry. "I had and that she was thoroughly familiar with worked at that place about two years before. the construction and operation of the same. They had the same instrument the Union The defect was known to her from the belaundry had. I am certain that the guard ginning and had been called to her attenrail was bent in the middle * *

and I tion by her fellow operators at the start. often heard the girls speak about it, and you She 'saw the defect and she states that she could easily see it was bent. I knew it was knew the danger to herself. She was 21 bent some when I went to work there. It years of age, and had worked for 14 months had been that way of my own knowledge. in laundries which had these machines. She Any one operating the machine could see had worked on a mangle at another place. that it was bent. I am positive of that. I Query: Did she assume the risk? She saw didn't work more than 14 or 15 months in the defect and realized the danger to herlaundries altogether. I knew

if self, and continued in the employment at this the hand should go between these two rollers machine for a long period of time until she it would be squeezed, and, of course, burnt." was injured. Section 2662 of the Civil Code

A very able brief has been filed by each is as follows: "An employer must in all of the contending parties. The case was cases indemnify his employé for losses caused tried in the district court in Helena, in de- by the former's want of ordinary care." The partment No. 1. On motion, a nonsuit was position of the respondent here is that this granted. The case was afterwards trans- section precludes any defense on the part ferred to department No. 2, and a new. trial of the defendant employer, if he has not used was granted. The appeal is from the order ordinary care in furnishing ordinarily safe granting a new trial.

appliances. There is not any point made in Seven specifications of error are set out in this case, and the evidence does not disclose the brief of counsel for the appellant, the any facts to support it, that Miss Coulter defendant company. The first one

that is to had notified the defendant company of the say, that the court erred in granting respond- defect and danger and had been promised ent's motion for a new trial-includes all.

that it should be remedied. And, even if she The first point raised is that the statement had, under the authority of Limberg v. Glenon motion for a new trial does not contain

wood Lumber Co., 127 Cal. 598, 60 Pac. 176, any recital that all the evidence introduced 49 L. R. A. 33, and others too numerous to at the trial is contained therein, and that

mention, she would only be excused for rethe only thing in the record to lead to such

maining in the dangerous employment for a conclusion is the certificate of the judge

reasonable period after such notification of settling the statement on motion for a new the employer and his promise to remedy the trial. All that is necessary for us to say same. No such condition is shown in this on this point is that it has been heretofore

case. settled by this court, and that it is no longer If there were conflicting testimony as to a matter of dispute, rightly or wrongly, that, whether or not this girl saw the defect when the judge in making his certificate (set- and realized her danger and was, because tling the statement) adds to it a recital that

of want of age or inexperience, incapable of “the foregoing statement contains all the evi- arriving at a correct conclusion as to the dence, it is sufficient. Passavant v. Arnold, situation, then such a case should have been 34 Mont. — 87 Pac. 905.

submitted to a jury under proper instrucThe second point is that the complaint is tions. But the testimony is all one way, in

, insufficient in that it does not state that the disputably supporting the theory of appellant defect in the mangle was known to the re- that respondent knew and realized the despondent company, or that it ought to have fect and danger incident thereto, then, in

case the cause had been submitted to a jury, there being no conflicting evidence on the subject, if the jury had found for the plaintiff, it seems to us that the court would have been compelled, on a proper motion, to set the verdict aside and grant a new trial. Such being our view, it seems to us that there is no other conclusion to draw than that the court should have taken the case from the jury, as it did. Respondent's counsel in his brief says: "The testimony fully shows that the guard was in a dangerous and defective condition during the entire period of time plaintiff worked for defendant, and everybody knew it.” In other words, the facts in the case as disclosed show that plaintiff knew the danger and assumed the risk. Thereby she made a contract, not against public policy as appears to us, to assume such risk.

