author: ME. CHIEF JUSTICE BBANTLY

text:
    FRARY, Appellant, v. DWYER, Respondent.
    (No. 1,446.)

      Os Mottos' to Disarms Appeals.
    (Submitted April 14, 1902.
    Decided April 15, 1902.)

      Undertaking on Appeal.

    An undertaking on appeal from a judgment and from an order denying a motion for a new trial approved. (Following Watkins v. Morris, 14 Montana 334.)

      Aiipeal from District Court, Cascade County; J. B. Leslie Judge.

    Action- by W. S. Frary against William R. Dwyer. From a judgment in favor of defendant, and from an order denying, a motion for a new trial, plaintiff appeals. Motion by defendant to dismiss the appeals.
    Motion denied.

      Mr. F. A. Merrill, for Appellant

      Mr. T. E. Brady, for Respondent.
   ME. CHIEF JUSTICE BBANTLY

delivered the opinion of the court.

Tlie defendant, and respondent, lias submitted a motion to dismiss the appeals herein on the ground that the undertaking filed with the clerk of the district court does not conform to the requirements of the statute.

The appeals are from a judgment and an order denying plaintiffs motion for a new trial, and the undertaking’ is the same in form and substance as those approved in Watkins v. Morris, 14 Mont. 354, 36 Pac. 452, and in the following eases; Ramsey v. Burns, 24 Mont. 234, 61 Pac. 129; Nolan v. Montana Central Railway Company, Id. 327, 61 Pac. 880; Livingston Smelting and Reduction Company v. Lynch et al., Id. 241, 61 Pac. 1134; Mahoney v. Butte Hardware Company, Id. 242, 61 Pac. 1134; Boucher v. Barsalou, Id. 242, 61 Pac. 1134; Teague v. John Caplice Company, Id. 242, 61 Pac. 1134. The respondent relies upon the case of Baker v. Butte City Water Company, 24 Mont. 31, 113, 60 Pac. 488, 817 ¡ of this case it was said in Ramsey v. Burns', supra, that it if “based upon correct reasoning, reaches a correct result, and is approved.” But a clear distinction is pointed out, between tint form of the undertaking examined in Baker v. Butte City Water Company and of those examined and approved in Wat-Icins v. Morris and the other cases cited supra. Baker v. Butte City Water Company is not in point. The motion is denied.

Denied.

Mu. Justice Pigott, having been of counsel during the pendency of this cause in the district court, takes no part in this decision.


source: Caselaw Access Project

author: ME. CHIEF JUSTICE BEANTLY

license: Public Domain

text:
    STATE ex rel. HEINZE et al., Relators, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,751.)
    (Submitted January 6, 1902.
    Decided April 21, 1902.)
    Jlines and~ ill ii~ng-(Jonfiwt'tng A['ining - (Jlctims-Inspec~ion cu~d Survey .Pcnd'ing S'uit-Orders of District C~ovrfs-Dis ci'etwm-Sup i erne Cozci -t~---Su~pervisoiy Conti `ol.
    1. Under Code of Civil Procedure, Sec. 1314, allowing an inspection order to be made at any time pending an action to determine mining claims, the order may be granted before the issues are framed.
    2. Under Code of Civil Procedure, Sec. 1314, authorizing an inspection order in actions to determine mining claims, where the respective parties assort title to certain ore bodies, each basing his claim on an asserted ownership of the apex of a vein, to determine which will neceesitate a following of the vein from the surface, the court may properly grant an order requiring the owner of the eurfacs openings to allow the other party to enter such openings for the pnrpoee of surveying beneath the surface, though the latter party had complete maps up to the commencement of the euit, after which it was excluded, and work of removing the ores rapidly pnehed.
    3. Where, in a suit to determine owaerehlp of certain ore bodies, the parties baee their respective claims on the asserted ownerehip of the apex of a vein, to determine which will necessitate a following of the vein from the surface, an order requiring the owner of the surface openings to allow the other party to enter such openings for the purpose of surveying beneath the eurlace should be limited to those openings alone an inspection of which is necessary to determine the issues, though examination should be allowed of all the workings made in pursuit of the vein in the direction of the strike, to determine the continuity of its direction as well as the angle of the dip.
    4. Under Code of Civil Procedure, Sec. 1314, authorizing an inspection order in actions to determine mining claims, the fact that a temporary injunction baa been issued does not preclude the issuance of the iuepection order, as such provision makes no distinction as to tile character of relief sought.
    5. Where, in a suit to determine a mining claim, operations are continued pending the action, the court may properly designate employee of the adverse party to make weekly inspection of the premises under reasonable restrictions.
    6. The propriety of granting an order of inspection and survey, under Cede of Civil Procedure, Sec. 1314, lies very largely in the discretion of the trial court.
    7. Inspection orders should always be limited by the necessities of the case.
    ORIGINAL petition for a writ of supervisory Control, Ily F. Augustus }Ieinze and others, against the district court of die Second judiCial district and another.
    Modified and granted.

      Messrs. Mcllaiton & Goiter, Mr. J. M. Denny, and. Messrs. Toole & Bachj for Eelators.

      Messrs. F orb is cC Evans, for Eespondents.
   ME. CHIEF JUSTICE BEANTLY

delivered tlie opinion of tlio court.

Application for Avrit of supervisory control. On March 30, 3 901, F. Augustus Heinze and tlie Jolmstmvn Mining- Company, a corporation, filed their complaint in the district court of Silver Boav county against the Boston & Montana Consolidated Copper & Silver Mining Company, alleging, in substance, that they Avere the OAvners of the Minnie Healy mining claim, in Summit Valley mining district, Silver Boav county, Mont, and of certain veins having their tops or apices therein; that the defendant, by underground workings made within and from adjoining property and premises in its possession and control north of plaintiffs5 premises, had entered beneath the surface of the Minnie Healy claim, particularly that portion of the claim lying east of the Avest end lines of the Piccolo and Gambetta claims; that by means of certain crosscuts, tunnels, etc., defendant had cut into the veins or lodes belonging to the plaintiffs, and Avas engaged in removing ore therefrom; that the defendant had entered into- the possession of these portions of the Minnie Healy Areins belonging to plaintiffs, and had ousted and ejected plaintiffs therefrom; and that the defendant asserted .title thereto adversely to the plaintiffs, but that such claim of title Avas Avithout any foundation in fact. The complaint concludes Avith a prayer that the plaintiffs be decreed 1o be the ow-ners and entitled to the possession of said veins and ore bodies throughout their entire depth, even though in their descent into the earth they so far depart from a perpendicular as to pass beyond the boundary of the Minnie Healy and into the ground of the defendant; that defendant be required to set forth its adverse claims in order that they might be adjudged to be Avithout foundation;. that tlie title of the plaintiffs be forever quieted; and that the plaintiffs have general relief. On August 11 thereafter, upon application of plaintiffs, on the complaint, supported by affidavits, the court issued an order requiring the defendant to appear and show cause on August 31, why an injunction should not issue to restrain it from removing any ores from the disputed veins and ore bodies pending the suit, and in the meantime to cease its operations until a hearing could be had under the order. The order also restrained the defendant from mining and extracting ore from certain portions of a lode within its own ground north of the south side line of the Piccolo, to which the plaintiffs claimed title by virtue of their extralateral rights upon the veins described in the complaint.

The situation of the claims of the respective parties, and the subject of the controversy between them, may be readily understood by reference to the subjoined diagram. The Piccolo and Gambetta claims to the north belong to the defendant. The portions of the surface of these claims which conflict with the Minnie liealy, as its location was originally made, are excluded from the Minnie Healy patent, and there is no question as to surface rights. The legal title to the Dayton claim is in the defendant, corporation, but an interest therein is claimed by P. Augustus Heinze and his brother, Arthur P. Heinze. The ore bodies in controversy’ include those found on the 800 and 900 levels in the triangular portion of the Piccolo claim immediately to '¡he north and in the neighborhood of the south line of the Gambetta, the plaintiffs asserting that these belong to the veins which have their apices to the south in the Minnie Healy and pass through the east and west end lines of the claim. Their claim is therefore based upon an asserted right to follow’ these veins on their dip toward the north, and into the ground of the defendant. Though it does not appear at what angle the Minnie Healy veins dip into the earth, it does distinctly appear that the purpose of the action is to settle the controversy as to the title to the ore bodies, not only within the surface boundaries of the Minnie Healy claim, but also within the boundaries of the Piccolo and Gambetta claims.

