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As the only serious objections by the plain-i The judgment of the court is right, and tiff are to admission of defendants' evidence should be affirmed. and to the court's instructions, and as these are based upon the alleged absence of a suf- TELLER, Acting C. J. and WHITFORD, ficient plea of self-defense, we need only to J. (sitting for BURKE, J.) concur. consider that plea, for if it is good, as we think it is, there is no error in the record. The plea is in the following words:

"Admits that some altercation took place between the plaintiff and the defendant August

ARIZONA POWER CO. v. HAYES. Yantorno at or about the time and place men

(No. 1969.) tioned in the complaint, but allege that the acts

cts (Supreme Court of Arizona. Sept. 30, 1922.) and conduct on the part of the defendants were fully justified by the circumstances attending 1. New trial on 138Service of motion all the the same; that at or about said time and notice that is required. place the defendant August Yantorno was

Under Civ. Code 1913, par. 598, service of

Under civ Code 1012 noe set upon and beaten, battered, and struck and copy of motion for new trial is all that is reassaulted by the plaintiff, and his life threat- ! quired, and it is not necessary to serve a noened by the plaintiff, and that the plaintiff

tice of the motion. called to her assistance in her wrongful and unlawful assaults, and in an attempt to carry 2. Appeal and error 870(6)-Appeal from out the intention on the part of the plaintiff to order denying now trial not necessary for beat and strike and batter the defendant, her review of denial and sufficiency of evidence. husband and several of her children and other Under Civ. Code 1913, par. 1231, no spe. members of the family, and that the defend-cific appeal from order denying new trial is ants, and each of them, in their conduct, were necessary, in order that the denial of the moacting solely and purely in self-defense." tion for new trial may be reviewed on appeal

from the final judgment, or that the sufficiency [1] One objection to this defense is that of the evidence to sustain the verdict or judg. there is no admission by the defendants of

ment in an action tried before a jury may be

considered. the assault and battery set up in the complaint. If the code rule that pertains in or- 3. Trial 420—Motion for directed verdict dinary civil actions applies to actions of as- waived by introducing evidence. sault and battery, it would seem that by a

Defendant's motion for a directed verdict failure in this defense to deny the assault at the close of plaintiff's case was waived by inand battery the same is admitted. We think troducing evidence in defense. the code rule applies.

4. Master and servant am 265(14)-Burden of [2] Another objection is that the conclud- issue of contributory negligence on plaintiff. ing allegation "that the defendants were act In an action under the Employers' Liability ing solely and purely in self-defense" is a Act for death, the burden of proof is op plainmere conclusion of law. It may be that a tiff to affirmatively prove that the injuries remotion or special demurrer might, on some sulting in the death were not caused by deone or more of the code grounds, be tenable,

ceased's own negligence. but no objection was made to this defense 5. Negligence en 136(8)-Question for court until the defendants, at the trial, produced on undisputed evidence. evidence to sustain it. No attempt having Where the facts are undisputed, and the been made by motion or demurrer to ques- inferences which may be drawn from them not tion in any way its sufficiency, it is our duty equivocal, and can lead to but one conclusion, to sustain the rulings of the trial court in its

p the trial court in its the court will adjudge as a matter of law instructions and rulings upon the evidence,

whether there is or is not negligence. if the plea itself is good.

6. Trial 178_On motion for directed ver[3] In vol. 3, Sutherland, Code Pleading of dict, only facts tending to support plaintiff's Practice and Forms, p. 2332, form 3829, the case considered following is given as a sufficient plea in self- A motion for a directed verdict must be defense to an action for assault and battery: decided on the admitted facts, those brought

out by plaintiff's competent evidence, and ad“That the plaintiff first assaulted the defend- mitted by the motion, and such facts, brought ant, who thereupon necessarily committed the

out by defendant's competent evidence, as tend acts complained of, in self-defense.”

to support plaintiff's case or corroborate plain

tiff's evidence, and facts presented by defendThe justification set up in this defense is, ant's evidence not tending to support plainat least, as good as the plea commended by tiff's case or corroborate his evidence cannot Sutherland. We hold that it is not subject be considered. to a general demurrer for insufficiency. 5 C. 7. Master and servant 243(1)-Electric J. p. 657, par. 85; Mellen v. Thompson et al. lineman, violating rules, hold negligent. 32 Vt. 407; 5 C. J. p. 656 et seq.; Smith v. Where an experienced electric lineman unWickard, 42 Ind. App. 508, 85 N. E. 1030. dertook to transfer wires to a new pole in the

Com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

8.

