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As the only serious objections by the plaintiff are to admission of defendants' evidence and to the court's instructions, and as these are based upon the alleged absence of a sufficient plea of self-defense, we need only to 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 Yantorno at or about the time and place mentioned in the complaint, but allege that the acts and conduct on the part of the defendants were fully justified by the circumstances attending the same; that at or about said time and place the defendant August Yantorno was set upon and beaten, battered, and struck and assaulted by the plaintiff, and his life threatened by the plaintiff, and that the plaintiff called to her assistance in her wrongful and unlawful assaults, and in an attempt to carry out the intention on the part of the plaintiff to beat and strike and batter the defendant, her husband and several of her children and other members of the family, and that the defendants, and each of them, in their conduct, were acting solely and purely in self-defense."

[1] One objection to this defense is that there is no admission by the defendants of the assault and battery set up in the complaint. If the code rule that pertains in ordinary civil actions applies to actions of assault and battery, it would seem that by a failure in this defense to deny the assault and battery the same is admitted. We think the code rule applies.

[2] Another objection is that the concluding allegation "that the defendants were acting solely and purely in self-defense" is a mere conclusion of law. It may be that a motion or special demurrer might, on some one or more of the code grounds, be tenable, but no objection was made to this defense until the defendants, at the trial, produced evidence to sustain it. No attempt having been made by motion or demurrer to question in any way its sufficiency, it is our duty to sustain the rulings of the trial court in its instructions and rulings upon the evidence, if the plea itself is good.

[3] In vol. 3, Sutherland, Code Pleading of Practice and Forms, p. 2332, form 3829, the following is given as a sufficient plea in selfdefense to an action for assault and battery:

"That the plaintiff first assaulted the defendant, who thereupon necessarily committed the acts complained of, in self-defense."

The justification set up in this defense is, at least, as good as the plea commended by Sutherland. We hold that it is not subject to a general demurrer for insufficiency. 5 C. J. p. 657, par. 85; Mellen v. Thompson et al. 32 Vt. 407; 5 C. J. p. 656 et seq.; Smith v. Wickard, 42 Ind. App. 508, 85 N. E. 1030.

The judgment of the court is right, and should be affirmed.

TELLER, Acting C. J. and WHITFORD, J. (sitting for BURKE, J.) concur.

ARIZONA POWER CO. v. HAYES.
(No. 1969.)

(Supreme Court of Arizona. Sept. 30, 1922.)
1. New trial 138-Service of motion all the
notice that is required.

Under Civ. Code 1913, par. 596, service of copy of motion for new trial is all that is required, and it is not necessary to serve a notice of the motion.

2. Appeal and error 870 (6)-Appeal from order denying new trial not necessary for review of denial and sufficiency of evidence.

Under Civ. Code 1913, par. 1231, no specific appeal from order denying new trial is necessary, in order that the denial of the motion for new trial may be reviewed on appeal from the final judgment, or that the sufficiency of the evidence to sustain the verdict or judgment in an action tried before a jury may be

considered.

3. Trial 420-Motion for directed verdict waived by introducing evidence.

Defendant's motion for a directed verdict at the close of plaintiff's case was waived by introducing evidence in defense.

4. Master and servant 265(14)-Burden of issue of contributory negligence on plaintiff.

In an action under the Employers' Liability Act for death, the burden of proof is on plaintiff to affirmatively prove that the injuries resulting in the death were not caused by deceased's own negligence.

5. Negligence 136(8)-Question for court on undisputed evidence.

Where the facts are undisputed, and the inferences which may be drawn from them not equivocal, and can lead to but one conclusion, a matter of law the court will adjudge as whether there is or is not negligence.

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6. Trial 178-On motion for directed verdict, only facts tending to support plaintiff's case considered.

A motion for a directed verdict must be decided on the admitted facts, those brought out by plaintiff's competent evidence, and admitted by the motion, and such facts, brought out by defendant's competent evidence, as tend to support plaintiff's case or corroborate plaintiff's evidence, and facts presented by defendant's evidence not tending to support plaintiff's case or corroborate his evidence cannot be considered.

7. Master and servant 243(1)-Electric lineman, violating rules, held negligent.

Where an experienced electric lineman undertook to transfer wires to a new pole in the

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

(209 P.)

midst of a network of wires, some carrying a, deadly current, without grounding them, as required by a rule of the employer adopted pursuant to Civ. Code 1913, par. 3157, he was guilty of negligence, preventing recovery for his death, in the absence of any showing of an extraordinary situation, requiring the sudden exercise of judgment or discretion.