The plaintiffs’ workings are reached through the Minnie Healy shaft. The defendant conducts its operations through the Leonard shaft.

On September 3, 1901, the defendant in that cause tiled its petition therein in the district court, alleging that its only means of access to the workings made by the plaintiffs, through the Minnie Healy ground was through the Minnie Healy shaft, and asking that it be allowed access to the Minnie Healy claim and the workings therein for the purpose of making an inspection and survey to obtain facts to enable it to make defense to the suit. This petition was heard on November 14. On December 7, after consideration by the court, the order granting the inspection and survey was made according to the prayer of the petition, and it was ordered that the defendant have access to the Minnie Healy claim and all openings therein for the space of ten days, through its agents and representatives, not exceeding six in number, with a surveyor’s assistant. The plaintiffs were required to furnish ingress and egress, and to hoist and lower the defendant’s representatives into, and from the premises. It was also further ordered that two representa-tires of the defendant be permitted to enter the Minnie Ilealy workings at least once each week to inspect and examine the work therein os it proceeded, until the determination of the action. On December 19, 1901, the plaintiffs in that suit filed their petition in this court asking this court to issue its order of supervisory control directed to the district court, and requiring it to set aside and vacate'the order, on the ground that it was not justified by the showing made at the hearing, and that it was oppressive.'

The question now before this court is whether the relators, plaintiffs in the action in the district court, are entitled to1 the relief sought.

It is argued on behalf of relators that the order was not justified, because the evidence adduced at the hearing showed no necessity for it. It appears that the court refused an injunction pendente lite, at the hearing under the order of August 1Y, and that the cause stood on demurrer at the time the order now complained of vías made. It is thus manifest, counsel say, that there is yet no defined issue to try, and that the inspection order, if made at all, should have been deferred until the issues in the case should have been made up. "We do not think this position tenable. The ajiplication was made under the authority of Section 1314 of the Code of Civil Procedure, which allows an inspection order to be made at any time during the pendency of the action. The purpose of the section is to enable the parties to- present the facts of the case to the court, so that it may intelligently adjudicate the rights involved. (State ex rel. Anaconda Copper Mining Co. et al. v. District Court, 25 Mont. 504, 65 Pac. 1020.) In order to do this it is often necessary that the parties should be in possession of the facts at an early stage of the action, so that they may be able to frame intelligently the issues to be tried. Issues properly framed are as essential to a just and fair trial of the rights of the parties as are the facts necessary to support them. The petition alleged, among other things, that the order was necessary to enable tlie defendant to ascertain its rights in the premises, and (be court, as it should, allowed it to produce its evidence to support this allegation, evidently upon the theory that it required other facts than those already in its possession to enable it to frame its defenses. To the evidence thus adduced tending to show cause for the order, as required by the statute, must our attention be directed in order to determine whether the action of the court was proper. It must be borne in mind that rhe respective parties assert title to certain ore bodies, each basing its claim thereto upon an asserted ownership of the apex of a vein or veins, to which they belong. The question to be tried in the cause is whether the apex is in the ground of the plaintiffs, or in that of the defendants in the action. In order to determine this, it will be necessary to follow the rvorkings from the surface to where these ore bodies are situated, and to present to the court at the hearing all the phy&ical and geological facts from the ¡mint of view of both parties, not only as they were open to observation at the time the action was brought, but from time to time as development progresses.

The evidence tended to show that prior to the filing of the complaint the defendant in the action had free access to the Minnie Ilealy workings, and that it had complete maps of all the work done up to that time. After that date, however, and until the hearing, it had been excluded from the mine, while work was constantly being pushed and ore was being removed at the rate of several hundred tons per’ day. Access is not possible, except through the Minnie Ilealy shaft, and the conditions revealed by the work done from March until September were entirely unknown to it. The propriety of granting such an order in any case lies very largely in the discretion of the trial court. Under the facts presented, we cannot say that the court abused its discretion. If it had appeared that the defendant was altogether ignorant of the development work done by the owners of the Minnie Ilealy mine, we apprehend that no complaint would have been made of the order. It is upon this development, and tlie facts as they appear to tbem, that tlie plain ti ifs base their claim of title to ores beneath the surface of defendant’s claims. Tlie defendant, under these circumstances, would have been entitled to the order, almost as a matter of course. The necessity to know the facts as to the development done' during the time elapsing* from March until September was no less urgent. That it already has part of .tlie information obtainable under the order is no sufficient reason why the defendant is not entitled to the rest. In any 'event, we do not think that we should direct the district court to vacate the order entirely and postpone the- examination until the issues have been made up. It may be that before that time arrives important openings will have become destroyed by caving, or filled with waste, thus rendering the inspection more difficult and expensive.

We think, however, that the order should be modified in one important particular. It appears that the owners of the Minnie Healy mine have extensive workings to the south, both within their own boundaries and beyond them into adjacent claims. The order is extensivo enough to permit an inspection and survey of all these workings also. It- should have been limited to those only a knowledge of which would avail the defendant; namely, those extending easterly and -westerly along the lodes, and from these north toward and into the Piccolo, Gambetta, and Dayton claims. No controversy e-xists between the parties as to the facts shown by the openings to the south. There is no fact in. the record to warrant, an order with reference to them. Inspection orders should always be limited by the necessities of the case. When they exceed this limit, they become the means of oppression. Facts might perhaps be shown justifying an order extending the survey to the whole of the Minnie Healy claim; but they do not appear in this record.

It is argued by counsel for the relators that the order should not extend to the openings into the Dayton claim. It will be observed, however, that the claim is made by the relators that the veins in controversy dip toward the north and cross both of their end lines. The defendant should be allowed to examine all the workings made in pursuit of these veins in the direction of their strike, in order to determine the continuity of their direction from east to west, as well as the angle of the dip. Observations made beyond the west end lines of the Piccolo and Gambetta might be of material assistance in determining conditions east of that point and within the sphere of the actual controversy.

It is also suggested by counsel for relators that Section 1314, supra, does not authorize an inspection order in a case in which an injunction has been issued, since to permit entry by the enjoined party during the pendency of the injunction dissolves it pro tanto, which may be done only upon motion made for that purpose at the proper time. A -sufficient answer to this suggestion is that the statute makes no distinction as to the character of relief sought in the particular action. Furthermore, upon the relators’ own showing, the injunction asked for in the canse was denied. The suggestion, if of sufficient importance to demand consideration in any case, is not pertinent here.

It is not unusual in controversies of this character to permit inspections from time to time as operations progress during the pendency of the action. In this case the relators are pursuing their operations in the.disputed territory. We do not think it improper for the court, under these circumstances, to permit two employees of the defendant, designated by name, to make weekly inspection of the premises under reasonable restrictions.

The inspection should be limited to the necessities of the case,-as herein indicated. In other respects the order was properly made, and must therefore stand.

The writ will accordingly issue, directing the district court to modify the order so as to permit the survey and inspection of all the openings in the Minnie Tlealy claim along the veins in controversy, from east to west, and also all openings made by relators in pursuit thereof toward the north, whether the same be within or without the boundaries of the claim, specifically restricting the inspection of these limits. •

(Submitted May 6, 1902. Decided May 12, 1902.)

Modified.

ÜN Re HEART NO AND M()TTO X TO MODIFY THE JUDGMENT.

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court.