We do not think that the defense of assumption of risk is pleaded explicitly in proper form and language, but, the case having been tried upon that theory of the defense, and the plaintiff's testimony showing that she had no case, nonsuit was proper although that defense was not properly pleaded. Bier v. Hosford, 35 Wash. 544, 77 Pac. 867. Under a statute similar to ours, adopted with the Codes of California of 1872, the Supreme Court of that state 27 years thereafter—that is, in 1899—in a personal injury case (Limberg v. Glenwood Lumber Co., supra), held that: “Notwithstanding the negligence of a master in furnishing the servant with defective appliances, the servant assumes the risk of working therewith, and impliedly agrees to release the master from liability therefor, if he either continues to use them with knowledge of their dangerous character and without objection or protest, or continues to use them with like knowledge for an unreasonable time, after notification given to the master of their defective character, and after the servant has no right to expect that the defect will be remedied.” The court says that it is not a question "of contributory negligence upon the part of the plaintiff, but rather: Did plaintiff assume the risk of working with these defective appliances? If there had been an express contract between the master and servant that the work should be done without a seat to the wagon, and with these identical lines, clearly that agreement would have barred a recovery in this action.

While the servant only assumes the dangers and risks necessarily incident to the work to be performed, he may, by contract, either express or implied, also assume the risk of working with defective appliances. Indeed, many cases go further and sustain the proposition that, where the servant proceeds at the outset to perform his work with defective appliances, having knowledge of the defect, then an implied contract arises to the effect that he assumes the risk-especially so if he is aware of the danger surrounding him by reason of the defect-and to say that the

servant assumes the risk is but another way of saying that he impliedly agrees to release the master from liability.

* And we know of but a possible exception to the rule, and that would be a case where the servant, though aware of the defect, was not aware of the danger incident to it. That exception cannot be urged here.” This Limberg Case was one in which plaintiff sued for damages for injuries alleged to have been caused by the want of ordinary care on the part of the defendant in that he failed to furnish ordinarily safe appliances to the plaintiff after notification of the alleged defects, in that Limberg, being a driver of a lumber wagon, had furnished to him driving lines which were too short and a wagon without a seat, the allegation being that, because of these defects in the appliances, he, under certain circumstances, fell from the wagon and received serious injuries. The California Supreme Court, in Ilennesey v. Bingham, 125 Cal. 635, 58 Pac. 200, and Matthews V. Bull (Cal.) 47 Pac. 775, while considering section 1971, Civ. Code of California (similar to our section 2662, supra), recognized the doctrine of assumption of known risk as applicable where there has been that want of ordinary care mentioned in section 1971 (our section 2662). The clear inference to be drawn from the language of this court in Coleman v. Perry, 28 Mont. 1, 72 Pac. 42, is that the doctrine of assumption of risk applies in this state under our Code in such a case as the one before us now. The injury occurred in 1896, but section 2662, supra, was not cited to the court in the Coleman Case. The section has never, since its enactment in 1895, been invoked to this court except in the case now before us. In volume 20, Am. & Eng. Enc. Law (2d Ed.) p. 124, under the head of "Master and Servant" is found this statement: "If a servant knows of the danger in prosecuting the master's work, or if it is so patent that an ordinarily prudent man would have seen it, and he continues in the employment, without complaint, or without assurance of the master that the danger will be lessened or obviated, he cannot hold the master liable for injuries received in such employment, and the rule is the same with respect to those risks which first arise or become known to the servant during the service as to those in contemplation at the original hiring.” In support of this statement are cited Limberg v. Glenwood Lumber Co., supra, and several hundreds of cases from 40 states and territories, and from England and the United States. We do not think that the rule was changed by the adoption of section 2662.

The law being, in our opinion, as we have stated it and the facts being uncontroverted, there seems to be no other conclusion to ar. rive at than that the assumption of risk appeared as a matter of law and the case was not one for the jury, and that the nonsuit was properly granted on motion, and that

the motion for a new trial was erroneously | the risk: to which the servant is exposed are granted.

not ordi: cry ones and the master must inReversed and remanded.

demnify him. This is the language of sec

tion 2602 above, in terms so plain that it BRANTLY, J., concurs.

seems to me they cannot be misunderstood.

