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and open to her." The declaration of appel- her.” The fact is that the position appeared lant simply amounts to a specification of the to be safe, but in fact was somewhat hazard- . manner in which she failed to exercise due ous, as shown by the accident. In principle care, and displayed a reckless disregard for the case is not unlike Crabbe v. M. C. G. M. her own safety. There are many cases il. Co., supra. lustrating such an exhibition of negligence, [5,6] Nor do we think there is merit in and no one would deny that she should not the contention that, “under the facts estabrecover if her conduct was thus groperly lished, no duty rested upon appellant to characterized by appellant. But we cannot place guards on or around the shaft, and resay that the method employed by her in do- spondent was not unaware that guards had ing the work was unreasonable or improper not been so placed." The latter clause may or that she was not following in good faith be accepted as true, but whether it was the the directions given her by the employer. duty of appellant to so protect the shaft is Her explanation of the occurrence is not im- at least susceptible of an honest difference probable, and we must hold that she was of opinion, and it is not an unreasonable acting as an ordinarily careful person would conclusion, in view of the circumstances, under the circumstances. In considering her that appellant should have taken this preaccount of the affair, we cannot lay out of caution for the safety of its employés. The view the circumstance that she was called up- fact that respondent knew that the shaft on to work rapidly, and that the emergency was unprotected does not affect the duty of of the situation required her to move back appellant in the premises, but bears upon and forth upon the platform in order to the consideration of "contributory neglireach with the short stick which she used gence" or "assumption of risk,” and of this the different portions of the grate above. nothing more needs to be said. Even if she stationed herself closer to the As to such duty of appellant, it is suffishaft than appears now to have been neces-cient to cite Silveira v. Iversen, 128 Cal. sary, the stress of the circumstances sur- 192, 60 Pac. 687; Davis v. Pacific Power rounding her would excuse the mistake. As Co., supra; Jacobson v. Oakland M. & P. to this, indeed, appellant attempts to demon- Co., 161 Cal. 425, 119 Pac. 653, Ann. Cas. strate that she would have been nearer to 1913B, 1194; Perry V. Angelus Hospital the hops if she had stood several inches from Ass'n, 172 Cal. 311, 156 Pac. 449. It is quite said south post. This may be true, but, in clear that the accident would not have hapview of the haste required, we cannot hold pened if the shaft had not projected beyond her to an exact computation of the respec- the bearing, or if it had been protected by tire distances.

some simple device. This particular danger [3, 4] Besides, her statement that it was could easily have been obviated, and we necessary to take advantage of the brace is think it not unjust to hold appellant to the not unreasonable. We are satisfied it can requirement of such care and foresight. not be said that plaintiff voluntarily select

The fifth and sixth contentions of appeled an unsafe place in which to work, or lant are based upon the theory that respondadopted a dangerous method to discharge her ent is chargeable with contributory negli. duties. Guided by her statements, we must gence. We think it cannot be so held, in conclude that she was without fault, and view of the evidence on behalf of the plainthat the accident would not have occurred tiff. This consideration has already received if said shaft had been suitably protected. sufficient attention as we conceive it. Of "Just how this thing occurred,” as said in course, if we were bound to accept the testhe Davis Case, supra, may not be known. timony of defendant's witnesses as to the acThere is no doubt, however, that plaintiff's cident, the conclusion would follow that the clothing came in contact with the shaft. injury was the result of plaintiff's negliThis may have been caused by a sudden gust gence; but we must adopt the theory supof wind, or by her sudden movement in ported by the evidence for the other side, reaching for the hops, and she may even and that evidence leads inevitably to the have been standing close to the last rod on conclusion that the only negligence in the the grate, instead of against the post, as case was on the part of appellant. Upon the plaintiff thinks; but, at any rate, we can- theory that plaintiff was telling the truth, not say that she did not act with due circum- there is no room even for an application of spection.

the doctrine of comparative negligence. What has been said is probably a suffi. Appellant attaches much importance to the cient answer to the next proposition of ap- matter of instructions. The court gave this pellant, that “no obligation rested on appel instruction, taken from the Code: lant to warn its employés of patent and ob “You are instructed that a witness false in vious dangers." The principle may be ac one part of his testimony is to be distrusted in

others." cepted, but its application must be rejected. "The shaft was not a menace, in the sense

