author: Osteandee, J.

text:
    RADIC v. THOMAS JACKSON & CO.
    1. Master and Servant — Infant—Minor, Employment of — Hazardous ' Occupation — Dangerous Employment.
    On the trial of a personal injury action for the loss of two fingers of a minor under the age of 18 years, in which the proofs showed that plaintiff was employed at the time of his injury in removing pieces of wood from the table of a machine known as a tenoner, and was obliged to stand between rapidly moving belts 'from three to four feet apart, the upper part of which revolved towards the machine, that his hand came in contact with the knives of the machine in some manner that he could not explain, as he turned away from the machine to remove a pile of boards which he had gathered together, there was sufficient evidence of the hazardous nature of his employment to warrant the court in submitting the issue to the jury.
    2. Same — Contributory Negligence — Due Care.
    The question of plaintiff’s contributory negligence was also a question of fact.
    3. Same — Guarding Knives — Trial.
    The court did not err in declining the request of the defendant to charge that no duty devolved upon the master to guard the knives, and in limiting the issue to the negligence relied upon by plaintiff, thq instructions advising the jury that all existing conditions were to be considered in determining whether the employment was hazardous.
    4. Same — Instructions.
    Defendant’s objection to the charge of the court that it permitted the jury to find for plaintiff unless there was absolutely no chance of injury near the place in which plaintiff worked, was untenable where the court instructed the jury at length as to the meaning of hazardous employment as described in Act No. 220, Pub. Acts 1911 (2 How. Stat. [2d Ed.] § 4017), as to the burden resting on plaintiff to show the existence of hazard greater than in ordinary vocations, and where the court charged that he could not recover if he failed to exercise due care, that the fact of his injury did not in itself establish the hazardous nature of the employment, that the proximity of the pulleys and belts to plaintiff’s position was not evidence of negligence unless the jury should ñnd that they were an element of danger and in their location, etc., contributed to the injury.
    Error to Saginaw; Kendrick, J.
    Submitted November 26, 1913.
    (Docket No. 31.)
    Decided March 26, 1914.
    Case by Louis Radie, by next friend, against Thomas Jackson & Co., Limited, a copartnership association, for personal injuries. Judgment for plaintiff, and defendant brings error.
    Affirmed.

      Humphrey, Grant & Humphrey, for appellant.

      Purcell & Travers, for appellee.
   Osteandee, J.

The declaration contains two counts, upon the second of which the case was submitted to the jury. In that count, two duties which the defendant owed to plaintiff are alleged, one a duty not to engage him in any hazardous employment, the other to cover, guard, and protect the revolving knives upon the machine at which plaintiff was set to work. As to this second allegation of duty and the fact which it assumes, it and the evidence upon the subject introduced at the trial were treated as an element of hazard, and not as establishing a duty and breach of it for which plaintiff was entitled to recover.

Two principal questions were submitted to the jury: First, whether plaintiff was employed in a hazardous employment; and, second, whether his own negligence caused or contributed to his injury. It is the contention of the defendant that upon neither of these propositions was there any question for the jury, who should have been instructed as a matter of law both that plaintiff was not employed in any hazardous employment and that he had not established the fact that his own negligence did not contribute to his injury. It is a further contention of defendant that the undisputed evidence conclusively establishes the contributory negligence of plaintiff.

Two errors are assigned upon the charge of the court as given, which will be considered in their order. Decision of the principal questions involve a careful reading of the testimony given at the trial. The statute (Act No. 220, Pub. Acts 1911, § 11, 2 How. Stat. [2d Ed.] § 4019) provides that no male under the age of 18 years shall be employed in any hazardous employment; the legislature meaning, we assume, an employment which is in fact hazardous. Plaintiff was born December 26, 1895. He was inj ured March 1, 1912. At the time of his injury he was 4 feet 10 inches in height, weighed 90 pounds, was in sound health, and was physically able to perform the work at which he was set. He had been to school five years, passed the fifth grade, had studied geography, arithmetic, drawing, and other branches. Receiving in September, 1911, a permit to work (section 10, Act No. 285, Pub. Acts 1909, 2 Plow. Stat. [2d Ed.] §4018), defendant set him to work upon a machine called the sticker, where he worked for about two months, when he was employed to work upon a machine called a tenoner, which was the employment in which he was injured. Upon this machine he worked daily until he was injured. The machine was a Hayes double-end tenoner, a standard machine, purchased by defendant in 1902, made of iron and steel throughout, about 8 feet long, and so constructed that in its operation it fashioned a tenon at each end of each board put through the machine. The only knives outside of the machine, extending beyond the dimensions of the frame of the machine, are called cope knives. They cut the sticking or molding at both ends and on both sides of the board. That is to say, there were two knives at each side of the machine, one above and one below, secured to a shaft, and revolving horizontally.

When the plaintiff was injured, these sets of knives were about 28 inches apart and in plain sight. Plaintiff knew about them, knew how they worked, knew he would be injured if he touched them.

Boards intended to be treated by this machine are passed through it automatically by means of an endless chain which carries them to and beyond the knives and delivers them free at the other end of the table. To hold the boards firmly in position when they engage the knives, there are two pressure bars, one on each side of the machine. Once a board has become engaged with the chain and under the pressure bars, it cannot be removed or hurried until, by the movement of the chain, it is delivered free from the pressure bars, and a few inches beyond them, at the end of the table. Plaintiff’s duty was to take the boards as they came from the machine, and, carrying them a short distance, pile them up on the floor. In doing his work, he would usually carry perhaps four or five boards, piling one upon the other as they came through the machine. The pressure bars are 18 inches apart, 2 inches in thickness, and 33 inches long, more than a foot high in the center, and 5 or 6 inches high at the ends. As has been indicated, the cope knives revolve outside of these bars. At plaintiff’s end of the table, it was 6 inches from the point of the knives nearest to the plaintiff to the ends of the pressure bars nearest to the plaintiff. What is called the table at plaintiff’s end of this machine was simply two iron bars, about 18 inches apart, on the same level as the rest of the machine. Upon these bars the automatic carrier deposited the boards as they came from the machine, and from this so-called table the plaintiff was expected to pick up the pieces and carry them to the piles. Measured parallel with the side of the table, it is 26 inches from the end of it nearest to plaintiff to the knives. On each side of the machine, at the end where plaintiff worked, was a spindle, 6 inches beyond the end of the table and 15 inches away from the side of the machine. On each spindle were three pulleys and three belts; the two upper belts on each side running the cope knives. Where they pass around the pulleys, it is 24 inches, vertically, between the belts. As plaintiff stood at the end of the table, the belts revolved towards him and towards the knives. The space between these two sets of belts, in which space the plaintiff had to stand to do his work, was more than 3 and less than 4 feet. On the day plaintiff was injured, the material coming through the machine was 9 inches wide, 30% inches long, and 1% inches in thickness. It was plaintiff’s habit to pile these boards one upon another, taking a number of them on each trip from the machine, getting back to the machine before other boards had come through and had fallen upon the floor. In taking up the pile of boards which he had built, it was ■his habit to take hold of the ends of the boards and, instead of backing out from between the belts which were running on each side of him, to turn himself to the left in coming away from the machine. Uniformly boys have been employed at this machine; none had ever before been injured.

As we understand the record, the situation, when plaintiff was injured, may be described substantially as follows: He stood in a space something more than 3 feet wide between revolving belts. He would have been obliged to extend his right hand and arm to nearly its full length to have put his right hand in the knives. He was picking up boards which were delivered to him at a point where the edge of the board farthest from him was about 6 inches from the knives. He had made a pile of boards on the table. Taking hold of the ends of the boards, he turned to carry them out. In a manner which he is unable to describe, his right hand went , into the knives, and he lost two fingers of his right hand. As he stood erect at the end of the machine, the upper belts, revolving towards him and towards the knives, were about on a level with his shoulders; the space between the belts narrowing as it approached the knives. Aiding the description of the place and manner of the plaintiff’s employment, the trial court and this court had, among other things, pictures of the machine. While it appears that the work plaintiff had to do can be safely performed and had been theretofore safely performed, we are not satisfied that the employment was not hazardous, within the meaning of the statute. A slight movement of the body towards the moving belts was likely to result in harm to the employee. If there was contact of a rapidly moving belt with the arm or the hand of an employee, the consequences might be disastrous. If, as is probable, the plaintiff was injured because, in turning with his pile of boards, his right arm or hand was struck by a belt, it is not difficult to understand how his hand may have been, and probably was, instantly carried to the knives.