8. Master and servant 243(4)-Electrio lineman's violation of rules not excused.

Testimony that an electric lineman, in working on or near wires charged with a deadly current without grounding them, as required by the employer's rule, was doing the work in the usual manner, did not excuse the violation of the rule, or prove acquiescence therein by the employer.

appeal has been taken from the denial of the motion for a new trial. The first objection is not well founded. The service of a copy of the motion for new trial is all that is required under paragraph 596, Rev. Stat. 1913. As to the second objection, under the provisions of paragraph 1231, Rev. Stat. 1913, no specific appeal from the order denying the motion for new trial is necessary upon appeal from a final judgment, in order either that the action of the court below in denying the motion for new trial may be reviewed, or that this court may consider the sufficiency of the evidence to sustain the verdict or judgment in an action tried 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.

G. P. Bullard, of Phoenix, for appellant. Favour & Cornick and Arthur G. Baker, all of Prescott, for appellee.

JENCKES, Superior Judge. Plaintiff by

this action seeks to recover from the de

fendant (appellant here) damages for the death of his intestate, Ralph G, Griffith. Recovery is sought under the Employers' Liability Act. Chapter 6, title 14, Rev. Stat. 1913. The occupation was a hazardous one within the statute, and the injury resulting in Griffith's death was caused by an accident which occurred while he was engaged in such occupation. But appellant contends that the evidence shows, as a matter of law, that the deceased was injured by reason of

his own negligence.

A motion for a directed verdict for defendant at the close of plaintiff's case was denied. A similar motion at the conclusion of all the evidence was also denied. The jury returned a verdict for plaintiff in the sum of $2,000 upon which judgment was entered. Appellant seasonably filed its motion for a new trial and served a copy thereof upon appellee. This motion, not having been passed upon or continued for hearing within 20 days from rendition of judgment, was denied by operation of law. Rev. Stat. 1913, par. 591.

Thereafter appellant duly perfected its appeal. The appeal is from the judgment; appellant assigning as error the refusal of the trial court to direct a verdict in its favor at the close of plaintiff's case, and again at the close of all the evidence.

[1, 2] Appellee objects to a reviewal of the evidence upon this appeal, first, because no notice of the motion for a new trial was served upon him; and, second, because no

[4] Upon appellant's remaining assignment of error, all other material allegations having been sufficiently established, it remains but to determine whether or not the undisputed facts as presented by all the evidence are sufficient to affirmatively prove that the injuries resulting in Griffith's death burden of proof in that respect is upon the were not caused by his own negligence. The plaintiff. Southwest Cotton Co. v. Ryan, Chambers, 20 Ariz. 54, 176 Pac. 839. supra; Calumet & Arizona Mining Co. v.

[5] This court has adopted the rule, in cases arising under the Employers' Liability Act, that:

"Where the facts are undisputed, and the inferences which may be drawn from them are sion, the court will adjudge, as a matter of law, not equivocal and can lead to but one concluthat there is or is not negligence." Calumet & Arizona Mining Co. v. Gardner, 21 Ariz. 206, 187 Pac. 563.

[6] The undisputed facts, for the purpose of the consideration of the motion made at the conclusion of all the evidence in the case, are, in addition to any other admitted facts, those brought out by all competent evidence introduced by the plaintiff; the truth thereof being admitted by the motion, and as well all facts brought out by competent evidence of the defendant tending to support plaintiff's case, or in corroboration of plaintiff's evidence, if any such there be. No purported facts presented by defendant's evidence, which do not tend to support plaintiff's case, or corroborate his evidence, can be considered.

[7] With this in mind, the following are the undisputed facts of the case:

The defendant power company owned and operated a certain electric substation, and

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

their employment pursuant to the provisions of paragraph 3157, R. S. 1913; that decedent had ample opportunity to familiarize himself therewith; that he did not govern himself by such rules in the performance of the work in question; that the accident could not have happened, if he had grounded the wires in the manner prescribed by such rules; that all tools requisite and necessary for the grounding of the wires, pursuant to the rules, were immediately available to him.

three high voltage power lines connected had posted certain rules inforning its emtherewith and radiating therefrom, carry- ployés as to the duties and restrictions of ing respectively 11,000, 45,000, and 15,000 volts of electricity at the time of the accident. A set of six telephone wires and another set of three wires, normally carrying 220 volts of electricity, for the operation of a wood saw, but which at the time of the accident was cut off from its source of power in the substation, also owned and operated by defendant, were strung upon a certain wooden pole 75 or 100 feet from the substation and a warehouse adjacent thereto. The telephone wires extended from the warehouse and the "wood-saw circuit" from the substation, the two lines converging at the aforesaid wooden pole. There they separated; the "wood-saw circuit" passing under the three high-voltage power lines, being below the 15,000-volt line a distance of about 3 feet.

That the rule requiring the grounding of wires was a reasonable and practicable means of protection is evident from plaintiff's witness Heffelman, who testified: "That was a rule for personal safety-anybody should do that." That the decedent 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 network of wires, three lines of which were each charged with a current of deadly voltage. He was working both "on and near lines normally carrying current."