Appellant requested a more elaborate in. that the likelihood of its catching her dress struction, containing this amplification: while she was at work in her bin was con

"If you believe that a witness has testified stantly, or occasionally, or ever, before falsely, and has done so knowingly and willfully

as to any material matter, you may disregard,” , the bin, but had a right to go upon the floor .etc.

for rest or recreation. Therefore, if we conIn People v. Plyler, 121 Cal. 160, 53 Pac. cede that the instruction embodied a correct 553, it was said that an instruction similar statement of the law, it was properly refusto the one herein requested by appellant was ed as applicable to a theory without support an accurate expression of the statute's mean- in the evidence. Sill v. Ceschi, 167 Cal. 698, ing and should have been given. However, 140 Pac. 949. the case was not reversed for that error, as Again, if plaintiff was on the floor, it canthe court declared that a new trial should be not be disputed that she was ready and waithad in consequence of the refusal of the low-ing to take her place at the bin when the er court to continue the trial on the defend hops should arrive and her work begin. In ant's motion. Under the circumstances here either event, therefore, she was really enin, we do not think the action of the court in gaged in the line of her duty and the course this particular involves prejudicial error. It of her employment, and the defendant's rewas not error at all to give the instruction sponsibility for her safety falls within the in the language of the Code. People v. 'Dob general rule already stated. Davis v. Pacifbins, 138 Cal. 694, 72 Pac. 339. Nor would ic Power Co., supra; Cordler v. Keffel, 161 it have been prejudicially erroneous to re- Cal. 475, 119 Pac. 658. Moreover, at the refuse it. Medlin v. Spazier, 23 Cal. App. 242, quest of appellant, an instruction applicable 137 Pac. 1078. This follows from the consid- to the theory that plaintiff was not at work eration that it pertains to a mere common- was given by the court as follows: place matter, that juries are presumed to "The court instructs you that if an employé know about and act upon in the absence of sustains injuries while he or she is voluntarily such instruction. People v. Delucchi, 17 Cal. and unnecessarily absent from his or her post of

duty, and neglects to exercise ordinary care App. 96, 118 Pac. 935. But the proposed in- for his or her own safety, he or she cannot recorstruction involved in no less degree a plati- er damages for said injuries. If, therefore, you tudinous truism to which the jury, unless find from the evidence that at the time of the lacking in average intelligence, did not need injury to plaintiff she was voluntarily and un

necessarily absent from the place where the deto have their attention called. And if they fendant company had assigned her to work, and were so deficient in mind, the instruction that while so absent she neglected to exercise could have been of no value to them. It ordinary care for her own safety, by reason of

which her dress came in contact with said shaft, should certainly not be deemed of vital im- resulting in the injuries complained of, then I portance to tell the ordinary man of the instruct you that plaintiff cannot recover, and world that he should distrust the statements your verdict must be for defendant." of a witness whom he believes to be a liar. The foregoing is certainly as favorable to It may be further said that the court gave appellant along that line as the law would elaborate instructions upon the credibility of permit. witnesses which were amply sufficient to cov Appellant is at a loss to understand why er this very consideration.

the court refused to give this instruction: [8] The court refused the instruction, re

“The court instructs you that persons of quested by defendant, of which the impor-such age and experience as to be capable of ex

ercising discretion and of appreciating dangers tant part is as follows:

in the work in which they are engaged cannot "If plaintiff was not at the time of the acci- ; recover damages for injuries caused by their indent at the place where she was directed or re- attention to their surroundings, and failure to quired to be, and where she should have been in take due precautions against known or obvious the discharge of her duty, but of her own voli- dangers.” tion was at some other place in the mill, to We think the instruction was properly resuit her own convenience or for her own purpose, then I instruct you that plaintiff cannot fused, for the reasons, among others, that it recover, and your verdict must be for the de was based upon the unsupported hypothesis fendant."