Relators have submitted a motion for a rehearing herein, basing it upon several grounds, all of which question the sufficiency of the evidence to- support the order made by the district court. This was the principal contention made at the hearing. After a careful examination of the facts presented, aided by argument of counsel, we reached the conclusion that the contention could not be sustained. Nothing is now called to our attention which we think justifies a change in the view then taken. Since the opinion in this case was written we have had occasion to consider in another case the nature of the showing necessary to support an inspection order in a pending action, with the result that we are confirmed in the conclusion reached upon the investigation of this case. (State ex rel. Geyman v. District Court, 26 Mont. 433, 68 Pac. 861.) The motion for a rehearing is therefore denied.

Counsel for defendants, in connection with the motion for rehearing, have submitted an application for a modification of the order made in the case by this court, so that it may point out definitely what portions of the workings in the Minnie ITealy claim are excluded from its operation. It was our purpose to have the inspection extend to the openings on all the A'eins in controversy in the action in the district court, as described in the complaint. They are described therein as passing through the east and west end lines of the Minnie Healy" claim; and having their apices between the south side line of the Piccolo claim, as surveyed, and the south side line of the Minnie llealy claim, as surveyed. It is alleged in the complaint that, the defendants are trespassing upon all of these veins by means of their workings made through the Leonard, shaft. The controversy therefore extends to all of'the veins described in the complaint as having their apices north of the south boundary of the Minnie llealy. It appears from the evidence that (here are workings extending south from the Minnie llealy into the Tramway. The intention of this court was to require the district court to exclude from the order these workings only, and to permit the examination to extend to all workings made upon any or all of the veins brought into’ the controversy in the action. As there may likely arise a controversy between the parties as to the extent of the inspection permitted under it, the order of this court will be modified to read as follows:

The writ, will accordingly issue directing the district court to modify its order so as to permit a survey and inspection of all of the openings made for the purpose of developing any of the veins found in the Minnie Healy claim, whether these openings extend from east to west, or toward the north, together with all connections between any of them, but excluding all openings leading south into, the Tramway claim and connecting the openings therein with those made in the Minnie Healy claim.


author: MR. CIILEF JUSTICE BRAN TRY

text:
    TINKEL, Appellant, v. GRIFFIN et al., Respondents.
    (No. 1,741.)
    (Submitted January 28, 1002.
    Decided April 28, 1902.)

      Elections — Counties — Indebtedness — Submission of Question to Electors — Form of Ballots — Majority Required.

    1. Constitution, Art. XIII, Sec. 5, prohibits any county from incurring any indebtedness for any single purpose, exceeding $10,000, without the approval of a majority of the electors voting at an election to be provided by law. Political Code, Sec. 4270, authorizes the county commissioners to submit such question to vote. Section 4272 provides for the giving of notice of such election, and provides that the election shall be in the manner prescribed by law in regard to the submission of questions under the general election law. Section 4273' only requires that there shall be printed on the ballots the words “For the Loan” and “Against the Loan.” Held, that ballots so printed in such an election were sufficient, without further specifying the purpose and nature of the proposed loan, as Political Code, Sec. 1354, requiring questions to be voted on to be presented to the people in such a manner as to enable them to vote thereon in the manner provided in the title in which the section is found does not apply thereto.
    2. Constitution Art. XIII, Sec. 5, prohibits counties from contracting an indebtedness exceeding $10,000, for any purpose, without the approval of a majority of the electors voting at elections to be provided by law. Political Code, Sec. 4270, authorizes the county commissioners to submit such question to vote. Held, that a favorable majority of all the votes cast on the question of incurring the indebtedness, at a general election at which the question is submitted, is sufficient to authorize the indebtedness, though such majority is not a majority of all the electors voting at such election.

      Appeal from District Court, Flathead County; D. F. Smithy Judge.

    INjuxctioN by L. Tinkel against W. H. Griffin and others, board of county commissioners of Flathead county, to restrain a bond issue. From a judgment denying an interlocutory injunction, the plaintiff appeals.
    Affirmed.

      Messrs. Foot & Pomeroy, for Appellant.
    'Cited: Howland v. Board of Supervisors, 109 Cal. 152; Belknap v. Louisville, 36 S. "W. 1118, 34 L. R. A. 256; People v. Berkley, 102 Cal. 298; Slate v. Babcock, 17 Neb. 188;
      State v. Foral-er, 46 Ohio State, 677; Feo pie, Wheaton v. Wiant, 48 Ill. 263; Everett v. Smith, 22 Minn. 53; State, Jones v. Lancaster Comity Comers, 6 Neb. 474; State v. Benton, 29 Neb. 460; Dulce v. Broten, 96 N. (I 127; State v. Francis, 95 Mo. 44.
    Jl/r. Janies Donovan, Attorney Gene.ml, for Respondents.
   MR. CIILEF JUSTICE BRAN TRY

delivered the opinion of the court.

At the general election held on November 6, 1900, there was submitted to the electors of Flathead county the question whether the hoard of commissioners of the county should issue its bonds to secure a loan of $55,000 to create a fund for the purpose of building and furnishing a county court house and jail. Upon canvassing the returns of the vote cast upon this question, the commissioners declared that the proposition to secure the loan had been approved by the requisite majority, and were proceeding to issue and sell the bonds under the authority thus assumed to have been given. Thereupon this action was brought by the plaintiff, an elector and taxpayer of the county, to enjoin further proceedings in the matter on the grounds that the question had not been submitted to the electors in the manner prescribed by the statute, and that less than the required number of those voting at the election had signified their approval. Upon the filing of the complaint, application was made io the district court for an injunction pendente lite. The application having been denied, the plaintiff appealed.

1. It is argued by counsel that the election was invalid for the. reason that the ballot prepared by the county clerk did not sufficiently set Firth the question to be submitted to the electors, in that it was not printed upon the ballot at length, immediately over the spaces where the electors were to indicate their preference. The form of the ballots, so far as concerns tlie present inquiry, was as follows: *

It is admitted that, due notice was published as required by-statute; but it is insisted that the statute also requires any question submitted to the electors of the state, or of any division thereof, to be printed in full upon the ballot in the same way and in the same relative position as the name of a particular office, so that-a voter may have it before him when he marks his ballot, and that, unless this requirement is observed, the election is invalid.

Section 1354 of the Political Code, cited in support of this contention provides: “Whenever the secretary of state has duly certified to the county clerk any question to be submitted to the vote of the people, the county clerk must print in the regular ballot, hi such form as will enable the electors to vote upon the question so presented in the manner in this title provided. The county clerk must also prepare the necessary ballots whenever any question is required by law to be submitted to the electors of any locality, and any of the electors of the state generally, except that as to all questions submitted to the electors of a municipal corporation alone, the city clerk must prepare the necessary ballots. * * So far as this provision refers to the printing upon the ballot of the question submitted, its meaning is not clear. As first enacted by the legislature in the Code of. 1895, it read: “Whenever the secretary of state has duly certified to the county clerk any questioin,” etc., 4:‘ the county clerk must print on the regular ballot the question in such form as will enable the electors to vote,” etc. It was amended by a subsequent Act of the same session (Act March 19, 1895), from which the section as it now stands was taken. The omission from the amended Act of the words “the question” was probably by inadvertence, since the active verb “print,” in the present reading, is left without an object. If' these words be supplied, as they doubtless should be, the sense is made clear, as far as concerns questions to- be submitted to the electors of the state at the general election. It is only by inference that the provision may be extended to questions submitted to the electors of a county. Nor the purpose of this case, we shall concede that this would be the proper inference to be drawn from the language used, and that it would control in- the absence of special provisions touching matters of local concern. There are, however, special provisions with reference to the issuance of bonds by counties, enacted under the authority of the constitution, and these must be deemed controlling upon this subject. The Constitution, Article XIII, Section 5, provides: “* * No county shall incur any indebtedness or liability for any single purpose to an amount exceeding ten thousand dollars ($10,000) without the approval of a, majority of the electors thereof, voting at an election to be provided by law.” Under this provision the legislature might have declared that the election should be held only at the time when a general election is held, and that the ballot used should in all respects comply with the requirements with respect to questions concerning the state at large.’ Instead of doing this, however, it has provided for a special election to be held whenever, in the opinion of the county authorities, the necessity for an issuance of bonds arises. The provisions on this subject are found in Sections 4270 to 4274, inclusive, of the Political Code. Section 4271 declares that “whenever it is necessary to submit to a vote of the electors of the county the question of making a loan, the board [of commissioners] must first determine the amount necessary to be raised.” The next section (4272) provides for the giving of notice, and then proceeds, “and the election hold and conducted, and the returns made in all respects in the manner prescribed by law in regard to the submission of questions to the electors of a locality under the general election law.” Section 4273 provides that there shall bo printed upon tbe.ballot tlie words “Nor the Loan” and “Against the Loan/’ but nothing further; the legislature evidently proceeding upon the theory that Sectionl354 contains no explicit provision on this subject, and that the notice given by the board of the purpose and amount of the loan, which must be published, under Sections 1318 and 1321 of the general election law, is sufficient notice to the electors of the question at issue. Construing all these provisions together, we think this intention is manifest. Section 4272 therefore has no reference to the printed form of the ballot, but merely requires that the provisions of die general election law touching the qualifications of the voters, the appointment of judges and clerks, the secrecy of the ballot, and the method of voting should be observed. This must necessarily be the import of these provisions, else we must add to them a further requirement that the board may not submit the question of a loan at any other time than at a general election, whereas the clear inference, otherwise, is that this may be done at any time. The fact that the board chose to hold the election on the same day upon which the general election fell makes no difference in the requirements to be observed. The clerk followed the direction contained in Section 4273, and that was sufficient.