M

(209 P.) midst of a network of wires, some carrying a , appeal has been taken from the denial of deadly current, without grounding them, as re- the motion for a new trial. The first objecquired by a rule of the employer adopted pur- tion is not well founded. The service of a suant to Civ. Code 1913, par. 3157, he was copy of the motion for new trial is all that guilty of negligence, preventing recovery for his

is required under paragraph 596, Rev. Stat. death, in the absence of any showing of an ex.

1913. As to the second objection, under the traordinary situation, requiring the sudden exercise of judgment or discretion.

provisions of paragraph 1231, Rev. Stat.

1913, no specific appeal from the order dester and servant On243(4)-Electrio nying the motion for new trial is necessary lineman's violation of rules not excused.

| upon appeal from a final judgment, in orTestimony that an electric lineman, in der dit

aan, in der either that the action of the court beworking on or near wires charged with a dead

low in denying the motion for new trial may ly current without grounding them, as required by the employer's rule, was doing the work in

be reviewed, or that this court may consider the usual manner, did not excuse the violation

the sufficiency of the evidence to sustain of the rule, or prove acquiescence therein by

| the verdict or judgment in an action tried the employer.

before a jury. All that is necessary is that

a motion for a new trial be made and de Appeal from Superior Court, Yavapai nied. County; J. J. Sweeney, Judge.

[3] As to appellant's first assignment of

error, its motion for a directed verdict at Action by C. Benjamin Hayes, adminis- the close of plaintiff's case was waived by trator of Ralph W. Griffith, deceased,

introducing evidence in defense. Southwest against the Arizona Power Company. From

Cotton Co. v. Ryan, 22 Ariz. 520, 199 Pac. a judgment for plaintiff, defendant appeals.

127. Reversed and remanded, with directions.

[4] Upon appellant's remaining assignG. P. Bullard, of Phønix, for appellant.

ment of error, all other material allegations Favour & Cornick and Arthur G. Baker,

having been sufficiently established, it reall of Prescott, for appellee.

mains but to determine whether or not the | undisputed facts as presented by all the evi

dence are sufficient to affirmatively prove JENCKES, Superior Judge, Plaintiff by

that the injuries resulting in Griffith's death this action seeks to recover from the de

were not caused by his own negligence. The fendant (appellant here) damages for the

burden of proof in that respect is upon the death of his intestate, Ralph G, Griffith.

plaintiff. Southwest Cotton Co. v. Ryan, Recovery is sought under the Employers'

supra; Calumet & Arizona Mining Co. v. Liability Act. Chapter 6, title 14, Rev. Stat.

Chambers, 20 Ariz. 54, 176 Pac. 839. 1913. The occupation was a hazardous one

[5] This court has adopted the rule, in within the statute, and the injury resulting

cases arising under the Employers' Liabile in Griffith's death was caused by an acci

ity Act, that: dent which occurred while he was engaged in such occupation. But appellant contends

"Where the facts are undisputed, and the inthat the evidence shows, as a matter of law,

ferences which may be drawn from tbem are that the deceased was injured by reason of

not equivocal and can lead to but one conclu

sion, the court will adjudge, as a matter of law, his own negligence.

that there is or is not negligence.” Calumet A motion for a directed verdict for de- & Arizona Mining Co. v. Gardner, 21 Ariz. 206, fendant at the close of plaintiff's case was 187 Pac. 563. denied. A similar motion at the conclusion of all the evidence was also denied. The (6] The undisputed facts, for the purpose jury returned a verdict for plaintiff in the of the consideration of the motion made at sum of $2,000 upon which judgment was en-the conclusion of all the evidence in the tered. Appellant seasonably filed its motion case, are, in addition to any other admitted for a new trial and served a copy thereof facts, those brought out by all competent upon appellee. This motion, not having been evidence introduced by the plaintiff; the passed upon or continued for hearing with truth thereof being admitted by the motion, in 20 days from rendition of judgment, was and as well all facts brought out by comdenied by operation of law. Rev. Stat. 1913, petent evidence of the defendant tending to par. 591. Thereafter appellant duly per- support plaintiff's case, or in corroboration fected its appeal. The appeal is from the of plaintiff's evidence, if any such there be. judgment; appellant assigning as error the No purported facts presented by defendrefusal of the trial court to direct a verdict ant's evidence, which do not tend to supin its favor at the close of plaintiff's case, port plaintiff's case, or corroborate his eviand again at the close of all the evidence. dence, can be considered.