that the danger was known and obvious to The reason for this was that certain wit- the plaintiff, it implied that the doctrine of nesses for appellant testified that the plain the "assumption of risk” was applicable to titľ, at the time of the accident was not en- the case, and it ignored the principle of gaged in her work, but was participating on "comparative negligence." the floor in a playful diversion and heedless There is some other criticism of the action ly backed into the shaft. But we think the of the court in reference to the instructions, instruction was properly refused for several but we hardly think it advisable to notice it reasons, one of which is: It was based upon specifically. The court eliminated some rethe assumption that plaintiff was at a place dundant matter and corrected some inaccuwhere she should not have been. There is racies in several instructions that were prono room for that inference. The only possi- posed, and gave them as corrected. (pon an ble conclusion is that she was at work, or examination of the whole charge, we are satelse she was away from the bin because there isfied that every necessary legal principle apwas no work to do at the time. Assuming plicable to any just theory of the evidence that it is true, as stated by some of the wit was presented to the jury, and it appears to nesses for appellant, that the machinery was us that therein is found no substantial resnot in operation by reason of the lack of son for complaint

the so-called Roseberry Act of 1911 and sec- to present and embody a complete scheme tion 1970 of the Civil Code were and are ap- for the enforcement of a cause of action like plicable to the cause. This situation was al- that before us, and it is apparent that all so conceded in the opening brief of counsel prior legislation on the subject is inconsistfor appellant, but in the closing brief of ent with the provisions of said act. But this Messrs. Harrison & Harrison, substituted at- statute manifestly can be of no value or torneys, the point is made that they were re- benefit to respondent, since by express provi. pealed by the Workmen's Compensation Act sion the vital part of the act can have no apof 1913, which went into effect before the plication to any negligence occurring prior commencement of this action. There is no to January 1, 1914. question, though, that the accident happened [9] We do not think the Legislature intendbefore said act of 1913 became operative, ed that there should be no statutory proviand, without following the argument of ap- sion whereby persons in the class of the pellant in detail, we deem it apparent that plaintiff might secure redress for their insection 91 of the act—"the compensation pro-juries; but that a fair and just construction visions of this act shall not apply to any in- of said saving clause leads to the conclusion jury sustained prior to the taking effect that respondent's case was to be controlled thereof"--constitutes a saving clause, and by the law as it existed when she was incontinued in force as far as this case is con- jured. cerned, the said Roseberry Law and said sec (10) We also think it should be held that tion of the Code, the last introducing the con- plaintiff's right of action was a vested right, dition that the employé must “fully under which could not be taken away by the repeal stand, comprehend and appreciate" the dan- of said Roseberry Act. At the time the acger to bar his recovery in case of an obvious cident happened she was at work under the peril, and the Roseberry Act having made a operation of a law which provided that, if part of our liability law the doctrine of injured by the negligence of her employer, "comparative negligence.”

she was entitled to damages for the same, There is a contention in the opening brief although she might be guilty of slight negliof appellant that the verdict is excessive, and gence herself. In other words, the law proshould be set aside for that reason; but the vided that a certain class of persons was enpoint does not seem to be insisted upon in titled to be compensated by the employer for the final brief. We may say, however, that personal injuries suffered by the former. a complete answer to the suggestion is found Plaintiff showed that she belonged to that in Zibbell v. Southern Pacific Co., 160 Cal. class, and therefore had a vested right to 237, 116 Pac. 513, and Scragg v. Sallee, 24 such compensation. The subject was careCal. App. 133, 140 Pac. 706.

fully considered by this court in the case of The case, as we view it, was fairly, con- James v. Oakland Traction Co., 10 Cal. App. scientiously, and ably tried by the learned 785, 103 Pac. 1082, in which a petition for judge who presided, and, after an examina- hearing by the Supreme Court was denied. tion of the whole record, we are satisfied Therein it was held, in an opinion written by that the verdict should not be disturbed. Justice Hart, that: The judgment and order are affirmed.