Counsel say that it is often advisable for the board to sub-' mit propositions for loans for specific amounts for different purposes separately at the same election, so that the electors may,-if they choose, reject one and approve another, whereas the construction we have given the provision of the statute renders this course impossible. We do not think that this result necessarily follows. There would seem to be no insuperable objection io submitting separate propositions for two or more loans at the same time, provided the ballot should be so arranged, with proper designation of the different purposes, that the electors could vote upon them separately. The question does not arise in this case, however, and we would not venture to anticipate it and decide it now. We are satisfied that our views of the provisions of the statute, upon the facts presented in this case, .are reasonable, and carry out their spirit and intention; it being admitted that the purpose for which the loan is intended is a single purpose.

2. It appears that the highest number of votes cast for any office voted upon at the election was 2,400, that 1,000 were cast in favor of the issuance of the bonds, and that 462 were cast against it. It thus clearly appears, counsel say, that the proposition did not receive a majority of the electors voting, within the meaning of Section 5; Article XIII, of the Constitution, svpra.

It will be observed that the requirement is that, the approval must be by a majority of the electors of the county voting, not at a general election, but at an election to- be provided by law.

As we have seen, such an election has been provided by law to be held at any time it may be deemed necessary by the board of commissioners. It happens, also, that the manner of holding it is the same as that prescribed for general elections. Thus it may, with perfect propriety, be held at the same time at which a genei*al election is held; but the fact that this is the case does not require a different standard of estimating the majority necessary from that which would govern if the election is held on a different day. The evident meaning of the constitution is that the approval must be the result of an expression of a majority of those voting. The expression “majority of the electors thereof voting at an election,” etc., clearly means a majority of those who vote, and not a majority of all the electors of the county, or of those who vote upon any other issue, at the same or some other time. If the election on the issue of a loan liad been upon another day, there would have been no question but that it would have had a majority of the electors of the county who voted. It was none the less a special election, within the meaning of the law, though in this pai*-ticular instance it was held, for convenience, on the day fixed for a general election. It is the theory of our government that those electors control public affairs who take a sufficient interest therein to give expression to their views. Those who refrain from snc.li expression are deemed to- yield acquiescence.

In a recent case tlie court of appeals of Kentucky, having under consideration a similar constitutional provision, said: “It is a fundamental principle in our system of government that its affairs are controlled by the consent of tlie governed, and, to that end, it is regarded as just and wise that a majority of those who are interested sufficiently to assemble at places provided by law for the -purpose shall, by the expression of their opinion, direct the manner in which its affairs shall be conducted. When majorities are spoken of, it is meant a majority of those who feel an interest in the government, and who have opinions and wishes as to how it shall be conducted, and have the courage to express them. It has not been the policy of our government, in order to ascertain the wishes of the people, to count those who- do not take sufficient interest in its affairs to vote upon questions submitted to them. It is a majority of those who are alive and active, and express their opinion, who direct the affairs of the government, not those who are silent and express no opinion in the manner provided by law, if they have any. Before reaching a conclusion that those who framed our fundamental law intended to change a well-settled policy by allowing the voter who is silent and expresses no opinion on a public question to be counted, the same as the one who takes an interest in and votes upon it, we should be satisfied that the language used clearly indicates such a purpose.” (Montgomery County Fiscal Court v. Trimble, 41 S. W. 773, 42 L. R. A. 738.)

We are aware that the decided cases are somewhat in conflict; but, in the absence of an express direction requiring the application of a different rule, we think this fundamental principle should control in this case, as giving effect to- the clear intention of the constitution. The following cases we cite as support of this view: Smith v. Proctor, 130 N. Y. 319, 29 N. E. 312, 14 L. R. A. 403 ;Howland v. Board of Supervisors, 109 Cal. 152, 41 Pac. 864; Cass County v. Johnston, 95 U. S. 360, 24 L. Ed. 416; Carroll County v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517; Gillespie v. Palmer, 20 Wis. 544.

Tlie order of tlie district court was correct, and must be affirmed.

Affirmed.


author: MR. CHIEF JUSTICE BRANTLY

text:
    STATE ex rel. GEYMAN, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,811.)
    (Submitted April 28, 1902.
    Decided April 29, 1902.)

      Mines and Mining — Inspection and Survey of Mine — Power of Gourt to Grant.

    Section -1817 of the Code of Crril Procedure is not applicable where the petitioner asserts no interest in the property of which inspection is sought, or through which entry is necessary to inspect adjoining property.

      Gertiorari by tbe state, on the relation of Charles Geyman, against the district" court of the Second judicial district of Montana, Hon. E. W. Harney, judge thereof, to review an order made by the court.
    Order annulled.

      Messrs. McBride & McBride> for Relator.

      Messrs. Forbis & Maltison, Messrs. McH attorn & Cotter, and Mr. John Lindsay, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Application for writ of certiorari to have reviewed and annulled an order made by the district court of Silver Bow comity on April 18, 1902, permitting one Hubert to enter certain of tbe' underground workings of the Yankee Boy lode claim, belonging to tbe relator herein, and to malee inspection and survey thereof.

Hubert, in his petition filed in the district court, alleged ownership of adjoining property, but claimed no interest in the Yankee Boy premises. The purpose sought by the survey was to discover whether the relator had entered, by means of his underground workings, beneath the surface of Hubert’s property and removed ore therefrom. No suit was pending • between the parties. The order was made upon the theory that the court was authorized to grant it under Section 1317 of the Code of Civil Procedure. This section was construed in State ex rel. Anaconda Copper Mining Co. v. District Court et al. (No. 1,759), 26 Mont. 396, 68 Pac. 570, and in State ex rel. Anaconda Copper Mining Co. v. District Court et al. (No. 1,775), 26 Mont. 412, 68 Pac. 1134, decided at the present term. It was there held that this section has no application to a •case in which the petitioner asserts no interest in the property of which inspection is sought, or through which entry is necessary to inspect adjoining property. Under authority of those cases, the order under consideration was without jurisdiction, and must be annulled. It is so ordered.


author: MR. JUSTICE PIGOTT

text:
    CUMMINGS, Appellant, v. HELENA & LIVINGSTON SMELTING & REDUCTION CO., Respondent.
    (No. 1,383.)
    (Submitted November 20, 1901.
    Decided April 29, 1902.)

      Master and Servant — Mining—Action for Injury — Motion for Nonsuit — Bide of Consideration — Contributory Negligence —Pleading—Burden of Proof — Evidence — Contributory Negligence — Ordinary Care.