Whether, in view of all the conditions, including the age of the plaintiff, he was as careful as he should have been was also a question for the jury. And they might well have found, considering the space between the moving belts and the fact that plaintiff was injured as he was, although he is unable to describe how it happened, that his freedom from negligent conduct was established. His testimony amounts to this: That he was not conscious of any careless act or movement, did not put his hand in the knives, and cannot tell how it was carried to the knives. We think counsel is not warranted in saying that neither plaintiff nor any one else knew or would tell how the accident occurred, and that there was “no explanation of how this injury was caused.” Assuming that plaintiff told the truth, the explanation approaches closely to a demonstration. His hands were occupied with the boards, one hand at each end of them. As he lifted them, his right hand, or arm, struck the rapidly moving belt which moved close to his body and, at an angle, towards him and towards the knives. No one can read the record and examine the picture of the machine without being fairly convinced that in this manner, from this cause, the injury was received.

The court declined to instruct the jury, as requested by defendant, that no duty devolved upon defendant to further guard the knives upon the machine. It has been stated that plaintiff‘did not rely for a recovery upon a failure to further guard the knives. The court correctly directed and limited the attention of the jury to the negligence relied upon, and said nothing in the charge upon the subject of guards for the knives, except, and we think properly, that all conditions existing there were to be considered in determining whether plaintiff’s employment was or was not hazardous.

It is complained that the court, in instructing the jury, used language which, when contrasted with the plaintiff’s claim, was misleading and prejudicial to defendant. The language employed was:

“The defendant maintains and claims that it in all things provided the plaintiff with a safe place to work, and that the surroundings were in no way hazardous, and that all the various machines which were in use in and around the location of the employment or in any manner connected with his labor on that occasion were safe and in no wise hazardous to the welfare, life, or limb of the plaintiff; but that the in-, jury sustained was the result of the gross recklessness and carelessness of the plaintiff himself; that only by carelessness could he have sustained the injury of which he complains, one affirming and one denying.”

It is said that this amounted to a statement that it was necessary for the jury, to acquit defendant, .to find that it had established that there was absolutely no chance for injury anywhere in the locality in which plaintiff was employed, and that his recovery was not barred unless he was grossly reckless and careless. If this portion of the charge was alone to be considered, its propriety might well be challenged. But it does not stand alone. The court also said to the jury:

“I charge you that, within the meaning of the statute, a hazardous employment is one that is fraught with or exposed to hazard, peril, danger, or risk, in the ordinary course of conduct, and does not mean that the employment is hazardous because of the possibility of accident resulting from the ordinary operation of the machine or knives, or from a careless or negligent conduct of such employment.
“I charge you that, before you can find the defendant liable in this case, the plaintiff must satisfy you by the preponderance of the evidence that, in addition tQ proving that he himself was free from fault, he must also show to you that the employment at which he was engaged was hazardous; that is, exposed to hazard, peril, or danger greater than the ordinary danger in the ordinary vocations of life.
“I further charge you that the law under which this action is brought does not contemplate that capable, experienced young men above the age of 15 years, and under the age of 18 years, shall not be employed to operate or work near machinery; it simply contemplates that they shall not be émployed in an employment that is hazardous, within the meaning of the statute, as defined by me. Under the undisputed evidence in the case, plaintiff was employed in taking away boards from the tail end of what is known as a double tenoner machine, upon which were placed knives in certain positions, as have been shown to you, and upon which it is claimed, and I think admitted, he was injured. But in considering this you should take into account the character of the work which he was employed to do, the place in which he was employed to work, the character of the machinery which he was employed to work adjacent to, and the location of its parts, the knives and belts, and guards that have been shown to you which it is claimed protected the knives, and say from the evidence in the case, and from all the surroundings, and all the conditions, was the employment of the plaintiff of such character as to be hazardous employment, under the definition which I have given you.
“On the question of contributory negligence, I will also say to you, if you find that the injury plaintiff received was caused as a result of the negligence of the defendant in hiring him when under the age of 18 years, and setting him at work at a hazardous employment, as I have defined it to you, still you cannot return a verdict in his favor if you find that he was guilty of any negligence which contributed to his injury. In other words, if he has failed to establish that he did nothing to contribute to the injury, then he cannot recover. The fact that the plaintiff had an accident whereby he was injured is not evidence that the employment at which he was injured was hazardous. I instruct you that accidents may happen on all kinds of machinery, and in nearly every" vocation of life, and that the fact that such an accident has happened to the plaintiff is not conclusive evidence that the carrying away of the boards from the machine upon which the plaintiff was injured, in the manner that has been described to you, is a hazardous employment. The simple fact that an accident has happened to the plaintiff, who is a young man under the age of 18 years, does not make the defendant liable. And, if the young man received his injury as a result of an unavoidable accident plaintiff cannot recover, and the defendant is not liable.
“If you find that the plaintiff, while engaged in carrying boards from the machine to the piling place, as has been described before you, and performing his duty as has been set forth to you here, did not exercise proper caution and observation, such as an ordinarily prudent person of like years and experience and understanding of the plaintiff would and should have exercised, as the circumstances required, and you further find from the testimony that an ordinarily prudent person under like circumstances, of the age, experience, and intelligence of the plaintiff, under such circumstances would have guarded himself against injury from the knife upon which plaintiff was injured, and would have remained in a place of safety without especial care and attention, then it was the duty of the plaintiff to have done so, and the failure on his part to take such precaution would prevent his recovery.
“The burden of proving the issue in this case is upon the plantiff; that is, he must sustain and support every charge made by him by the fair preponderance of the evidence in the case. By the preponderance of ■evidence is meant, as I have stated, not that the greater number of witnesses must be produced, but only that the facts shall appear by the greater weight of the testimony submitted to you, as may seem to you most worthy of credit, under all the conditions and circumstances of the case. By the preponderance of evidence is really meant that it is more satisfactory and is more convincing to your minds on a given proposition than the opposite position taken.
“If you should find, therefore, after a careful consideration of this case, that the evidence is equally balanced, then you should find for the defendant, because it must preponderate in favor of the plaintiff before he can recover, and that as I have stated, upon every branch of the case and every issue.
“I charge you that the fact that the belt running on the pulleys coming out in close proximity to where the boy stood, and on each side of him, cannot be considered by you as evidence of any negligence upon the part of the defendant in this case for which the plaintiff would be entitled to recover, unless the same caused or contributed to the injury, or on account of the near proximity of said belts, unless you find the belts constituted an element of danger, and in their location and the conditions surrounding them contributed to the injury complained of, and otherwise should not be considered in any way by you as establishing liability against the defendant in this case.
“To make it clear to you, gentlemen, the mere fact that he employed this boy would in no way reflect upon the defendant, unless he put him at work in the manner as charged, where it was hazardous and dangerous. I charge you that the fact of the happening of this accident is no evidence that can be considered by y’oú as showing or tending to show that the defendant in this case had put this plaintiff at any hazardous employment, and that the happening of such accident is no evidence that the employment of the plaintiff by the defendant was a hazardous employment. That condition, standing alone, would not be any evidence which you should consider, but I instruct you that you may consider the fact of his injury there, in the manner in which it has been explained to you, as one element which you may take into consideration in determining whether the defendant was negligent in that employment.
“That you have no right to find a verdict in this case based upon conjecture, and not supported by the evidence in the case, and that the plaintiff in this case has no right to recover unless you are able to determine from the evidence just how the accident occurred, and that at the time of the happening of the accident the plaintiff himself was free from any fault or neglect upon his part which contributed to the injury which he received, and that, unless you so find, your verdict must be for the defendant of no cause of action.”

We do not believe the jury misunderstood the issues submitted, and it is clear that in some particulars the charge was extremely favorable to defendant.

We do not find reversible error made out, and therefore affirm the judgment.