To say that a servant, then, assumes any IIOLLOWAY, J. I dissent. The principal other than ordinary risks of the business in reliance of counsel for appellant, Union Laun- which he is engaged, seems to me to render dry Company-in fact, for all practical pur- these two sections absolutely meaningless. poses it may be said, the only reliance—is The Legislature evidently intended that these upon this proposition: That, although the two sections, with section 2600, should form risk to which Miss Coulter was exposed was a. complete Code upon the subject of the masan extraordinary one, still it was assumed by ter's liability to the servant. The reason for her by reason of the fact that such risk was the rule established by the Code is that asknown to her and the danger fully appreciat- sumption of risk is a matter of contract, and ed by her. The majority opinion declares at the time of making the contract of emthat proposition to be the correct rule of law ployment the parties cannot be said to have in this state. In my opinion, it is altogether in contemplation any other than ordinary impossible to reconcile such a conclusion with risks. Into every contract of employment the provisions of our Civil Code. Independ

Independ- there is, then, implied on the part of the masently of the statute, the majority opinion ter, the promise to exercise reasonable care to states a rule which has been quite generally furnish the servant with a reasonably safe followed, though, in many instances, with place in which to work, reasonably safe apsome modifications, by the courts of this pliances with which to work, and reasonably country and in England. It may be said to .

competent fellow servants with whom to work: be the common-law rule; but the mere fact and on the part of the servant there is the that this rule is in effect in every state in implied agreement that he will assume the the Union where there is no statute upon ordinary risks of the employment, but, as the subject is no argument in favor of its said above, the servant's obligation only beenforcement in this state, where we have a gins when the master's ends. statute declaring for a contrary doctrine.

So far as our investigation discloses, the Sections 2661, 2662, 4651, and 4652, among only other states having similar statutes are: other things, provide:

North Dakota, South Dakota, and California, “Sec. 2661. An employer is not bound to in- and in not a single instance in any of these demnify his employé for losses suffered by states can it be said that a case has been dethe latter in consequence of the ordinary risks cided where the question of the servant's asof the business in which he is engaged.

sumption of an extraordinary risk has been "Sec. 2662. An employer must in all cases considered with reference to the statute. In indemnify his employé for losses caused by Matthew's v. Bull, the court was considering the former's want of ordinary care.”

the question of the assumption of an ordinary “Sec. 4651. * * * In this state there is risk. In Hennesey v. Bingham, it is only by no common law in any case where the law is the merest inference that it may be said that declared by the Code or other statute.

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the court expressed itself upon the question "Sec. 4652. *

The Code establishes now under consideration, and even such exthe law of this state respecting the subjects pression is nothing but dictum, as it was not to which it relates. * * * "

involved in the decision of the case. In LimOf course, if the provisions of our Code berg v. Glenwood Lumber Co. the statute were the same as the common law, they would is not even mentioned. Our sections above be construed as continuations thereof, but that were not mentioned or considered in Coleman they are not such seems to me too plain for v. Perry, and, while it is true that for 11 argument. Section 2661 simply declares, in years these personal injury cases have been effect, that the employé only assumes the ordi- considered in this state apparently without nary risks of the business. The words "ordi- any reference to our statute, this fact does nary risks" as therein used, are to be given not appeal to me as an argument in justifithe meaning which they generally had at the cation of a decision, the direct effect of which, time of the adoption of the Code. "Every in my judgment, is to repeal section 2662 risk which an employment still involves after above. In my judgment, if our Code sections a master has done everything that he is bound 2661 and 2662 mean what they say, there are to do for the purpose of securing the safety not any circumstances under which a servant of his servants is assumed, as a matter of impliedly assumes an extraordinary risk law, by each of those servants. The risks which are thus considered to have been assumed are those which are commonly

(34 Mont. 581)

STATE v. LEE. described as 'ordinary.'” 1 Labatt on Master and Servant, $ 3. In other words, the serv

(Supreme Court of Montana. Dec. 14, 1906.) ant's liability begins where the master's obli

1. CRIMINAL LAW--APPEAL-BILL OF EXCEP

TIONS-SETTLEMENT—NOTICE. gations end. But, if the servant's injuries

Where the record on appeal does not disare attributable to the master's negligence, close that the two days' notice to the county

87 P.-62

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attorney of the presentation of the bill to the judge or to the clerk for settlement, as required by Pen. Code, $ 2171, the bill must be disregarded. 2. SAME-RECORD-TRANSCRIPT.

Where the record of a former trial of the defendant copied in the transcript is not authenticated by bill of exceptions, or identified in any way, it cannot be considered for any purpose.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, $ 2786.] 3. SAME – INSTRUCTIONS CREDIBILITY OF WITNESSES.