      1. On motion for a nonsuit, the evidence will be regarded in the light most favorable to plaintiff, and that which it tends to prove must be taken as proved.
    2. where plaintiff’s own evidence shows that he ought not to recover, a non-suit should be granted.
    -3. Though, in actions for injuries, the absence of contributory negligence need not be pleaded, if the complaint shows that plaintiff’s own act was a proximate cause of the injury it must also state his freedom from negligence in doing such -act.
    4. Where plaintiff’s evidence in an action for injuries shows that the injuries were caused in whole or in part by his own acts, the burden is cast upon him to prove that he was exercising ordinary care at the time.
    5. Where, in an action for injuries, plaintiff’s evidence shows, beyond question, that his own omission to use ordinary care contributed immediately to, or itself caused, the injury, a nonsuit should be granted.
    6. Evidence reviewed, and held, that plaintiff, in proving the circumstances of the accident and injury, succeeded in establishing for the defendant the defense of contributory negligence, and hence, the granting of a nonsuit was proper.

      Appeal from, District Court, Jefferson County; M. IT. Par-leer, Judge.

    ActioN by Martin Cummings against tlie Helena & Livingston Smelting A Reduction Company. From a judgment in favor of defendant, plaintiff appeals.
    Affirmed.

      Mr. T. J. Walsh, and Mr. C. B. Nolan, for Appellant.
    On tbe review of a motion for nonsuit, everything which the evidence tended to prove will be assumed to be true by the appellate tribunal. (Creek v.' McManus, 13 Mont. 157; Wetz-stein v. Joy, ib. 444; Mayer v. Carothers, 14 ib. 288; State ex rel. PigoU v. Benton, 13 Mont. 322; Powers v. Klenzie, 15 Mont. 179; Jensen v. Barbour, 15 Mont. 586; Soyer v. Great Falls Water Co., 15 Mont. 5; Emerson v. Eldorado Ditch Co., 18 Mont. 254; Holier Lumber Co. v. Fireman's Ins. Co., 18 Mont. 288; State ex rel. Harmon v. Conrow, 19 Mont. 106; Morse v. Com. of Granite Co., 19 Mont. 453; Cameron v. Commercial Co., 22 Mont. 312.)
    Negligence is generally an inference from many facts and circumstances, all of which it is the province of the jury to find. It is not the' duty of the court in such cases, any more than in any other, to usurp the province of the jury, and pass upon the facts; and a nonsuit can only be granted in such cases where the evidence of the misconduct of the party injured is so clear and irresistable as to put the case on a par with those cases where a nonsuit is granted for a failure to< introduce evidence sufficient to go to the jury upon some point essential to plaintiff’s case. (Wall v. Helena 81. Baihoay Go., 12 Mont. 49.) The primary duty devolved upon the defendant to employ competent men. This duty it owed to the plaintiff. Equally imperative was it if the incompetency of the servant came to its knowledge after his employment to- discontinue the service of such employe. (Kelley v. Gable Go., I Mont. 80; Kelley v. Fourth of July Go., 16 Mont. 491; Webster Manufacturing Go. v. Schmidt, 17 Ill. App>. 49; Dysart v. Kansas City, etc., 145 Mo. 83; Maitland v. Gilbert Paper Go., 97 Wis. 476.)
    While this duty devolves upon the master' to furnish competent servants, if the fact of incompetency is known to the fellow servant and he continues in the employ of the master, there is on his part an assumption of the risk. (Stafford v. Chicago, etc. B. Go., 114 Ill. 244.) If, however, the master promises that the danger due to the neglect of the fellow servant will be remedied, a retention of employment for a reasonable time will be warranted, without the assumption of risk therefrom, or without contributory negligence, unless the danger is so apparent, imminent and immediate .that a man of ordinary prudence would refuse so to> remain. (Smith v. Backus Lumber Go., 64 Minn. 447; Kelley v. Fourth of July supra; DaugheHy v. Midland Steel Go., 53 N. E. Eep. 844; McFarland Garriage Go. v. Potter, 153 Ind. 107; Nelson v. Sham, 102 Wis. 274.) If the master promises the employe that an incompetent servant will be removed, he is justified in remaining a reasonable time. (Lyberg v. N. P. BaMroad Go., 38 N. W. Eep. 632.) The instances are exceedingly rare where a servant can be held guilty of contributory negligence as a matter of law, where a promise has been given. The question is invariably one for the jury. (Union Manufacturing Go', v. Morrissey, 40 Oh. St. 148; Northern P. Go. v. Babcock, 154 IT. S. 190; see cases cited, 40 L. E. A. 787, Note.) Whether there was an actual promise is a question for the jury where it arises from implication. (82 Iowa, 179.) It is always a question for the jury as to whether the servant’s reliance on a promise by the master induced'him to continue work. (Manufacturing Co. v. Morrissey, 40 Ohio St. 148; Rerihcnberger v. N. IF. Consolidated Milling Co., 57 Minn. 461.)
    Where a master is negligent in furnishing defective machinery, one who continues in service under promise by another servant to repair is injured, it is immaterial whether' the servant making the promise had authority to do so, provided the injured servant upon reasonable grounds supposed him to have. (Bells Lumber Co. v. Erickson, 80 Fed. 257.) If the servant has reasonable grounds for believing that the master will remove the source of danger, whether the impression is the result of an explicit promise or not, he may continue working without culpability as long as the jury may consider it reasonable to retain that belief. (Hoffman v. Dickinson, 31 W. Va. 142.) It is not necessary that there should be a formal protest or an express promise. (Rothenberg v. N. 17. Con. Milling Co., supra; Pieart v. Chicago R. I. & P. Ry. Co., 82 la. 148.)
    Much emphasis is given to the fact that no complaint was made by the plaintiff. It is purely a question as to which assumes the risk, the plaintiff or the defendant. (Schlitz v. Pabst, 59 N. W. 188; Green, v. Railroad, 17 N. W. 378; Smith v. Dumber Co., 67 N. W. 308.)
    A foreman of a mine having authority to employ and discharge a laborer employed therein, is not a fellow servant with such laborea' so as to. relievo the owner from liability. (Kelley v. Cable Co., 7 Mont. 80.) Whether a foreman of a mine is a fellow servant is a question of fact for the jury. (Wellsville Coal Co. v. Schwart, 177 Ill. 272; Hill v. Winston *^5 N. W. 1030.) That parties are under his supervision and subject to his control is the best evidence that he is a vice principal. (Union Pacific Railway Co. v. Doyle, 70 N. W. Eep. 43.) One who has power to employ and discharge laborers in his department is a vice principal. (Port Smith Oil Go. v. Sloverf 58 Ark. 168.) It was the dirty of the master to employ competent servants; if instead of performing this obligation, he engages another to do it for him, he is answerable for the neglect of that other, no matter what his position as to' other matters. {N. P. B. Co. v. Paterson, 162 IJ. S. 346; Hess v. Rosenthal, 160 Ill. 621.) This doctrine is very clearly and forcibly announced in an elaborate note, 15 Am. State Keports, p. 595.
    The dirties of the master above enumerated are those imposed upon him by law. They are positive, absolute and personal, and the master, whether an individual or a corporation, cannot evade liability by delegating their performance to another. No duty belonging to the master to perform for the safety and protection of his servants can be delegated to any servant of any grade so as to exonerate the master from liability to a servant who has been injured by its non-performance. The agent to whom such duty has been delegated, whoever he may be, and notwithstanding he may be a fellow servant in other respects, is a vice principal or representative of the master. In other words, he is the master’s alter ego', whose negligence1 is that of the master, and for which the master is responsible, whether an employe or a third person is injured thereby.
    Contributory negligence is a matter of defense, and plaintiff need not allege or prove its absence. (Higley v. Gilmer, 3 Mont. 96; Nelson v. City of Helena, 16 Mont. 22; Millville v. Pac. Muí. L. I. Go., 19 Mont. 650.) If the question of negligence or contributory negligence is a fairly disputed question of fact, it must be resolved hv the jury. (Wall v. Helena St. Railway Co., 12 Mont. 50.) Contributory negligence being an affirmative defense cannot- be considered on a motion for a nonsuit at the close of plaintiff’s main case: (Powell v. Southern Railway Co., 125 N. 0. 370.) The present case differs in principle from one where the proximate cause of the injury was plaintiff’s own act, in that event it would be incumbent upon him to show that he was free from contributory negligence. (Prosser v. Railway GoV Mont. 388.)
    It was error to deny plaintiff’s application for leave to introduce supplementary proof. While conceding that a large measr tire of discretion vests in the trial court in a matter- of this kind, we feel that here there was an absence of any reason why the applicatioin should be denied. (See Pitts v. Florida Cenr tral R. R. CoV S. E. Eep, 19, 189.)