McAlvay, C. J., and Brooke, Kuhn, Bird, Moore, and Steerb, JJ., concurred. Stone, J., did not sit.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    GORDON v. SHERMAN.
    1. Assisnment for Benefit of Creditors — Equity—Jurisdiction.
    Such jurisdiction as the court of equity may have had to entertain a bill filed by creditors of an insolvent to set aside certain proceedings and sales of the assignee for irregularities in his appointment and in the sales and for fraud, was derived from chapter 260, 3 Comp. Laws (§§ 9539-9552; 5 How. Stat. [2d Ed.] §14165 et seq.),

    providing for the regulation and enforcement of voluntary assignments for the benefit of creditors, and under which the assignment was made and filed: the court has power to direct and control the assignee in administering the trust. •
    2. Same — Parties—Bill in Equity.
    Creditors and persons claiming title to property through alleged improper conduct of the assignee are proper parties to such bill.
    3. Same — Claims.
    The court is not, however, authorized to adjudicate claims of third persons to the assigned property, unless parties concerned voluntarily submit themselves to the jurisdiction of the court.
    4. Same — Trespasser—Parties-—Judoment.
    A corporation that was interested in the proceedings only in that it was a trespasser on land belonging to the trust estate was not a proper party to the bill, but having submitted itself to the jurisdiction of the court by filing a cross-bill, it will be considered bound by any decree that may be entered.
    £. Same — Cross-Bill—Equity—Venue — Motions — Appeal and Error.
    Another defendant was entitled to object by timely motion to strike from the files the cross-bill of such defendant corporation, making the other defendants parties and requiring them to answer, being filed to quiet title to lands that were situated in a different county from that in which the suit was commenced; the practice was also proper, and the order made was final and appealable.

      Appeal from Menominee; Flannigan, J.
    Submitted November 4, 1913.
    (Docket No. 64.)
    Decided March 26, 1914.
    Bill by Alexander Gordon and others against James E. Sherman, Myron J. Sherwood, the Northwestern Cooperage & Lumber Company, and others to set aside the appointment of an assignee for the benefit of creditors of J. S. Edwards and cancel sales made by him. From an order granting the motion of the defendant Sherwood to strike from the files a cross- . bill of defendant Northwestern Cooperage & Lumber Company, the latter appeals.
    Affirmed.

      A. H. Ryall, for defendant Northwestern Cooperage & Lumber Co.

      M. J. Sherwood, in pro. per.

   Ostrander, J.

Complainants, who claim to be creditors of one John S. Edwards, set up in their bill of complaint, filed August 7, 1911, in the circuit court, in chancery, of Menominee county, that said Edwards October 7, 1887, made an assignment of his property to one Jacob F. Schafer for the benefit of creditors, according to the statute, filing the instrument in the circuit court for the county of Menominee, and said Schafer accepted the appointment and died before completing administration of the estate, leaving real and personal property belonging thereto undisposed of. Complainants, with numerous other creditors, proved their claims against the debtor, and are still interested in the assigned estate as creditors thereof. The undisposed of assets of the debtor consisted of lands in Dickinson and Iron counties in this State, and a claim against the Northwestern Cooperage & Lumber Company for alleged wrongful cutting and removal of timber from the Iron county lands. No successor to the said Schafer, assignee, has been appointed in any proper proceeding. But on November 21, 1907, two persons, claiming to be creditors of Edwards, filed a petition in the circuit court for said Menominee county, in chancery, asking for the appointment of a successor to said Schafer as assignee.. This petition, on the same day, without notice to complainants or other creditors of Edwards, was brought on for hearing, and an order was made appointing James E. Sherman, of Marquette, Mich., assignee in the place of Schafer.. Sherman filed a bond as required and assumed the administration of the trust. All proceedings to appoint Sherman assignee, and all proceedings taken thereafter in relation to property of the estate, are, it is claimed, without authority; the court not having acquired jurisdiction in the premises. The new assignee, Sherman, December 14, 1907, filed a petition in said court, setting forth that lands in Dickinson and in Iron counties remained undisposed of and assets of said estate, that the creditors of Edwards had not been paid, and asked for an order authorizing the sale of the lands at public auction. Such an order was made December 24, 1907; the places of sale being designated therein and the manner and notice of sale stated. Said Sherman caused notices of the sale to be published and posted and sent to creditors, but the notices included other and different lands than those which belonged to said Edwards and his said estate; the notices did not in form comply with said order of sale; and certain lands belonging to the estate were not described in the said notices. A sale was held at the time and places fixed, was conducted by said Sherman, and the lands belonging to the estate were then and there sold for $1,165, of which sum the Iron county lands brought $1,040. A report of the sale was made and filed May 7, 1908, in which it was stated that the lands had been fairly struck off to the persons named as purchasers for the amounts stated therein, and on the same day an order was entered confirming the'sales and directing Sherman to issue deeds to purchasers, and further to proceed with diligence to collect or adjust the claim against the Northwestern Cooperage & Lumber Company. ■ In August, 1909, Sherman filed a petition setting out the claim against said Cooperage & Lumber Company; that he had many times demanded payment and satisfaction of the same and been refused; that he had a written proposal from Myron J. Sherwood (and it was attached to the petition) submitting two offers, one that he (Sherwood) would pay $225 for an assignment of the cause of action, the other that he would begin suit therefor, pay costs and expenses, and take the judgment recovered to offset any claims for taxes or tax titles which might be held against the land, which had accrued after the making of the assignment. The court made an order directing the assignee to accept the first proposition and to execute and deliver to Sherwood an assignment of the right of action against the said Northwestern Cooperage & Lumber Company or against any other person for cutting and removing timber from the Iron county lands, upon payment of $225. Later, in October, 1909, an order was entered directing the distribution of the proceeds of the sales and requiring the assignee to file a final report. The report was filed December 17, 1909, and on the same day was confirmed, the assignee’s bond was canceled, and he released. Complainants accepted the checks which came to them upon this distribution, believing that Sherman had authority to act in the premises and that the property had been fairly sold and the reasonable market value thereof realized.

At the said public sale of lands, as complainants are informed and believe, two persons only appeared to bid for the lands in Iron county, namely, Myron J. Sherwood and J. P. Bushong, each of whom was desirous of acquiring a certain portion thereof, and they appeared to bid for the same in competition with each other. Instead of bidding, they entered into an agreement, by the terms of which they were to refrain from bidding against each other, each was to acquire a part of the lands offered, each to take his deed therefor, the sum total of their bids was to be paid equally by both, and each was to quitclaim an undivided half interest in the lands acquired by him to the other. The agreement was carried out, each did acquire by bidding some of the land, each received a deed for the land bid in by him, and each later, and in May, 1908, executed to the other a conveyance of an undivided one-half interest in the land so acquired by each. Complainants are informed and believe that some of the land so sold and acquired and divided by the purchasers contains valuable iron ore and was worth, when the assignee’s sale was made, and is now worth, many times the price bid for the same; that the demand of the assignee against the Cooperage & Lumber Company was worth $3,000 when it was assigned to said Sherwood. It is prayed that the sales be set aside; that some competent person be appointed assignee of said Edwards to recover all property and property rights belonging to said estate, and to proceed under direction of the court to dispose of such property, fairly, for the benefit of creditors. Besides Sherman, Sherwood, and Bushong, the persons made parties defendant in the bill are many, most of them because they are creditors of Edwards, one of them because he was a purchaser of some land at the said assignee’s sale. Defendant Sherwood entered his appearance in September, 1911. By amendment of the bill, in March, 1912, the Northwestern Cooperage & Lumber Company was made a defendant as having, or claiming to have, some right or interest in or title to lands belonging to the estate.