[1, 2] Appellee objects to a reviewal of' [7] With this in mind, the following are the evidence upon this appeal, first, because the undisputed facts of the case: no notice of the motion for a new trial was The defendant power company owned and served upon him; and, second, because no operated a certain electric substation, and

For other casus see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

three high voltage power lines connected, had posted certain rules inforn:ing its emtherewith and radiating therefrom, carry- ployés as to the duties and restrictions of ing respectively 11,000, 45,000, and 15,000 their employment pursuant to the provisions volts of electricity at the time of the acci- of paragraph 3157, R. S. 1913; that dedent. A set of six telephone wires and an-cedent had ample opportunity to familiarize other set of three wires, normally carrying himself therewith; that he did not govern 220 volts of electricity, for the operation of himself by such rules in the performance a wood saw, but which at the time of the of the work in question; that the accident accident was cut off from its source of pow could not have happened, if he had grounder in the substation, also owned and oper ed the wires in the manner prescribed by ated by defendant, were strung upon a cer- such rules; that all tools requisite and nectain wooden pole 75 or 100 feet from the essary for the grounding of the wires, pur substation and a warehouse adjacent there- suant to the rules, were immediately availto. The telephone wires extended from the able to him. warehouse and the "wood-saw circuit” from That the rule requiring the grounding of the substation, the two lines converging at wires was a reasonable and practicable the aforesaid wooden pole. There they means of protection is evident from plainseparated; the "wood-saw circuit” passing tiff's witness Heffelman, who testified: under the three high-voltage power lines, “That was a rule for personal safety-anybeing below the 15,000-volt line a distance body should do that.” That the decedent of about 3 feet.

elected to substitute his own judgment as Griffith, at the time of the accident which to how the work should be done instead of resulted in his death, was employed by the complying with the rule is also apparent defendant company as a lineman foreman, from Heffelman's testimony, to the effect with two other linemen by name Heffelman that "the grounding of the wires was not and Hill working subordinate to him. He considered necessary, because it was a dead was an experienced lineman and electrical circuit.” The rule itself required that worker, and had been employed by the de- foreman and patrolmen must properly fendant company in such capacity for up ground lines upon which work is to be done wards of two years prior to his death. On before doing any work on or near lines northe day of the accident he had been in- mally carrying current" (italics ours), and structed to replace the aforesaid pole, which then prescribed the method of making the had become wobbly and unstable, with a ground, and directed where to procure the new one, and to transfer thereto from the necessary implements, which in this parold pole the telephone wires and the "wood-ticular instance were in the substation close saw" wires. He began the work on the by. That the rule was applicable to the morning of February 22, 1918, and by about work being performed by decedent there is 3 o'clock in the afternoon the new pole had no possible room for doubt, after examinabeen “set” and the telephone wires trans- tion of Plaintiff's Exhibit A, a map illusferred to it. The "wood-saw" wires re-trative of the situation. Decedent was mained attached to the old pole.

working in the midst of a veritable netAccording to the testimony of plaintiff's work of wires, three lines of which were witness Heffelman, Griffith was up on the each charged with a current of deadly voltnew pole, standing on his "climbers,” his age. He was working both "on and near safety belt in place, his head "in the tele lines normallly carrying current." phone wires, touching them.” He was "put. Accordingly we hare here a clear-cut case ting on a guy wire about the pole," for the of an employé engaged in an occupation in purpose of “keeping the lines from pulling the highest degree hazardous; his employover the pole." "It is supposed to be at er, pursuant to law, prescribing reasonable tached somewhere below the crossarm and rules, which, if followed, would afford comgoes to the ground, anchored." While in plete protection to the employé; the emthis position, by some means not appear-ployé deliberately ignoring such rules, and ing from the evidence, the fact, however, as a consequence thereof meeting death. being stated by the witness Heffelman, the The violation by an employé of a rule "wood-saw" circuit came in contact with the adopted by his employer for his protection, 15,000-volt circuit at the point where the unless justified, is negligence on the part of former passed under the latter. Instantly the employé. 18 R. O. L. 660. Whether or there was a "large flash about his (Grif- not in this case the decedent was justified fith's] head" at the point where his head in thus ignoring the rule no attempt is was touching the telephone wires, and he made to show. became rigid and unconscious. The power [8] It is not even suggested that an exwas turned off the 15,000-volt line at the traordinary situation existed requiring the substation, and Griffith was removed from sudden exercise of judgment or discretion the pole, He died 13 hours thereafter as on the part of decedent. And plaintiff did the result of the injuries received from the not attempt to prove that the decedent's electrical shock thus sustained.

manner of doing the work was a safe and Further, it is undisputed that defendant, approved method, or that it had been ao

(209 P.) quiesced in by the defendant. The most | lode which apexes within the boundaries of a that can be said in that respect is that the mining claim, and as such must be continuous, witness Heffelman testified that decedent in the sense that it can be traced through the was performing the work in the usual man- / surrounding rocks. ner. This but proves the truth of the adage that the pitcher which goes too often to the

4. Appeal and error Om846(5)- In absence of

request for court to find facts, judgment af. well will be broken at last, and neither ex

firmed, if supported by evidence. cuses the violation nor proves acquiesence therein by the defendant.