      Messrs: Chillen, Day £ Cullen, and Messrs. Toole £ Bach, for Ilespondent.
    There is no dispute or disagreement between counsel as to the rule applicable to the review of the evidence on motion for nonsuit. Everything which the evidence tends to. prove will be assumed to be true. But it is what the evidence tends to prove that is assumed to be true. Where the facts are undisputed and but one inference.can be drawn from them, the plaintiff’s right to recover thereunder is a question of law. And where the plaintiff fails to establish any fact from which the defendant’s negligence could be inferred, the plaintiff is not entitled to recover and the motion should be granted. Ho, too, where the plaintiff’s own evidence establishes his contributory negligence it bars his recovery as effectually as a failure to introduce any evidence upon a point essential to his case, and a motion for nonsuit should be granted. (Wall v. Helena Ft. Ry. (do., 12 Mont. 49; 1 Amer. & Eng. Ene. Law (2d Ed.), 454.)
    It is well settled that to make the master responsible for the negligence of the incompetent servant, it must not only appear that the servant was incompetent, but it. must also appear that the injury resulted from such incompetencv. (12 Amer. & Eng. Enc. Law, 918, and cases cited.) The facts in this case are very similar to those recited in McAndreirs v. Railway C'o., 15 Mont. 299. In order to relieve the servant from the assumption of risk, the master should have induced the servant to- waive his right to leave the service, either by taking upon liimself tbe responsibility for injuries wbieli might result, or by leading the servant to believe that the danger would be removed. Where the declarations of the master are made for his own benefit, or for the purpose of advancing his owm interest, they will not amount in law to such a promise as will relieve the servant from, the assumption of risk. (International & G. N. Ry. Go<. v. Turner (Tex.), 23 S. W. Hep-. 146; see also Lewis v. New York & N. E. By. Go., 26 N. E. 430.)
    Portions .of a mine from which ore is being taken, and which as the work progresses it becomes necessary to timber, are not, from the time it becomes necessary to timber them, places for work, within the rule requiring a master to furnish his employes a safe place to work. (Petaja v. Min. Go., 66 N. W. 951.) It is not necessary that a servant should be warned of every possible manner in which injury majr occur to him, nor of risks that are as obvious to him as to the master, and where a mature and experienced man engages in, a dangerous occupation, with the risks of which he is familiar, and is injured, not.through defect in the appliances, but by the manner of their operation, incident to the business, he cannot recover against the master. (Logging Go. v. Sclmeide?, 14 Eed. 195.) “An important consideration, often overlooked, is whether the structure, appliance or instrumentality is one which has been furnished for the work in which the servants are engaged, or whether the furnishing and preparation of it is itself part of the work which they are employed to perform.” (Petaja v. Min. Go. (Midi.), 66 N. W. 951; Smith v. Gramp Go., 35 N. Y. 8. 534; Durst v. Carnegie Steel Go. (Pa.), 33 Atl. ,1102; McCarthy v. Iron Works (La.), 20 So. 171; Kelley v. Gable Go., 7 Mont. 70; Retaja v. Iron Mi/n. Go., 64 N. W. 335; Linton Goal & Mining Go. v. Persons, 43 N. E. 651; Spellman, v. Ry. Go., 34 S. W. 298; Kelley v. Fourth of July Mining Go., 16 Mont. 496.)
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

The plaintiff, having suffered ¡personal injuries in a mine situate in Jefferson county and operated by tlie defendant, brought this action to recover $35,000 as damages. The injuries are alleged to have occurred through the defendant’s negligence. When the plaintiff rested, the court granted a non-suit upon several grounds, one being that the plaintiff had assumed the risk of the accident which occasioned the injury, and another being that he had been guilty of contributory negligence. Judgment for the defendant was then entered, and the plaintiff has appealed.

On motion for nonsuit, whatever the evidence is sufficient to prove in favor of the plaintiff must be considered as established; in other words, when sirch motion is interposed, the truth of the evidence tending to support the plaintiff’s case must he assumed and must be regarded in the light most favorable1 to him, — that which the evidence tends to show must be taken ¡is proved. This Avell settled rule has been repeatedly declared and applied by this court. No less well settled is the rule that if the plaintiff, in attempting to make a case, shows that he ought not to recover, either a nonsuit should be entered or a verdict directed on motion, whichever practice prevails in the particular jurisdiction. In this state, nonsuit is the technically correct method. (McKay v. Montana Union Ry. Co., 13 Mont. 15, 21 Pac. 999.) In actions for personal injuries the absence of contributory negligence is not required to be pleaded or proved by the plaintiff, but its presence is a matter of defense. Such is the law in Montana. (Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Mulville v. Pac. Mutual Life Ins. Co., 19 Mont. 95, 47 Pac. 650; Snook v. City of Anaconda, 26 Mont. 128, 66 Pac. Rep. 756.) The contrary rule Avas announced in Ryan v. Gilmer, 2 Montana Reports, 517, 25 American Reports, 744, but has been overturned by the oases cited and those referred to by the opinions therein. If, hoAvever, the complaint sIioavs the proximate (or a proximate) cause of the injury to have been the act of the plaintiff, the complaint must also state his freedom from negligence in the doing of the act; othenvise the pleading is bad. (Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21) ; and so, if the evidence in behalf of the plaintiff shows the injury to have been directly caused (cither in whole or in part) by his act, the burden is 'immediately upon him to prove that he was exercising ordinary care at the time. (Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905.) Another rule, from which there seems to be no dissent except in North Carolina (Bolden, v. Railway Co., 123 N. C. 614, 31 S. E. 851; Cogdell v. Railroad Co., 124 N. C. 302, 32 S. E. 706; Powell v. Railway Co., 125 N. C. 370, 34 S. E. 530), is that if the evidence in plaintiff’s behalf establishes, beyond question, that his own omission to use ordinary care contributed immediately to, or itself caused, the injury, the court should on motion direct a verdict or grant a nonsuit.