The cooperage company answered the amended bill and asked for affirmative relief. The answer admits much that is charged in the bill, including the conclusion that all sales of property made by Sherman as assignee, and all proceedings of his in relation to the property, are null and void. Claiming the benefit of a cross-bill, this defendant sets up title in itself to the said Iron county lands, acquired by various sales of the lands for taxes, and conveyance of the same by the auditor general. It charges, also, that, having said tax deeds, it acquired the interest of Edwards, the assignor, by quitclaim deed in December, 1903; that it is owner of the lands, subject only to such rights, if any, as are possessed by the creditors of said Edwards under and pursuant to his said assignment for the benefit of creditors. It is further charged that defendant Sherwood, as the assignee of the demand of Edwards against the cross-complainant, has begun a suit in trover in the circuit court for the county of Delta to recover for timber cut and removed by it from said Iron county lands, in which action á plea of the general issue has been filed, and that said Sherwood ought not to be permitted to prosecute the suit until the questions relating to the validity of the acts of Sherman, as assignee of Edwards, are determined. Further it is charged that certain of the creditors of Edwards have by laches lost their right to proceed against and to regain the lands acquired by this defendant from Edwards; that Schafer, the assignee, died June 8, 1891, and until the filing of a certain petition by certain creditors in November, 1907, under which said Sherman was appointed assignee, no pro- ■ ceedings of any kind were taken with respect to said assigned estate; that that petition being insufficient to confer jurisdiction, and numerous creditors not having accepted the dividend made by said Sherman, a large number of them have for more than 20 years neglected to assert any claim to said lands; that this defendant has meantime made large expenditures on account of said lands. The names of creditors of Edwards who have not for 20 years asserted any claim in respect to said assigned estate are given in the cross-bill. The prayer of the cross-bill is that the large number of defendants named therein answer the same; that the deeds made by Sherman, as assignee of Edwards, of the Iron county lands be set aside, and the title of defendant and cross-complainant to said lands be quieted and established against all claims of Sherwood and Bushong; that defendant and cross-complainant be decreed to be .owner in fee of the said lands, subject only to the lawful claims of creditors of Edwards; that defendant Sherwood be restrained from prosecuting his action of trover in Delta county; that certain named defendants be decreed to have by laches become estopped to assert any demands as creditors of Edwards.

The defendant Myron J. Sherwood appeared specially and moved the court to dismiss and strike from the files, so far as he and his rights are concerned, the cross-bill of defendant Northwestern Cooperage & Lumber Company, for the reason that the court has not jurisdiction to determine the matters brought upon the record by the cross-bill. An order was made and entered granting this motion, and from it the Northwestern Cooperage & Lumber Company has appealed.

No one is questioning the jurisdiction of the court as to the matters set up in the original bill. The objections to the answer in the nature of a cross-bill, as stated in the brief for Sherwood, are:

“(a) The cooperage company is neither a necessary nor a proper party defendant.
“(b) Under our practice, an answer in the nature of a cross-bill may not be filed by one defendant against a codefendant.
“(c) The subject-matter of the cross-bill is not germane to the original bill.
“(d) Neither an original bill nor a cross-bill may be filed in Menominee county to quiet title to lands in another county of this State or to enjoin the prosecution of a suit pending in another county.
“(e) The cross-bill does not contain allegations sufficient to give a court of chancery jurisdiction to try title to lands.”

Assuming that the court has jurisdiction to entertain the original bill, it is derived, originally, from chapter 260, 3 Comp. Laws (5 How. Stat. [2d Ed.] §14165 et seq.). That statute is an act to provide for the regulation and enforcement of assignments for the benefit of creditors. It contemplates that the assignee of a debtor shall take the title to all property of the assignor, not exempt from execution, and dispose of the property for the benefit of the creditors, returning to the assignor any residue. To this end the circuit court, and the judge thereof, has certain powers, and it is provided (section 11) that the circuit court, in chancery, in the proper county, shall have supervisory power of all matters, questions, and disputes arising under such assignment, except as otherwise provided in this act, and may, on the application of the assignee or any person interested, make all necessary and proper orders for the management and disposition of the assigned property, the distribution of the assets and avails, the recovery of all property claimed by third persons, and to prevent any fraudulent transfer or change in the property or effects of the assignor or the allowance or payment of any unjust or fraudulent claim out of his estate. So it is provided (section 6) that in case there shall be any fraud in the matter of said assignment, or in the execution of said trust, or if the assignee shall fail to comply with any of the provisions of this act, or fail or neglect to promptly and faithfully execute said trust, any person interested therein may file his bill in the circuit court, in chancery, of the proper county for the enforcement of said trust; and the court, in its discretion, may appoint a receiver therein, etc., etc.

It may be said, generally, that under the statute the court has power to direct and control the assignee or receiver in collecting and disbursing the property of the assignor. In the original bill the court is asked to declare that in appointing an assignee, in directing and approving his actions with respect to assigned property, it acted without jurisdiction, and, if it had jurisdiction, it is asked to find that certain conduct of the assignee was fraudulent in effect and to set - aside its orders approving such conduct, and, in either case, to proceed to enforce the trust created by the assignment. In such a proceeding, we cannot say that all creditors of the assignor and all persons who claim title to property through the alleged improper conduct of the assignee are not proper parties, if the bill can be maintained. How the interest of a person who claims otherwise than through the assignment proceedings can be affected by any order or decree the court may make is not evident, unless it is voluntarily submitted to the court for decision. The distinction must be observed between the supervisory and other powers of the court in the matter of the administration of the trust and the determination of rights to the property assigned and the recovery of property claimed by the assignee or by creditors to be trust property.

The statute does not give the court, in the assignment proceeding, power to determine the claims of third persons to the assigned property, unless parties concerned are willing and voluntarily subject themselves to the jurisdiction. Edwards v. Symons, 65 Mich. 348 (32 N. W. 796); Sawyer v. McAdie, 70 Mich. 386 (38 N. W. 292). See, also, Burnham v. Dillon, 100 Mich. 352 (59 N. W. 176), in which case a bill was filed by general creditors to set aside a chattel mortgage given by the assignor as fraudulent, the assignee refusing to file it, and the assignee and the alleged fraudulent mortgagee were made parties defendant.

It may be said that in the case at bar the Northwestern Cooperage & Lumber Company has submitted itself to the ‘jurisdiction .of the court for the purpose of determining the extent and value of its interest in the Iron county lands, and will therefore be bound by whatever decree the court may make in the premises. Indeed, by appealing from the order striking its cross-bill from the files, it may be said that it is insisting that the court, in this suit, settle its rights to the property.

It is clear, however, that the averments in the bill of complaint are not sufficient to show that it is a necessary or a proper party defendant, and, while it is not contesting the propriety of the complainants’ action, we think another and proper defendant called upon to answer its cross-bill may complain that it is an intruder into the case without right to submit therein issues to be met by the other defendants. No decree upon issues presented in the original bill can affect the rights or interests of the Northwestern Cooperage & Lumber Company. Its agreement with or dissent from the charges and conclusions stated in the bill are wholly unimportant. It claims no interest in property derived through the assignment proceedings. Whether the assignee’s sale be set aside or be confirmed, its rights are not affected, so far as the title to land is concerned, nor, so far as the pleadings disclose, can its rights or liabilities as a trespasser upon those lands be affected. It has apparently a single interest depending upon the decree the court shall make, and that is that it shall be called to account for its alleged trespasses by a proper person. But, to protect this right, it has no occasion to intrude or to be intruded into this case. We are of opinion that the court below committed no error in dismissing the answer of the Northwestern Cooperage & Lumber Company, in so far-as it affects the defendant Sherwood. It is unnecessary to consider the other points presented by the appellee.

It is contended that the practice pursued was irregular. We think the point was properly, as it was conveniently, raised by motion, and that the order appealed from was in its nature and effect a final order and appealable.

