The evidence was insufficient to justify the verdict: Kelly v. Silvers Springs Co., 34 Am. R. 615. ·

The damages are excessive: Kansas Pac. R'y v. Peavy, 9 Am. and Eng. R'y Cases 269; R. R. Co. v. Young, 8 Kansas 659; H. & J. C. R. R. Co. v. Buck, 9 A. and E. R. R Cases 369; Union Pacific R. C. v. Hurd, 7 Kansas 390; C. & R. R. Co. v. Jackson, 1 Am. R'y Cases 571.

The instructions given by the court on its own motion. and at request of plaintiff were erroneous: 1 Wharton on Negligence 1; Ince v. East Boston Ferry Co. 106 Mass. 149.

Mr. Arthur Brown, for respondent.

No notice is required to be given of defective machinery to the employer; it is the duty of the employer to exercise reasonable care and prudence in seeing that his machinery is perfect. If he fails to do this, and the machinery is imperfect, although without actual notice to him of the defect, he is liable to his employees: Patterson v. R. R. Co., 76 Pa. St. 389; S. C. 18 Am. Rep. 412; Noyes v. Smith, 28 Vt. 59; Huff v. R. R. Co., 100 U. S., 215; Cooley on Torts, 556 and other cases there cited.

The doctrine of contributory negligence does not apply to injuries received by an employee through the defective machinery of the employer: Snow v. R. R. Co., 8 Allen, 441; Ills. Cen. R. R. Co. v. Welsh, 52 Ill., 183; Cooley on Torts, 557-8, and notes.

2. The doctrine of contributory negligence is a question for the jury, in every case where the negligence does not arise as a matter of necessity from the facts admitted or proven, and is to be determined by inferences from the conduct of persons in trying or dangerous situations. If it involves a question of fact, of prudence, or duty, or danger, or belief, or opinion, then the jury are to judge whether the party injured had such belief, opinion, fear, etc., and it is a question of fact for the jury even though the elements and outside observable facts are admitted or proven: R. R. Co. v. Stout, 17 Wall., 657; Huff v. R. R. Co., 100 U. S., 215; Lanning v. N. Y. Cen. R. R.

Co., 49 N. Y., 521; Ford v. R. R. Co., 110 Mass., 261; Snow v. R. R. Co., 8 Allen, 441.

3. Mere knowledge on the part of an employee that the work is dangerous, or that prior accidents have happened, that the employer is negligent, and that some of his machinery is defective, is not sufficient to charge him with negligence, for defects in the machinery of which he did not have actual notice. I refer to the cases above cited; also 2 Thompson on Negligence, sec. 1010; Hudelston v. Lowell M. Shop, 106 Mass., 282; 59 N. Y., 517; 53 N. Y., 551; 73 N. Y., 40.

The burden of proving contributory negligence is upon the defendant: 100 U. S. Rep., 225.

The specifications of error are too general: Danielson v. Dyckman, 25 Mich.; Lincoln v. Claflin, 7 Wall., 138; Hawkins v. Abbott, 40 Cal., 639; 3 Estee 300, 363, 365, 27 Cal., 376, 408; Estey v. Larsh, 21 Ind., 183; Peck v. Hensley, 21 Ind., 344.

As to instructions given and refused, see Cooley on Torts, p. 555; 8 Allen, 441; R. R. Co. v. Welsh, 52 Ill.

The damages in the case were not excessive: 55 Ill., 493. To render damages excessive it must appear that the jury were misled by passion, prejudice or ignorance: 3 Sutherland on Dam. 730; Corcoran v. Harran, 55 Wis., 120.

BOREMAN, J.:

The respondent, who was plaintiff below, brought an action in the first district court, against the appellant for personal injuries received in a coal mine owned and worked by the appellant. The injuries consisted of the cutting and maiming of the respondent's right foot, by coal cars, necessitating amputation. The damages were laid at fifty thousand dollars. Answer having been filed denying the allegations of the complaint, a trial was had before a jury, resulting in a verdict and judgment in favor of the respondent for ten thousand dollars damages. At the close of the evidence for the respondent, the appellant had made its motion for a non-suit, which was by the court overruled

After verdict and judgment, the appellant moved for a new trial, which was also overruled. Thereupon, the case was brought to this court by appeal from the judgment and from the order overruling the motion for a new trial.

1. The principal ground urged by the appellant for a reversal of the order and judgment of the court below, is the alleged insufficiency of the evidence to justify the verdict.