The motion for a nonsuit in the case at bar was similar to the common law demurrer to the evidence, in that it performed the office of admitting’ as facts what the evidence tended to prove, thereby presenting the question whether the facts so conceded, when viewed in the light most favorable to the plaintiff, were, as matter of law, sufficient to justify a verdict for him. So considering the evidence, the facts may be stated thus: On Saturday, September 28, 189.5, the plaintiff, aged 33 years, a practical miner of sixteen years’ experience, familiar with the risk and dangers incident, to the hazardous occupation, was severely injured by a fall of rock in the Alta mine, operated by the defendant, a corporation. He had been so in the employ of the defendant, and working for it as an underground miner in Ihe .Vita mine since 1892. Eor many years he had operated a machino drill used for boring holes in tunnels and raises so that blasting might be done. When hurt lie was engaged in constructing a three-compartment, inclined raise on the vein, following the foot wall, from the 1200-foot level to an intermediate tunnel eighty feet distant. The raise departed from flie perpendicular at an angle of about 45 degrees — the dip of the vein. Each compartment was a separate chute; the-middle one was the man-way, the others, one on each side of tlie man-way, were used for ore. Four sets of timbers were needed to make the three compartments., These consisted of four equi-distant stringers, or uprights, next to the hanging wall; four stulls or cross-pieces eight to ten feet in length (according to- the pitch of the walls) attached to, and supporting the top of, the stringers, and reaching from wall to wall; three “girds,” or girders, laid on top of the stringers and parallel with the strike or course of the vein, and running from stull to stull. The stulls supported the stringers, and the girders served to keep- both in place. Each three-compartment section of the rise was about six and one-half feet in height by thirteen in length, each room or compartment being about four feet and four inches in length along the lode on its strike or course, which is east and west. When the ground did not blast so as to permit the stulls.and stringers to fit snugly against the country rack, the stringers were lagged crosswise with round poles four feet and four inches in length, and then the space between the lagging and the hanging wall was filled in with waste so as to keep the timbers secure.' To make a floor, lagging of the same sort was laid on top of the timbers from stull to stull, and across the openings leading up to the face of the raise. The machine was set upon the floor and the holes drilled overhead in the face. Each set of four timbers carried the raise six and one-half feet further towards the tunnel. A floor was not left on each set of timbers, hut whenever advance of a set higher (six and one-luilf feet) had been made, the lagging of the lower floor of the last set would be moved up and the top flooring of that, set left, so that there were always two floors lagged in whole or in part. The top or upper floor was always left open ■ — that is, without lagging — on the side not- blasted, in order that the miners might gain ingress to- it from the floor below and see the face of the ground. After drilling and before blasting, the space between the timbers immediately under the ground to he blasted was always lagged. This was done as a measure of protection to miners going to the; lower floor; with the upper floor (or top of the timbers) tightly lagged under tlie ground blasted or about to- be blasted, a man. could, with a reasonable degree of safety, reach the lower floor, cross to the side or end over which blasting had not been done, or was not about to be done, and then go to the upper floor through the opening left under the solid ground. The plaintiff testified: “As we went up we would set the machine for tire purpose of drilling on one c f these floors, the bar set on one of those floors that would be lagged up. We put lagging on top of the timber, too, and that made a floor, and from that floor we bored above us-. As we proceeded with the work, we did not leave these floors on each set of timbers; when we would get up a set higher we would pull up the under floor and move it on up again; wo kept two floors all the time. We would pull the one below up; when we put a set of timbers above, we would pull the lower floor up and move up. We ascended the upraise to get where we were working through a ladder constructed in this manner. As the work was carried up we always left the top floor open on the side that was not blasted out, so that a man could get through there and see the face of the ground that was left and also see the ground where it was blasted.” If, for example, the ground in the eastern part of the face of the raise was about to be, or had been blasted, the opening would be left on the -western side or end under the secure ground. “In the place where it had not been blasted, it [the floor] would bo left open, so that when I came up in the morning, by looking up I could see the face of the ground where the blasting had been done. We put lagging on the floor immediately under the place where we were going to blast, because that is where the man would come up on the first floor; if that floor was left ojoen and a man would go up there, there would be nothing to protect him over his head, but with that floor lagged up a man would go up and cross over to the side that was not blasted, and then he would go up there.”

Nor thirteen days before, and on the day of, the accident, the plaintiff was working on the day shift. One Running, his fellow servant, was working on the night shift, and 'had been operating tlie drilling machine for a month. Running would quit work at ten minutes after five o’clock in the morning, and plaintiff would begin at ton minutes before seven — about one and one-half hours thereafter. Running had had but little experience with the machine. lie sometimes bored holes which inclined away from, instead of toward, the center of the raise, and which, when fired, -failed to blast down the ground; the effect of this was to shake the ground and make it unsafe. In order to drill the holes properly, so that the ground when blasted, would come down easily, it was necessary to* set the machine on one side of the raise and bore the holes toward the center over the man-way, and then remove the machine to the opposite side and bore the other holes toward the center. Holes drilled in this way “would have a cut so* they could break their burden.” The effect of drilling the holes was to shake or loosen the ground more or less, according to its character. Ground shaken or loosened by ineffective blasts, or by boring without blasting, should be lagged or spragged to prevent its falling upon those afterwards working under it. About a week before the accident the day-shift-boss, noticing that Running had omitted to fire four out of six holes made by him, remarked to the foreman, who was authorized to hire and discharge the men, that such work would never do and “a man must be crazy to drill holes like that;” to which the foreman answered that it was the worst work he had ever seen, and asked the plaintiff for an expression of his opinion. The plaintiff told the foreman it was hard to keep the ground safe when holes were drilled in that way, for a bowlder might drop out at any time. The foreman then said he would look after Running’s work carefully and inspect it, and told the plaintiff to* keep at work and do the best he could, and perhaps Running’s' work would improve after a while. On Thursday, two days before the accident, Running drilled and fired six holes, which did not break, and the foreman told the plaintiff that Running was doing worse instead of better and that he would put a man in his place who understood that sort of work. Plaintiff, though lie did not announce bis intention to do so, would have quitted tlie employ of tlie defendant on tliat day but for tlie alleged promise to discharge Running.

On Friday, the day before the accident, tlie plaintiff put in four sets of timbers, and lagged the stringers for about two and one-half .feet above the floor. When be stopped work on that afternoon, tlie face of tlie ground over the west compartment, or chute, was about five feet above the top of the timbers and, hence, about eleven and one-half feet above the floor; over the east compartment' or chute, .the ground hung lower, being three feet above the top of the timbers, and hence about nine and one-half feet above the floor, projected three or four feet over the chute, and reached from the hanging to the foot wall. This ledge he sounded with a hammer before going off shift on Friday afternoon; finding it solid, he did not brace it. The space across the top of the sets of timbers was left open. Before going away on Friday afternoon, that plaintiff at 5 :30 o’clock, fired and blasted four holes which had been, drilled by Running the night before, in the center of the raise over the man-way; two were in the hanging- and two in the foot-wall; each was seven or eight feet deep and was started about one foot above the ledge projecting over the east chute. The further ends of the holes were about eight feet from the ledge. Each hole was ene and. one-liálf inches in diameter and contained powder to' a depth of from eighteen inches to two feet, lie did not go back to see what effect the blast had, or where the dirt and rocks fell; it was not his duty to do so. After he had blasted, the first man in the ordinary course of business to go into the raise made by the plaintiff, was Running, whose duties were to lag up the stringers, fill with waste the space between the stringers and the hanging-wall, drill two rounds of holes, lag the top of the timbers for a floor under the ground to be blasted, leaving the top open elsewhere,- and to charge, fire and blast at ten minutes after five o’clock in the morning of Saturday. It was not his duty to observe the effect of the blast. Tlie next man to g01 into tlie raise after Running left, was the plaintiif.