McAlvay, C. J., and Brooke, Kuhn, Bird, Moore, and Steere, JJ., concurred. Stone, J., did not sit.


text:
    FARROW v. RAILWAY CONDUCTORS’ CO-OPERATIVE PROTECTIVE ASSOCIATION.
    1. Judgment — Foreign Judgments — Process—Service on Agent.
    In an action on a foreign judgment rendered on a policy-issued by a voluntary association that had transferred its insurance business to the defendant, evidence that the defendant had no agents in the sister State, that it had never applied for license to transact business there, and that the person served with process in the original cause was not an agent of defendant, and that it was not successor to the voluntary association and had never assumed the obligations thereof, sustained a judgment for defendant on the ground that the foreign court never acquired jurisdiction.
    2. Same — Corporations—Foreign Courts.
    Whenever it is made to appear, on inspection of the record of a court of general jurisdiction, that the defendant in a judgment was, at the time of alleged service, without the jurisdiction of the court, and never entered a voluntary appearance, the burden of showing jurisdiction • by virtue of valid service is cast on tbe party that invokes tbe benefit or protection of tbe judgment.
    8. Constitutional Law — Full Faith and Credit — Judgments.
    Tbe constitutional requirement tbat full faitb and credit shall be given in each State to tbe public acts, records, and judicial proceedings of other States does not prevent an inquiry into the jurisdiction of the court which rendered the judgment: even record recitals are not conclusive; oral testimony is competent to dispute the existence of such recited facts.
    4. Judgment — Appearance—Special Appearance.
    Appearing to object to the jurisdiction of the court is not a submission to the jurisdiction or a general appearance.
    Error to Wayne; Van Zile, J.
    Submitted November 25, 1913.
    (Docket No. 36.)
    Decided March 26, 1914.
    Assumpsit by Guy N. Farrow against the Railway Conductors’ Co-operative Protective Association. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      John E. Moloney and Frank W. Atkinson, for appellant.

      McNamara & Scallen, for appellee.
   Ostrander, J.

Plaintiff is a resident of the State of Washington; defendant is a Michigan corporation. Defendant’s predecessor in business issued a policy to plaintiff in June, 1908, upon which suit was begun in the State of Washington, in the county of Spokane, in the superior court, in April, 1910. Such proceedings were had in that court and cause that on November 4, 1910, plaintiff recovered therein a judgment against defendant’s .predecessor in business for $500 damages and $50 costs. Upon that judgment, in July, 1911, this suit was begun in the circuit court for the county of Wayne, Mich., was tried by the court, and resulted in a judgment for defendant. The action is assumpsit. The issuing of the policy, the recovery of the foreign judgment, and that, after the policy was issued, the defendant took over all the assets and assumed all of the liabilities of the original insurer are facts alleged, as well as the fact that defendant appeared in the foreign court and contested the suit upon the merits. The plea is the general issue. From the findings filed by the court, it appears that the court disposed of the matter upon the grounds that the transcript of the judgment of the Washington court does not show that the court acquired jurisdiction of the defendant, and that, in fact, it did not acquire jurisdiction.

The transcript was admitted in evidence, the plaintiff rested, and the defendant offered testimony, in the course of doing which defendant asked permission to amend its plea by a notice that the jurisdiction of the Washington court was questioned, and, over objection, was permitted to amend. Whether a notice of special defenses was actually framed, we are not informed. The cause proceeded as though defendant had the right to attack the jurisdiction of the Washington court. Plaintiff did not ask for a continuance. The testimony for defendant tended to prove that one A. D. Mars, upon whom service of process in Washington appears by the transcript to have been made, was not authorized by defendant to accept service of process, and never acted for defendant in any way, unless to recommend some person as a member of defendant; that defendant never applied to do business in Washington, and never had an agent in the State soliciting business for defendant; that defendant never has had, and has not now, any agents soliciting business.

It appears from the transcript offered in evidence that a complaint was verified April 20, 1910; that a summons, without date, was issued, apparently by the attorneys for plaintiff; and that proof of service of the complaint and summons was filed June 1, 1910, with the clerk. The return, in the form of an affidavit of one George H. Hale, is that:

“He personally served the said A. D. Mars, trustee and agent of Railway Conductors’ Protective Association, the defendant, by delivering to said A. D. Mars, trustee and agent of said defendant corporation, a true copy of said summons and complaint.”

The summons is addressed to the Railway Conductors’ Protective Association, a corporation, and the complaint alleges that the defendant is a corporation organized and existing under and by virtue of the laws of the State of Michigan doing business in the city and county of Spokane, State of Washington. The oral testimony given in the case at bar, which is undisputed, is to the effect that defendant in the case at bar was not incorporated until September, 1910. Prior to that time, a voluntary association, named as in the action in the Washington court, was in existence, and it issued the policy in question to plaintiff. It is said by counsel for plaintiff that the defendant in the present suit was incorporated in 1909, and that the record is not in this respect accurate. However this may be, it is apparent that the defendant in the Washington court was not the defendant in this action, did not have the same name, and was not charged as the successor of, or as having assumed the liabilities of, the association which issued the policy.

We said in Marshall v. R. M. Owen & Co 171 Mich. 232, 238 (137 N. W. 204) :

_ “It is the general rule, and it applies to corporations, that, whenever it appears from inspection of the record of a court of general jurisdiction that the defendant, against whom, a personal judgment or decree was rendered, was at the time of the alleged service without the territorial limits of the court’s jurisdiction, and thus beyond the reach of its process, and that he never appeared in the action, the presumption of jurisdiction over his person ceases, and the burden of establishing jurisdiction is cast upon the party who invokes the benefit or the protection of the judgment or decree.”

This is the rule in the State of Washington. Cunningham v. Hydraulic Co., 18 Wash. 524 (52 Pac. 235). It would be precisely applicable here if the defendant in the Washington court was the defendant in the present suit. Here, as in the case of Marshall v. R. M. Owen & Co., no proof was made of the law of the State in which the judgment sued upon was rendered; none, except as furnished by the transcript, that the defendant in that action ever did any business in that State. But, it is said, this defendant appeared specially in the Washington court, and submitted to the determination of the court the question of jurisdiction. Manifestly it could submit to that court no question of jurisdiction over this defendant. The transcript does not contain the plea to the jurisdiction, if one was filed, or the motion, if the question was raised by motion, or the ruling of the court. It . does appear by a recital in the answer which was filed that defendant—

“Appearing further m said action as required by the court in its order overruling defendant’s motion to quash, heretofore made herein, reserves all its rights under the special appearance heretofore made, renews its objections to the jurisdiction of the court, as urged in said special appearance, and answers as follows.”

The answer is to the merits. There was reply to the answer and a trial, at the conclusion of which special findings of fact and law were made by the court, including one that defendant was doing business as such corporation, at all times in the complaint mentioned, in the city and county of Spokane, State of Washington, and the one that—

“At all times mentioned in the complaint, and since, in the month of April, 1908, A. D. Mars has been, was, and now is the duly authorized and acting agent of the defendant corporation, for the purpose of soliciting insurance, accepting applications for'insurance, passing upon the said application, approving the same, accepting money therefor, * * * accepting the dues, and was at all times the general agent of said defendant corporation, and the only agent in the county of Spokane, * * * with full authority to do any and all things necessary to carry out his position as general agent.”

There was no appeal from the judgment of the Washington court. It does not appear that on the trial of the pending cause the point was made that the defendant in the Washington court was not the defendant in this action. The attention of counsel has since been called to the matter. Determining the errors assigned in accordance with the theory upon which the cause was tried, the judgment of the circuit court must be affirmed.

The requirement that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State does not prevent inquiry into the jurisdiction of the court in which the original judgment was rendered to pronounce the judgment. Thompson v. Whitman. 18 Wall. (U. S.) 457, and even record recitals of jurisdictional facts do not preclude oral testimony as to the existence of those facts. Knowles v. Coke Co., 19 Wall. (U. S.) 58, 61; Pennoyer v. Neff, 95 U. S. 714, 730; Cooper v. Newell, 173 U. S. 555, 566 (19 Sup. Ct. 506); Brown v. Fletcher’s Estate, 210 U. S. 82, 88 (28 Sup. Ct. 702). It is the rule in this, and probably in every jurisdiction, unless changed by statute, that appearing to object to the jurisdiction is not, upon an adverse judgment being rendered, a submission to jurisdiction, or an appearance generally.

The trial court has found, upon testimony tending to prove the fact, that the Washington court did not acquire jurisdiction of defendant, which was the question presented to it for determination.

The judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    OIVA v. CALUMET & HECLA MINING CO.
    1. Mikes and Mining — Master and Servant — Risks Assumed— Inspection — Pall of Rock.
    As matter of law, a miner employed as a trammer assumed the risk directly connected with his work, that notwithstanding proper inspection at reasonable intervals material might become dislodged and descend upon him.