(a) Under this head it is claimed that the evidence failed to show that the accident resulted from the fault or negligence of the appellant. It appears, and did so appear, when the motion for a non-suit was made, that the accident was caused by the breaking of the car-couplings and consequent falling of the cars upon the respondent's foot; that the couplings, the links and draw-bar, broke, because of the defective or imperfect character of the iron of which they were made, and that the company, the appellant, had knowledge of the imperfection of the iron. The attention of the superintendent was called to it. He had charge of all the materials and works at the mine, and under him all employees labored. To the workmen he was the mouthpiece, the representative of the company: Beeson v. Green Mountain M. Co., 57 Cal., 20; C. M. and St. P. R. Co. v. Ross, 112 U. S., 377.

The position of the appellant, is, therefore, untenable on this point, as the evidence did not fail to show that the accident resulted from the fault or negligence of the appellant.

(b) The second reason offered to show the insufficiency of the evidence, namely: that the respondent, when the accident occurred, knew or had the means of knowing, and ought to have known, of the defects in the couplings, seems likewise, untenable. The respondent, as a witness, says that he knew nothing of the imperfect character of the couplings, and no such knowledge is brought home to him by any other evidence; nor does anything appear to indicate that in the nature of things he ought to have known of it. The law makes it incumbent upon a workman to know whatever is embraced within his special line of employment, but it is not required of him that he should

know those things which belong wholly to another and different branch of service. If it had come within his line of duty in his occupation to have examined into the structure and nature of the couplings and of the iron composing them, there might be some reason for holding him responsible for not knowing of the defects therein. But his duties were far different, and did not require or authorize him to have anything whatever to do with the couplings. He was employed as track-fixer, and to assist in replacing upon the track the cars which should get off at the curve in the roadway: Ill. C. R. R. Co. v. Weld, 52 Ill., 183; Noyes v. Smith, 28 Vt., 59.

Beyond this, when the respondent entered into the service of the company, he took upon himself the natural and ordinary risks and perils incident to the performance of his services, but he never engaged to risk the perils of imperfect material and burnt iron, knowingly used by the company. It was the duty of the company to exercise. reasonable and ordinary diligence to furnish sound material and machinery, and not to use such as were unsound and imperfect, after the defects had been brought to its knowledge. The respondent had the right to presume that the company had used such diligence: Beeson v. Green Mountain Co., 57 Cal., 20.

This being a case where defective material caused the injury, the rule which exempts the master from liability for an injury to a servant, caused by the negligence of a fellow servant, does not apply. The negligence is that of the company, and not of a fellow servant: Trask v. Cal. S. R. R. Co., 63 Cal., 96; Hough v. Railway Co., 100 U. S., 213.

(c) It is urged that the evidence shows negligence in the respondent himself, and that his negligence contributed to produce the injury. It is a well settled rule that in such a case as the one before us, if the party seeking relief was negligent, and such negligence amounted to an absence of ordinary care, and directly, immediately or proximately contributed to the injury, relief would be denied: Strong v. St. P. R. R. Co., 61 Cal., 326. But, according to this rule, nothing that the respondent did, at the time of the

accident, so far as appears by the evidence, would relieve the appellant of its responsibility. The respondent had been called from his work as track-fixer, to go to the other (the west) side of the track, and help to replace a car upon. the track. After this was done, his other duties required him to re-cross the track to the east side. The facts, so far as they appear, tend to show that he was taking a step in the direction of the east side. Whether he had started across too soon, or not soon enough, or at all, does not appear. His duties had called him to the place where he was hurt. If he was negligent in staying or getting away from that point, the burden of showing it devolved upon the appellant. Where the facts proved by a plaintiff do not, upon their face, show negligence in the plaintiffs, the opposite party, if he relies upon the fact of negligence, must show it: Robinson v. U. P. R. R. Co., 48 Cal., 409; 426; McQuilken v. C. P. R. Co., 50 Cal., 7; McDougall v. C. P. R. Co., 63 Cal., 431. But this is not a question for the court. Whether the defendant was negligent or not, and whether his negligence, if any existed, directly or proximately contributed to the injury, were questions for the jury under instructions of the court; and such matters cannot be taken from the jury unless the facts are clearly settled and the course which common prudence would dictate can readily be discerned. Negligence is generally a mixed question of law and fact, and sometimes, although all the facts are admitted, the question arises whether the act imputed as negligence was such as persons of ordinary prudence would have performed under the circumstances, and, unless the question is clear of all doubt, it is the duty of the court to leave it with the jury, and not to disturb their finding: Fernandez v. S. P. R. Co., 52 Cal., 45; Jamison v. S. J. and S. C. R. R. Co., 55 Cal., 593; Nehrbas v. C. P. R. R. Co., 62 Cal., 320; Davis v. U. S. R. R. Co., 3 Utah, 218.

In the case under consideration, if the facts were all admitted, the question of negligence would probably have to be settled by inference from them; and in that event, the jury, and not the court, should pass upon it. The court could take the question from the jury only in case the