At ten minutes before seven o’clock on the morning of Saturday, the 28th, the plaintiff, according to custom and in the performance of his duty as a servant of the defendant, went into the raise to continue the work. He had not inquired whether Running* was still in defendant’s employ, and did not know whether or not Running* had worked there during* the night. Iiis first duty was to examine the ground for the purpose of ascertaining its condition and to remove that which was found to be broken down or loose. Reaching the first, or lower, floor at the west end of the section of the raise constructed by him on Friday, he caw that the timbers put in by him had been lagged entirely across the top sets, thereby making a floor which hid the face of the raise. The usual way of access was barred by this floor. Between the' stringers (which he had partly lagged on Friday) and the hanging-wall there w*as a space three feet wide for waste. To reach the top floor he climbed up through this space and then over the girders. Thus he brought himself upon the top floor and next to the face of the raise. If the ground over the east chute had not been drilled or blasted, tlie floor should have been there left open; if drilled or blasted, it should have been closed by lagging*. It was so closed; “it was lagged clear across the four sets, it was lagged right up tight.” When lie reached the top floor he saw that blasting had been done. He saw a large opening in the ground at the west end of the face of the raise. He knew that, thirteen hours before, he himself had blasted four holes over the center of the raise; this, he says, had no effect upon, the projecting* ledge on the east chute. He knew also that the man who had just gone off shift had drilled, and probably blasted, two rounds of holes. He found that die charges fired by him had knocked down part of the ground, and that the work had been continued from where the plaintiff had blasted almost to the intermediate tunnel, — a distance of two sets or thirteen feet from the top floor. *‘Running had lagged up .that floor, and most of the ground that lie blasted was on top of this floor; he had the floor lagged right up tight to the girds, and the dirt was on top of the lagging, that is, the ore.” lie did not observe any holes that were not blasted. The first thing he did after getting on top of the floor was to pick down the loose ground -blasted by Running, and break into the tunnel, which required half an hour’s work. He then “sounded all around the walls of this space of ground that was blasted out that night,” and fond it safe. To the face of the projecting ledge of rock, or bench of .ground, he gave a “side glance,” and the ledge seemed to him to be in exactly the same condition it was on the preceding afternoon when he left after blasting four holes, except that under it there was. dirt on the lagging. He could not without stooping, or removing some lagging, see its “lower face,” which (as has been stated) was about three feet above the lagging, overhanging the east chute three or four feet, and reaching clear across the vein from wall to wall. He could have examined the ground; there was nothing to prevent him from doing so. Though he made examination of the “sides of it up- where” he picked down the loose rock, which was to the west, it is manifest from his own testimony that he neither sounded nor otherwise examined or inspected the projecting ground or ledge itself on Saturday. In picking into the tunnel some waste came down. The plaintiff had orders from the day shift-boss not to permit any waste to* go into the chutes, which contained ore. He told his helper, who was standing on the floor below, to pull up two pieces of lagging from that floor and put it behind the stringers, as the plaintiff intended to throw waste down. The helper did as he was directed. The plaintiff then took a stone from the pile of dirt, carried it to the east chute, and dropped it down between, the hanging wall and the lagged stringers. "When he dropped the stone he was standing by the ledge. The stone knocked the topi lagging out of place. Stooping, the plaintiff got down on his knee to replace the lagging; in doing so he put his body immediately under the ledge, and reached down behind the stringer. As he arose, part of the ledge fell upon him, causing tiie injuries of wliicli be complains. ■ Had tbe ledge been supported, or spragged, be would bave known tbe ground was loose or unsafe; not being spragged or braced, be thought it was just as be bad left it on Friday. After tbe accident two or three pieces of lagging on tbe top floor under tbe ledge were removed, and five or six boles were to> be seen in. tbe ledge. These bad been properly bored. The plaintiff knew nothing of them. Tbe ledge was afterwards brought down by blasting two of tbe boles.

Tbe plaintiff contends that tbe inferences deducible from these assumed facts, which we bave stated at considerable length in order that tbe conditions may be understood, were for the jury to draw, and that they were sufficient to justify a verdict for tbe plaintiff.

A servant tacitly agrees, by virtue of tbe contract of employment, to encounter and assume tbe ordinary risks incident to tbe service, one of which is tbe negligence of bis fellow-servants. In tbe case at bar tbe plaintiff and Running were fellow-servants in the employ of tbe defendant. But it is contended that because the plaintiff relied upon tbe defendant’s unkept promise io discharge Running for negligence and unfitness, tbe defendant assumed tbe risk and hazard of Running’s negligence which might thereafter cause-injury to tbe plaintiff, and became answerable for such negligence to tbe same extent as it would be bad tbe negligence been its own. For present purposes this may be granted, and it may be granted also that Running was negligent-, and that without bis negligence in boring six boles and leaving tbe ledge unsupported, tbe plaintiff Avould not bave been hurt. Assuming all this to be true, we are nevertheless of tbe opinion that tbe defense of contributory negligence was conclusively made out by tbe evidence of tbe plaintiff. He, an underground miner of many years’ experience, following a vocation dangerous to life and limb, and familiar with its risks, was engaged in making a place — a place which be was creating and changing as tbe work progressed. On Friday afternoon be blasted four boles in tbe center of tbe Raise oyer tlie man-way or middle chute; these boles were begun about a foot from the ledge of rock overhanging the east chute, which he sounded and found secure. He then went off shift, leaving the top of the timbers open under the east chute. Now, eliminate Running from the case, and consider the defendant (the master) as a natural person, in Running’s stead. The defendant immediately took up the work, drilling and blasting. In the ledge he bored six holes, when two- would have answered; this, we assume, was negligence. He failed to blast them or to sprag or support the ledge after the drilling; this, Ave assume, was also negligence. Next- morning, after the defendant had been at Avork all night, the plaintiff returned to resume his Avork in the same place. Standing on, the lower floor and looking up to see what ground had been blasted, he found the face of the raise, including the ledge over the east chute, entirely hidden from vierv by lagging across the top of the timbers and the usual Avay of access barred. He knew the invariable custom Avas to lag under the ground blasted, and to leaA’e the timbers ojien on the side not blasted or about to be blasted. He kneAV that drilling preceded blasting, and knoAV, or Avas bound to knoAV, either that the ledge over the east chute had been blasted or Avas in condition to be blasted. The lagging was equivalent to express notice by the defendant to the plaintiff that the ledge Avas insecure, — it served the purpose of a sign stretched across the ledge, declaring that in the progress of mining the ground had been shaken or rendered loose. It Avas unmistakable notice and Avaming to the plaintiff of the risk and danger, — res ipsa loquebatur. He found there Avas no Avay to reach the upper floor except through a space three feet wide between the stringers and the hanging-wall. This unusual mode of access and ingress he used, climbed over the girders and so got on, the top of the floor. He knew that blasting had been clone on the afternoon before; he knew that Avithin two hours there had been further drilling and blasting, and he was the first man to go into the place thereafter. His first duty was to pick doA\m the loose rock and inspect carefully the-ground to ascertain whether it was secure. He picked down all the rock that seemed to be loose and made some soundings of the walls. The ledge he did not sound, examine or inspect, though he could easily have done so. This he omitted because it looked solid and in the same condition it was on the afternoon of Friday. He gave it a glance, and as it wras spragged and supported, he thought it secure. It reached from wall to wall, overhanging the east chute three or four feet and stood three feet above it. Under it on the lagging he saw dirt. He got under it by stooping and kneeling; as he was in the act of rising, part of the ledge foil upon his body. Now, the plaintiff was bound, at his peril, to use ordinary care, — that is, such care and caution as men of common prudence, possessing his knowledge and experience, ' in the particular vocation, would or should have exercised if placed in the position of the plaintiff at the time of the accident. Extraordinary care was not required of him; but the slightest want of ordinary care on his part was negligence which, if it contributed directly to the injury, defeats the action. The plaintiff cannot recover if he could have avoided the injury by exercising ordinary care and caution. That he may not have understood the danger, or may have temporarily forgotten the risk, is of no moment; he was charged with knowledge and understanding of such dangers and risks as he might have comprehended and appreciated by using ordinary care; if he forgot, he was negligent,’ for he was bound to remember. The defendant was not required to take better care of the plaintiff than the plaintiff was of himself; the measure of the duty of t ach was ordinary care. The negligence of the defendant did not dispense with the necessity of the plaintiff’s using ordinary care. Such has been the unbroken rule since Butterfield v. Forrester, 11 East, 60, was decided, to the present day. By his own careless act in getting under the ledge without inspecting or sounding it, he voluntarily exposed himself to the risk of injury. The accident would not have happened had the plaintiff exercised due care and caution. His failure in that respect was an immediate cause of tbe injury. Could a jury rightly declare that an average man of common, prudence, similarly situated, would have acted as the plaintiff did? Did not the evidence so manifestly disclose the plaintiff’s negligence that a verdict for him would necessarily have to be vacated on motion for a new trial? In proving the circumstances of tli© accident and injury, lie succeeded in establishing for liis adversary the defense of contributory, or concurrent negligence. The evidence left no substantial doubt upon the subject; the average reasonable man, not biased by sympathy with the plaintiff nor prejudiced by interest could come, upon deliberation, to but one conclusion. A nonsuit was therefore properly granted. We are aware of the rule that the question, whether this defense lias been made out is usually for the jury to decide. The case at bar is clearly one of the exceptions.

All the specifications of error are disposed of by the foregoing considerations. Let the judgment be affirmed.

Affirmed.