    2. Same — Trial—Requests—Personal Injuries.
    It was not erroneous to refuse plaintiff’s requests to charge the jury that the miner was not charged with the duty of inspecting the walls and timbering, or with the knowledge of defects that he did not know of, where the court charged that he was not required to make any examination, inspection or test of the hanging walls, and that the defendant was bound to make such inspections, and was liable for negligence of the persons so inspecting the mine.
    3. Same — Charge—Contributory Negligence.

      Held, also, that the charge of the court on the subject of contributory negligence was not erroneous.

      4. Same — Assumption oe Risk — Burden of Proof.
    It is a general rule tliat tlie master has the burden of showing that an employee, injured in consequence of an unusual hazard due to negligence, knew of the unusual dangers.
    5. Same — Trial—Charge.

      Held, also, that the charge was not argumentative or unduly favorable to the defendant: and it sufficiently submitted the issue that the plaintiff claimed he had been assured by his superior servant that the place of work was safe.
    Error to Houghton; Flannigan, J., presiding.
    Submitted November 20, 1913.
    (Docket No. 98.)
    Decided March 26, 1914.
    Case by Charles Oiva against the Calumet & Hecla Mining Company for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Le Gendre & Driscoll, for appellant.

      Allen F. Rees (Rees, Robinson & Petermann, of counsel), for appellee.

       As to servant’s assumption of obvious risks of hazardous employment, see note in 1 L. R. A. (N. S.) 272.
      On the question of servant’s assumption of risk from changing condition of the working place during progress of the work, see notes in 19 l;r. A. (N. S.) 340 and 28 L. R. A. (N. S.) 1267.

   Ostrander, J.

Although the record is a considerable one, and the assignments of error are numerous, the case presented for review is not- complicated, and its decision depends principally upon whether the court properly instructed the jury. The plaintiff, working with a single partner on the night shift in defendant’s mine as a trammer, was injured by a piece of rock which fell from the wall of the sto'pe at the foot of which he was working. In operating the mine, different classes of employees ' have different duties, and it does not appear from this record that the duties of one class overlapped those of another. There are miners who drill and blast, timbermen who construct and maintain structures necessary to support the walls, men whose duty it is to inspect the walls and break down material which appears to be loose and in danger of falling. Plaintiff’s duty was to load material from the mills at the foot of the stopes into a tram car and push the tram car to a hoist, and it is not claimed that he was charged with any duty to inspect the walls or timbers, or to do anything except to remove the material from the mills. As matter of law he assumed risks directly connected with his work, among them the. risk that, notwithstanding skillful inspection of the walls at proper in-, tervals, material might become dislodged from the wall of the mine and go down a stope into the mills at the foot of the stope. He was a foreigner, 20 years of age, had been employed in another mine as a timberman, and in defendant’s mine for 3 months as a trammer. He was never employed as a miner. It must be assumed from his testimony that risk from falling rock, notwithstanding proper inspection and barring down of material, is one which he appreciated and assumed.

It is the theory of plaintiff’s case, and he gave testimony tending to prove, that the rock which caused the injury fell from the wall in a portion of the 'stope which had been for some time open; that an old wall, and especially if it is unsupported, is more likely to be unsafe than a new one; that of this fact he had no knowledge, and upon the subject had received no instruction or warning; that in the evening before he was injured his partner had noticed, or thought he had noticed, the sound of rock falling into or above the mill in which the plaintiff was afterwards injured, and had called the matter to the attention of the shift boss, and had been assured, in plaintiff’s presence, that the mills in which they proposed to work and had been ordered to work were all right and safe. Plaintiff himself claims not to have heard any falling rock, and the testimony of his companion is to the effect that he was unable to locate the place where the material was falling with any precision, and that small pieces only were dropping; but the fact that some pieces of rock were falling in the vicinity, to plaintiff’s knowledge, seems to have been considered important at the trial as affecting plaintiff’s duty to take care, and the alleged assurance of safety given by plaintiff’s superior a matter of importance as affecting plaintiff’s duty to discover for himself whether the place in which he was injured was or was not dangerous. The opening statement made by counsel for defendant to the jury may be employed as indicating pretty well the issues of fact which are contested. He said:

“Now, the facts as to the condition of the particular mill where this man was hurt seemed to be wrapped up in a whole lot of confusion, and we want to straighten that out, and we will show you that, as a matter of fact, any mill in this stope had portions of the hanging wall that were old, that is, were comparatively old, and also portions of the hanging wall that were comparatively new, because in working out this ground they do not start at one stope and clean up one mill. They would start at the bottom and clean out all the mills, and go back again and work; for instance, at No. 2 mill they might have worked the bottom of that and exposed that a month or two before they took the next 20 or 30 feet further up the mill. That is one of the things.
“We will show you in the testimony we will introduce, we will also show you that there is unusual care and very careful attention paid to the condition of those stopes and places where men are working in these mines; that there are men whose work it is, timbermen working all day in these places, to keep the place in good, fit, and safe condition as that men won’t get injured; and that, in addition to that, there are certain employees of the company who visit these places regularly all the time, every day twice or three times a day, and look them over to see that everything is all right, and, in case the timbermen or miners have overlooked anything that isn't safe, their attention is called to it, and it’s made safe.
“In other words, we are going to show you that, instead of sending men into a dangerous place to work, the policy of the company and custom has been to take every possible care to see that the working places of its men was made as safe as it reasonably could be made.
“Now, we will also show you that the hanging wall, for instance, in the Calumet & Hecla conglomerate vein, that the vein is not the same all over the-mine; that the hanging wall in all the stopes is not exactly the same; that there are places, stopes, where the hanging wall is bad, and there are places where it is better, and there are places where the hanging wall is very good; and that it isn’t the necessary thing, nor the custom, nor good mining, after a place is timbered, after a stope is timbered, to lace it over or put lagging in in every instance. It isn’t necessary where the hanging is good. There are places where the hanging isn’t good that it becomes necessary to, in order to insure the safety of the men, to put lagging across to keep up this loose rock. But there are a great many places where that isn’t necessary, and it isn’t particularly good mining to do it in those places. They are taken care of in the ordinary way as the miners do, where they see a piece of loose rock, take it down. It is just as reasonably safe as it could be made under the good practice of mining, and as to that we will show you that this particular stope was one of the good stopes in that mine; that this place that was not lagged was the good hanging, and didn’t require any lagging, and this will be by the testimony of the men who know something about the mining business, and have been in it for a great number of years; and that, if there was any place in that stope where the hanging was bad and needed to have that, the lagging was there.
“We will show you, too, in the matter of wall plates —there is testimony in the case now that there was no wall plates, and that there should have been; that the system of timbering now is not the same as the man who testified that where they used square timbers they put these wall plates across, but where they have a battery of several or three timbers it isn’t necessary to have the wall plates in order to make the place safe.
“Now, coming down to the particular facts in this case, it is claimed by one of the witnesses that the shift boss went into that place and spoke to these men, and that this particular witness, Paninen, told him that the place was bad, and that the shift boss sent him in there without any sort of warning at all, but simply sent them into a place that was bad, and that he knew was bad.
“We will have this shift boss here as a witness, and he will tell you just whether or not he said or gave any such directions to those men at that time. He will tell you that he did not give any such directions to those men at that time. And he will also show you that men working in a place like the one where these men were working, and hearing rock fall or in any other way becoming aware that the place was getting dangerous, under the custom of the mine, and under the rules that were understood, and that were generally understood, if that happened in the daytime when the timber gang was working, that it was their business to notify the timber boss of the condition of the place where they were working, and it was his duty to fix it up, but the timber gang does not work on night shift, and this accident happened at night; that there were four miners working at short distance from where these men were, and that it was their duty, when they noticed anything wrong in the hanging, or became aware that it was dangerous at all, to call these miners down and have them fix it up; that that was one of the things they should have done, not only for their own safety, but the safety of everybody working in that stope; that they did not do this, but continued their work.”

The negligence of defendant asserted is:

“(1) Failure to properly, skillfully, and sufficiently timber the mill in question; (2) failure to properly, skillfully, and sufficiently inspect it; (8) failure to properly, skillfully, and sufficiently bar down loose, shaky, and unreliable rock from it; (4) failure to warn the plaintiff (a) that the hanging in it was old, and therefore more dangerous, (b) that loose, shaky, and unreliable rock existed in the mill, and (c) that the mill was insufficiently secured; (5) ordering him into an unsafe place, and assuring him that it was safe.”