Code. Civ. Proc. $ 3390, makes the jury the judges of the value of the evidence but requires them to be instructed on proper occasions that a witness, false in one part of his testimony, is to be distrusted in others. The court instructed that "you are to determine what weight you will give to the testimony of any witness, but, if you should be satisfied that any witness has knowingly and wilifully testified falsely to any material matter, you have the right to reject the whole of the testimony of such witness, unless, on any point, such testimony is corroborated." Held, that such instruction was not to be construed as directing the jury that they could not reject any of the testimony of a witness who had committed perjury, if on any point he was corroborated, but the only restriction was that they were compelled to consider the testimony, but might give it such credit as they thought it entitled to, and, while not technically correct, was not substantially erroneous. 4, SAME--INSTRUCTIONS.

Where defendant, L., and Y. were informed against jointly for robbery, but each claimed a separate trial, an instruction that, if Lor Y., or either of them, did not take any property from the possession of the witness, the jury must find defendant not guilty was erroneous for permitting the acquittal of L. if the evidence showed that Y. did not take the property. Milburn, J., dissents.

Appeal from District Court, Silver Bow county; Hon. Michael Donlon, Judge.

Marion Lee was convicted of robbery, and, from the judgment and from an order denying a new' trial, he appeals. Affirmed.

Maury & Hogevoll, for appellant. Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

copied into the transcript without authentifcation. The Attorney General insists that the matters embodied in the bill of exceptions and the record of the former trial may not be considered, for the reason that it does not appear affirmatively that the two days' notice of the county attorney of the presentation of the bill to the judge, or to the clerk for the judge, for settlement, required by section 2171 of the Penal Code, was given, and that the record of the former trial is no part of the record of the trial of this cause.

The record before us does not disclose anything on the subject of notice to the county attorney of the settlement, and, under several decisions of this court directly in point, the bill must be disregarded. State v. Gawith, 19 Mont. 48, 47 Pac. 207; State v. Moffatt, 20 Mont. 371, 51 Pac. 823; State v. Stickney, 29 Mont. 523, 75 Pac. 201; State v. Kremer, 33 Mont. -85 Pac. 736; State v. Morrison, 34 Mont. -, 85 Pac. 738.

The record of the former trial copied into the transcript, not being authenticated by bill of exceptions or identified in any way, cannot be considered for any purpose. At the hearing counsel for defendant offered to amend the transcript by attaching thereto orders of the court extending the time for settling the bill, made subsequent to the judgment, which show that the county attorney was present and took part in the proceedings had at the settlement, and asked to be allowed to make the amendment. The request was denied by the court, for the reason that these orders are not a part of the record and do not supply the deficiency.

This condition of the record leaves for consideration only the particular instructions complained of. Touching the credibility of witnesses and the functions of the jury in weighing their evidence, the court gave the following instruction: “No. 8. A witness is presumed to speak the truth; this presumption, however, may be repelled by the manner in which he testifies, by the character of his testimony, or by the evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence. You are the exclusive judges of the weight of the testimony and the credibility of witnesses. You are to determine what weight you will give to the testimony of any witness, and you will be slow to reject the testimony of any witness, and be careful, and, if you can reconcile any statement and all the testimony or any of the testimony of any witness with the facts and with the probable motives, it will be your duty to do so, but, if you should be satisfied that any witness has knowingly and willfully testified falsely to any material matter in this case, you have the right to reject the whole of the testimony of such witness, unless on any point such testimony is corroborated by the facts and circumstances of the case or other credible evidence.” It is said that the last clause of this statement is, in effect, a direction to

BRANTLY, C. J. The defendant was here tofore convicted of the crime of robbery, but, on appeal to this court, the judgment of conviction was reversed because of a variance between the allegations in the information and the proof as to the name of the person injured. State v. Lee, 33 Mont. -83 Pac. 223. When the case was remanded, he was tried on an amended information, and again convicted. He has appealed from the judgment and from an order denying him a new trial.

Counsel for appellant assign and argue in their brief many alleged errors, four of which are upon one instruction submitted and others refused, and hence are presented by the record proper, or judgment roll, while the rest are sought to be presented by a bill of exceptions and what purports to be the record of the proceedings of the former trial,

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