According to the testimony of plaintiff's witness Heffelman, Griffith was up on the new pole, standing on his "climbers," his safety belt in place, his head "in the tele phone wires, touching them." He was "put- Accordingly we have 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 “wood-saw” circuit came in contact with the 15,000-volt circuit at the point where the former passed under the latter. Instantly there was a "large flash about his [Griffith's] head" at the point where his head was touching the telephone wires, and he became rigid and unconscious. The power was turned off the 15,000-volt line at the substation, and Griffith was removed from the pole. He died 13 hours thereafter as the result of the injuries received from the electrical shock thus sustained.

The violation by an employé of a rule adopted by his employer for his protection, unless justified, is negligence on the part of the employé. 18 R. C. L. 660. Whether or not in this case the decedent was justified in thus ignoring the rule no attempt is made to show.

[8] It is not even suggested that an extraordinary situation existed requiring the sudden exercise of judgment or discretion on the part of decedent. And plaintiff did not attempt to prove that the decedent's manner of doing the work was a safe and Further, it is undisputed that defendant approved method, or that it had been ac

(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 surrounding rocks. was performing the work in the usual manner. This but proves the truth of the adage that the pitcher which goes too often to the well will be broken at last, and neither excuses the violation nor proves acquiesence therein by the defendant.

4. Appeal and error -846(5)—In absence of request for court to find facts, judgment affirmed, if supported by evidence.

Where no request was made by either party, 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 ed by the evidence. death of plaintiff's intestate was caused by his own negligence. The trial court erred in denying defendant's motion for a directed verdict at the conclusion of all the evidence.

The judgment is reversed, and the cause remanded, with directions to the trial court to enter judgment for the defendant.

ROSS, C. J., and FLANIGAN, J., concur.

NOTE.-MCALISTER, J., being disqualified, took no part in the decision of this

case.

TOM REED GOLD MINES CO. v. UNITED
EASTERN MINING CO. (No. 1963.)

(Supreme Court of Arizona. Sept. 14, 1922.)

1. Mines and minerals 31(1)-Right of own. er of mining claim to go outside surface boundaries stated.

Under Rev. St. U. S. § 2322 (U. S. Comp. St. 4618), relating to rights of locators of mining locations, the owner of any mining claim has the exclusive right of possession and enjoyment, not only of the surface included within the lines of the location, but the exclusive right of possession and enjoyment of all veins, lodes, and ledges throughout their entire depth, the tops or apexes of which lie inside of such surface lines extended downward vertically, though such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side line planes of such locations within the ground beneath the surface lying between the vertical end line planes extended in the direction of the dip of such veins. 2. Mines and minerals

5. Mines and minerals 44-One claiming rights anterior to entry of mining claim for patent not concluded by patent, but entitled to show his prior discovery.

One, who claims rights anterior to the entry of a mining claim for patent, and dependent on the order of the facts making up the right to the land, is not concluded by the patent, but may show such order, including the fact of his own prior discovery of mineral.

Evidence

6. Mines and minerals 38(18) -
held to support judgment of bisected apex of
side line vein.

In an action between owners of adjoining
mining claims to quiet title and establish extra-
lateral rights to a vein apexing in plaintiff's
claim, evidence held to support a judgment
awarding defendant such portions of the side
line vein as are bisected by the common side
line of the claims, with extralateral rights.
7. Mines and minerals
suit to quiet title to vein of mineral, held
entitled to costs, where judgment was partly
in his favor.

38(28)-Plaintiff, in

Where defendant, in action to quiet title to a vein of mineral, claimed title adverse to plaintiff, and the judgment was only partially in his favor, plaintiff was entitled to costs, under Civ. Code 1913, par. 1625.

Appeal from Superior Court, Mohave County; E. Elmo Bollinger, Judge.

Action by the Tom Reed Gold Mines Company against the United Eastern Mining Company. From a judgment granting only partial relief, plaintiff appeals. Modified and affirmed.

Wm. E. Colby, of San Francisco, Cal., and 31(1)-Vein must be Louis L. Wallace, of Kingman, for appellant.

pursued on its course downward.

No extralateral right exists to a vein, lode, or ledge beyond the point where, in its course outside the claim of apex, it becomes flattened and extends from thence horizontally in a departure from the approximate general plane of the vein in its downward course, or for any considerable distance takes an upward trend. 3. Mines and minerals 31 (3)-Vein to which extralateral right attaches must be identical with vein lying within boundaries of claim.

A vein to which the extralateral right attaches must be an integral part of a vein or

John P. Gray, of Coeur d'Alene, Idaho, R. L. Alderman, of Los Angeles, Cal., and C. W. Herndon, of Kingman, for appellee.

FLANIGAN, J. This action was brought by the appellant, Tom Reed Gold Mines Company, against the appellee, United Eastern Mining Company, to quiet title and establish extralateral rights to what appellant denominates the underground segment of a vein known as the Grey Eagle or Tom Reed vein,

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