The jury returned a verdict for the defendant, upon which judgment was entered. Some errors are assigned upon rulings made during the cross-examination of plaintiff; but, as we think there was no abuse of discretion on the part of the trial judge, we notice only those errors which are based upon the refusal of the court to instruct the jury as requested by the plaintiff and the charge as given.

It is complained that plaintiff’s twelfth and thirteenth requests to charge were not given. Those were:

“(12) If the duty of inspecting plaintiff’s working places to determine their safety as such was no part of his duty, but was imposed by defendant upon another or others than the plaintiff, then defendant was responsible for the conduct of such other or others in and about the inspecting of such working places, and defendant, by and through them, was under a higher duty of discovering defective and dangerous conditions in and about plaintiff’s working places than plaintiff was. Plaintiff would be chargeable with knowledge or notice of only such defective conditions in and about his working place as he actually knew, or by reasonable use of his senses while giving due attention to his own duties he should have discovered without any particular inspection; while those upon whom the duty of inspection was imposed would be chargeable with notice of all such defects and dangerous conditions as they actually knew, and also of all such defects and dangerous conditions as could and would have been discovered by such a reasonable inspection and search for defects and dangerous conditions as a reasonably careful, skillful, and prudent person exercising ordinary care to discover defects and dangerous conditions in and about the working place would have discovered therein.
“(13) If you find from the evidence that the risk of plaintiff’s injury was one which was not ordinarily incident to his employment, but was a risk which would have been obviated and avoided had defendant performed its duties under the rules stated in these instructions, then I charge you that in order to defeat plaintiff’s recovery on the ground of his assumption of the risk, the burden would be upon defendant to show by a fair preponderance of the evidence that the plaintiff knew of and appreciated such risks, or should have known of and appreciated such risks.”

The twelfth request was given in substance, and the charge was rather more favorable to the plaintiff than the request. The court said to the jury, among other things:

“Under his contract of employment, the plaintiff was not required to make any inspection, examination, or test of the hanging Wall of the mill in which he insists he was injured to discover whether or not it was a safe place to work, or to bar down or timber against any loose rock in such hanging wall, and he is not chargeable with contributory negligence in that he failed to make any such inspection, or to bar down, or to timber. The defendant assumed and was charged with the duty of all such inspections and testing of the hanging wall of the mill, and of all such barring down of any and all loose rock therein, and of timbering against any and all loose rock in the hanging wall in question, as you shall say from the evidence was reasonably necessary for the protection of the plaintiff while he was working thereunder, and the persons, whether shift boss, timber captain, timbermen, or other person charged by the defendant with the duty of making such inspection, and of barring down or timbering against loose rock found in the hanging wall, were not, while engaged in the performance of such duties, fellow-servants of the plaintiff, but were vice-principals, and the defendant would be liable to the plaintiff for the consequences of any carelessness, or unskillfulness of any and all such persons in failing to perform or in the manner of performing each and all of such duties.
“If you find from the evidence that the place in which the plaintiff was when injured was a permanent part of the mine, and the hanging wall above the mill was a permanent wall, and that on the day of the plaintiff’s injury the rock which caused the injury was in the hanging wall of the mill, and was in such a place, state, or condition that it was liable to fall and injure a person who would be at the place where plaintiff was when injured, and that the defendant knew of that fact, or could and would have known of it if it had exercised ordinary care, skill, and diligence to ascertain the condition of the hanging wall, and that the plaintiff was excusably unaware of it, and that the defendant, by and through its' captain or shift boss, ordered or directed the plaintiff to work in the mill or place at which he was working when injured, and that before plaintiff went to work at that place his partner, in his presence and hearing, called the attention of the shift boss or captain to the condition of that place, and expressed fear or doubt as to its safety as a working place, and that the captain or shift boss, upon his attention being so called to it, stated or represented to, or assured plaintiff’s partner in plaintiff’s presence and hearing, that the place was all right, and ordered plaintiff and his partner to go to work in the mill on pain of discharge, and that plaintiff depended and relied upon such statements, representations, and assurances of the captain or shift boss, and was by such statements, representations, and assurances led to believe that the place was safe to work in, and that an ordinarily careful and prudent person in plaintiff’s situation would have been led to so believe by such statements, representations, and assurances, and that because of such statements, representations, .and assurances plaintiff went to work in that place, and while plaintiff was working therein, and in the exercise 'of ordinary care for his own safety, and reasonably depending and relying upon those statements, representations, and assurances, he was injured by the rock in question falling and striking him, then the plaintiff would be entitled to recover.
“The plaintiff was not guilty of contributory negligence if at the time of the occurrence of his injuries he was exercising ordinary care and prudence in the performance of his work, having regard of the situation in which he was working, and he conducted himself the same as a person of ordinary care and prudence, under the same and similar circumstances, he was only required to use and exercise ordinary care, and, if he did that, then he was not guilty of contributory negligence.”

But it is said that in other portions of the charge that portion which has already been set out was so qualified, and the entire charge was so argumentative, so favorable generally to defendant, and so unfavorable generally to plaintiff, that it did not, upon the whole, present fairly to the jury the rules respecting the duties of plaintiff and defendant under the circumstances. In this criticism of the charge, various portions of it are separated from the remainder, as, for example, the following:

“Now, gentlemen, at the outset of this case and all through this case, I wish the jury to bear this in mind, that the plaintiff is not entitled to recover a verdict in this case simply because he suffered an injury while in the employ of the defendant. There are many purely accidental injuries for which the employer is not liable. In order to recover damages, the burden is on the plaintiff to show that the accident by which he was injured was due to some fault or negligence of the defendant set forth in the plaintiff’s declaration, and that he himself was free from any fault or negligence which caused or contributed to his injury. All mining, I think we of the mining country may say, is dangerous — absolute safety in mining seems to be unattainable — and the employer is liable for the consequences, not of danger, but of his’negligence.”

But this part of the charge was immediately followed by the following:

“The defendant in this case, the mining company, was obliged by the law to furnish the plaintiff a reasonably safe place to work. The defendant was not bound by law to furnish the plaintiff a place to work which was absolutely safe, but a place which was as reasonably safe as the nature of the work would admit, and which was free from all dangers which were not open and obvious to the plaintiff, and capable of being appreciated by him.”

Another portion of the charge criticised is:

“But th§ law also is this: That the servant — and this rule of law is binding on' the plaintiff in this case —that the servant must look about him, must observe his surroundings, and he is chargeable with notice and knowledge of all dangers which were open and apparent to a person of ordinary understanding, and if and unless you are satisfied by a preponderance of the evidence in this case that the dangers were not known to the plaintiff, or by the exercise of ordinary care and prudence for his own safety would not have been known to the plaintiff, then he would [not?] be guilty of contributory negligence. If he knew, or in the exercise of ordinary care to observe his surroundings, to look about him, to see and to know what was happening about him, if he failed in that respect, then he would be guilty of contributory negligence, provided he continued to work in that place.”

And the following:

“But, if he actually knew, or if in the exercise of ordinary care to look about him, and to observe what was happening, particularly after the captain had left, and unless the jury are satisfied that, if he had looked about him, he would not have actually known the place was dangerous, then he would be guilty of contributory negligence.”