Where no request was made by either par

ty, in a case tried to the court, to find the Thus the undisputed facts and the legiti

| facts in accordance with Civ. Code 1913, par. mate inferences therefrom clearly and un-528, the judgment must be affirmed, if supportequivocably lead to the conclusion that the led by the evidence. death of plaintiff's intestate was caused by his own negligence. The trial court erred 5. Mines and minorals en 44 - One claiming in denying defendant's motion for a direct rights anterior to entry of mining claim for ed verdict at the conclusion of all the evi. patent not concluded by patent, but entitled dence.

to show his prior discovery. The judgment is reversed, and the cause One who claims rights anterior to the enremanded, with directions to the trial court try of a mining claim for patent, and dependto enter judgment for the defendant.

ent on the order of the facts making up the

right to the land, is not concluded by the patROSS, C. J., and FLANIGAN, J., concur.

ent, but may show such order, including the

fact of his own prior discovery of mineral. NOTE.—MCALISTER, J., being disquali. 6. Mines and minerals 38(18) - Evidence fied, took no part in the decision of this held to support judgment of bisected apex of case.

side line vein.

In an action between owners of adjoining mining claims to quiet title and establish extralateral rights to a vein apexing in plaintiff's

claim, evidence held to support a judgment TOM REED GOLD MINES CO. v. UNITED

D awarding defendant such portions of the side EASTERN MINING CO. (No. 1963.)

line vein as are bisected by the common side

line of the claims, with extralateral rights. (Supreme Court of Arizona, Sept. 14, 1922.)

7. Mines and minerals a 38(28)-Plaintiff, in 1. Mines and minerals 31(1)-Right of own suit to quiet title to vein of mineral, held

er of mining claim to go outside surface entitled to costs, where judgment was partly boundaries stated.

in his favor. ler Rev. St. U. S. § 2322 (U. S. Comp. Where defendant, in action to quiet title to St. § 4618), relating to rights of locators of la vein of mineral, claimed title adverse to plainmining locations, the owner of any mining tiff, and the judgment was only partially in his claim has the exclusive right of possession and favor, plaintiff was entitled to costs, under Civ. enjoyment, not only of the surface included Code 1913. par. 1625. within the lines of the location, but the exclusive right of possession and enjoyment of all veins, lodes, and ledges throughout their en

Appeal from Superior Court, Mohave tire depth, the tops or apexes of which lie in-County; E. Elmo Bollinger, Judge. side of such surface lines extended downward vertically, though such veins, lodes, or ledges Action by the Tom Reed Gold Mines Commay so far depart from a perpendicular in pany against the United Eastern Mining their course downward as to extend outside the Company. From a judgment granting only vertical side line planes of such locations within

partial relief, plaintiff appeals. Modified the ground beneath the surface lying between

and affirmed. the vertical end line planes extended in tbe direction of the dip of such veins.

Wm. E. Colby, of San Francisco, Cal., and 2. Mines and minerals 31(1)-Vein must be Louis L. Wallace, of Kingman, for appelpursued on its course downward.

No extralateral right exists to a vein, lode, John P. Gray, of cour d'Alene, Idaho, R. or ledge beyond the point where, in its course L. Alderman, of Los Angeles, Cal., and C. W. outside the claim of apex, it becomes flattened

Herndon, of Kingman, for appellee. and extends from thence horizontally in a departure from the approximate general plane of the vein in its downward course, or for any FLANIGAN, J. This action was brought considerable distance takes an upward trend. by the appellant, Tom Reed Gold Mines Com3. Mines and minerals 31(3)_Vein to which pany, against the appellee, United Eastern

extralateral right attaches must be identical | Mining Company, to quiet title and-establish with vein lying within boundaries of claim. extralateral rights to what appellant denomi.

A vein to which the extralateral right at- | nates the underground segment of a vein tacher must be an integral part of a vein or I known as the Grey Eagle or Tom Reed vein,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

lant.

apexing in its Grey Eagle and Bald Eagle, claim is the property of appellee. The dia.. lode mining claims. The accompanying dia- grams from plaintiff's exhibits (sections 21 gram (Plaintiff's Exhibit 20) shows the Grey and 29) are of vertical cross-sections of the Eagle vein, which traverses the Grey Eagle | Grey Eagle and Big Jim clairas, and show claim lengthwise, passing on its strike with sufficient accuracy for the purposes of through the southerly end line of that claim this opinion the location of the Grey Eagle into the Bald Eagle claim through its north-vein with relation to the deposits to which erly end line. The Big Jim lode mining the extralateral right is claimed.

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