Of these and some other portions of the charge upon the subject of plaintiff’s contributory negligence, it is said in the brief for plaintiff :

“Here are seven distinct paragraphs on the subject. The court first told the jury that the burden was on the plaintiff to ‘show * * * that he himself was free from any fault or negligence which caused or contributed to his injury.’ Then (with especial emphasis) he required plaintiff to ‘look about him’ and ‘observe his surroundings,’ and charged him with ‘notice and knowledge of all dangers which were apparent to a person of ordinary understanding’ (no mention made of the necessary qualification ‘in the exercise of ordinary care’), and told the jury that, if he did not, he would be guilty of contributory negligence. Then (in effect) he told them that, in order to avoid the imputation of contributory negligence, provided he continued to work in that place, plaintiff was bound ‘in the exercise of ordinary care to observe his surroundings, to look about him, to see and know what was happening about him.’ Then he said:
“ ‘If, in the exercise of ordinary care to loot about him, and to observe what was happening, particularly after the captain had left, and unless the jury are satisfied that if he had looted about him, he would not have actually tnown the place was dangerous, then he would be guilty of contributory negligence.’
“These instructions were erroneous. The court required the jury to be satisfied that, if he had looked about him, he would not have known that the place was dangerous. The fact that plaintiff was expected to spend all of his time at shoveling rock was disregarded. The assurance of safety and order given by the captain was disregarded. It was assumed that if he had looked around, he would have discovered the danger; whereas, even his partner does not claim that by looking around he discovered anything wrong with the place, but only that he heard some small insignificant rock fall. If there were rocks falling, as claimed by his partner, looking around would not do any good, for it was so dark that they could not be seen. The noise created by their falling would be drowned by the machines, and by the work of the plaintiff or the other trammers handling rock with shovels. It does not appear that the rock which his partner heard fall were large or dangerous; but the evidence is to the contrary.”

It is supposed that a charge to a jury will be given and understood in connection with the issues which have been presented and the testimony which has been produced upon those issues, and no analysis of the charge can be made which dissociates it from the issues submitted to the jury. As has been stated, plaintiff relied, in part, upon an assurance of his boss. As testified to, the assurance was not a general but a special one, called out by the information given the boss by plaintiff’s partner that he had heard falling rock in the stope. That any such assurance was given is disputed by the mining boss, and plaintiff’s partner in his testimony makes little account of the noise or noises he heard; but plaintiff relied upon the assurance, and it must be assumed that he relied upon it because, but for the assurance, it might be said that his conduct in entering the mill under the circumstances was negligent. The jury might have found that no assurance of the safety of the stope was given to plaintiff by the mining boss. It is admitted that the mining boss had gone away before the plaintiff began work in the mill in which he was injured. Assuming that rock had been falling in the vicinity in the course of the evening, and that no assurance of safety had been given to plaintiff and his partner, what, then, was the duty of plaintiff? The court was required to instruct the jury with, respect to the various phases of the. testimony and the contentions submitted to the jury, and, while it may be said that some portions of the charge, detached from the remainder of the charge, seem- to impose upon plaintiff the duty to exercise greater care than was necessary, those portions of the charge which are criticised must be read in a connected way, and we are not satisfied that, taken as a whole, it can be said that the charge was, upon this subject, erroneous.

Of the thirteenth request to charge, and of the charge given, it is said that the court gave to the jury a wrong rule upon the subject of the burden of proof, and in this connection it is argued in the brief that nothing that plaintiff did had a tendency to bring about his injury; that he was therefore not guilty of any contributory negligence, especially in view of the assurance of safety and the order to proceed; that he did nothing more than to work in the place—

“Which was not so openly, obviously, and imminently dangerous as to make it reckless on his part to do so. The only way (if any) in which his recovery could be legally debarred was by his assumption of the risk in case the jury disbelieved the testimony as to the assurance and order. And the injury having resulted from a risk not ordinarily incident to his employment, the burden was upon defendant to prove by a fair preponderance of the evidence that he uhderstood and appreciated it.”

The court charged the jury upon the subject of the burden of proof in several places during the charge, and it is said that the following portion emphasizes the rule and the error:

“Now, then, bear this in mind, in connection with the obligation of the plaintiff to make out his case by a preponderance of the evidence, that the defendant is not obliged under the law to prove to you that it made an inspection of that hanging wall. The defendant is not obliged to bring its witnesses here to prove to you that it barred down the loose rock from time to time, or to prove to you that it took any measure for the protection of the plaintiff while he was at work in that mill. The obligation under the law rests upon the plaintiff to prove to you by a preponderance of the evidence that the defendant did not do these things, and I am saying this to you and emphasizing it in view of the range which the arguments have taken.”

It is undoubtedly the rule that, where a servant shows that he was injured in consequence of an unusual risk, due to his master’s negligence, the master has the burden of showing that the servant knew of the unusual dangers, and this is the rule relied upon by plaintiff’s counsel. But the rule only becomes applicable, as its statement indicates, in a case where the servant is injured on account of some risk unusual and unknown. What plaintiff claims, in substance, is that he was not furnished a safe place in which to work, and a further claim that he was set to work in an unsafe place upon an assurance that it was safe. Assuming that he himself exercised proper care, he was entitled to recover if he established either proposition, and as to either proposition the matter was fully and completely taken care of by a portion of the charge in which the court said:

“The plaintiff claims the defendant was negligent, first, in failing to test and inspect the hanging wall of the mill; second, in-failing to warn the plaintiff, before putting him or allowing him to work in the mill, of the existence in the hanging wall of the mill of loose rock which was liable to fall from or roll against the plaintiff while he was at work in that mill; third, in failing to bar down loose rock which the plaintiff claims existed in the hanging wall of that mill. In failing to brace and protect the hanging wall so as to prevent loose rock dropping therefrom, by timbering, and in ordering the plaintiff to work in the mill, and assuring him it was safe for him to work therein when in fact, as the plaintiff claims, it was not safe for the plaintiff to work in the mill. This, in substance, is a statement of the negligence which the plaintiff claims the defendant was guilty of.
“If you find by a preponderance of the evidence that the plaintiff was ordered, required, or expected by the defendant to work in the No. 3 mill, and that the hanging wall of that mill was a permanent wall —that the company had got through working on that wall is what we mean by a permanent wall — and if you further find it was reasonably necessary, for the safety of the plaintiff while at work in that mill, that the hanging wall of the mill should be tested, inspected, and examined from time to time to ascertain whether it was reasonably safe for the plaintiff to work under, it was the duty of the defendant to cause such hanging wall to be tested, inspected, and examined with such reasonable frequency, skill, and care as was reasonably necessary for the safety and protection of the plaintiff while he was working under the wall, and the defendant would be chargeable with knowledge of all such loose, shaky, _ and unreliable ' ground which existed in the hanging wall, and which would have been discovered by such reasonable, careful, skillful, and diligent inspection of the wall, and of the existence of any loose, shaky, or any unreliable ground liable to fall or roll against the plaintiff while he was at work in the mill, or any characteristic or condition in the mill which rendered it dangerous for the plaintiff to work therein, under the hanging wall, of the existence of which the defendant knew, or in the exercise of due and ordinary care in the inspection and testing of the wall it should or would have known, it was the duty of the defendant to warn the plaintiff before putting or permitting the plaintiff to work in that mill, and under that hanging wall.
“Again, if you find by a preponderance of the evidence that the hanging wall of the mill could have been kept in a reasonably safe condition for the plaintiff to work thereunder by a reasonably careful, skillful, and diligent testing and inspection of the hanging wall, and by pinching or (as the miners say) barring down, as often as the same was discovered by such testing and inspection, of loose rock in the wall which was liable to fall and falling to injure the plaintiff, then it was the duty of the defendant to carefully, skillfully, and diligently and reasonably pinch and bar down from such hanging wall all such loose rock.
“Again, if you find by a preponderance of the evidence that the hanging wall above the mill No. 3 where the plaintiff claims he was injured could only be made and kept in a reasonably safe condition for the plaintiff to work therein by timbering the same, then it was the duty of the defendant to carefully, and skillfully, and diligently brace and timber the hanging wall, so as to, by means of such timber, render such wall reasonably safe for the plaintiff to work under.
“If you find that the defendant failed^ to perform any duty or duties which, under these instructions, it owed the plaintiff, and that the proximate cause of the injury to the plaintiff was the failure of the defendant to perform any such duty or duties, then the plaintiff would be entitled to recover, provided he was not himself guilty of negligence which caused or contributed to his injuries.”

The court, whether it was necessary or not, seems to have had in mind the rule that, where a duty is assumed by the master, or is imposed upon him by contract, or is customarily performed by him, it becomes a nondelegable one. I fail to find in the charge support for the criticism that the real issues and the applicable rules of law were not stated in the charge. Nor does it seem to me that it is open to the criticism that it is argumentative, or that, taken as a whole, it is favorable to the defendant and unfavorable to the plaintiif.

No reversible error having been pointed out, the judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.