"Where section 501 of the Civil Code, as it

stood at the time of the injury, regulated the We concur: CHIPMAN, P. J.; HART, J. speed of the car so as not to exceed eight miles

per hour, such section as it then stood entered

into and became part of the contract between On Rehearing.

the carrier and passengers, which conferred a

vested right to recover for breach of such conBURNETT, J. We have given careful at. tract, and the subsequent repeal thereof in 1903 tention to the forcible and instructive peti- cannot operate retroactively to destroy or affect

such vested right." tion for rehearing filed herein by appellant. The position urged with the strongest reason We think the same principle is applicable relates to the effect of the so-called saving here. The conditions prescribed in the said clause in the said Workmen's Compensation Roseberry Act constituted a part of plainAct of 1913. It may be admitted that the tiff's contract with defendant, and the queslanguage was not very happily chosen to ex- tion is not, therefore, one of abrogating or press the intention of the Legislature that changing a statutory remedy; but the conthe law in force at the time should apply to struction upon which appellant insists inan accident occurring prior to January 1, volves an interference with and the destruc1914, but that such was the intention of the tion of a vested right of an employé sustainLegislature we feel reasonably satisfied. ing a certain relation to the employer. Otherwise, said section 91 of the act of 1913 The cases cited by appellant—at least, could have no purposeful and effective opera- most of them-can be reconciled with our tion.

position herein as they involve a purely statIf we adopt the reasoning of appellant, we utory right, whereas we are dealing with must hold that there is no statutory law in an obligation based upon the common law force in this state whereby respondent may which is made definite and enforceable by secure any remedy for the wrong that she the provisions of the statute. We may repeat suffered. The said act of 1913 was intended that, if plaintiff's right to recover for dam

DENCE.

ages was derived wholly from the statute, , of San Jose, for appellant New Guadalupe the Legislature, no doubt, while said right Mining Co. William A. Nunlist, of San Franwas inchoate and not reduced to possession cisco, for appellant Porta. George K. Ford, or perfected by final judgment, might repeal of San Francisco, for respondent. the statute and destroy the remedy ; but a different rule seems to apply where, as here LENNON, P. J. In this action, the plaintiff in, the right is really derived from the con- Jessie Moreno, as administratrix of the estate mon law.

of her husband, Frederick Moreno, deceased, 'We think the said Roseberry Act and sec- sought and secured a judgment against the tion 1970 of the Civil Code were applicable defendants, New Guadalupe Mining Company to the case of the plaintiff, and on the other and Fred Porta, one of its employés, for the points we adhere to the views heretofore ex- death of the deceased, alleged to have been pressed.

caused by the negligence of said defendants. The petition for rehearing is denied. The case was tried with a jury, and a ver

dict returned in favor of plaintiff and against We concur: CHIPMAN, P. J.; HART, J. both defendants in the sum of $8,000. From

the judgment entered thereon and from the

order denying a new trial, the defendants (35 Cal. App. 744)

have appealed. MORENO V. NEW GUADALUPE MINING

Briefly stated, the facts of the case are CO. et al. (Civ. 2254.)

these: The defendant New Guadalupe Min

ing Company was a corporation engaged in (District Court of Appeal, First District, Cali- the working of a mine in the county of Sanfornia. Dec. 31, 1917. Rehearing Denied by Supreme Court Feb. 28, 1918.)

ta Clara. On the 3d day of August, 1913,

the decedent, Frederick Moreno, was employ1. DEATH 76 - CAUSE OF DEATH Evi

ed by the corporation defendant as a "tool In action for death, evidence held to war

nipper." In such capacity it was his duty rant a finding that a certain accident, and not to carry powder and the sharpened drills and typhoid fever, was the cause of death.

tools used in the working of the mine down 2. EVIDENCE Ow471(21)-OPINION-DECLARA- to the various levels of the mine and to bring TIONS.

such tools and drills as had been dulled by Declarations of deceased as to how an accident happened, made 30 minutes after the ac

use to the surface. The shaft from the surcident, were but expressions of opinion.

face to the various levels of the mine ran 3. EVIDENCE @ 126(2)—RES GESTÆ.

at an angle of about 42 degrees from the Such declarations were no part of the res horizontal plane of surface, and installed gesta.

in it were two parallel tracks on which 4. Trial Om85_OBJECTIONS-GROUNDS. A general objection to admission of evidence face by cables attached to a drum, which was

cars or "skips” were operated from the surcannot be considered unless the evidence was evidently inadmissible for any purpose within in turn operated by an engine. The cars or any conceivable legitimate view of the case. skips were used by employés of the corpora. 5. EVIDENCE C243(4)-ADMISSIONS-DECLA- tion defendant to enter and leave the mine BATIONS IN PRESENCE OF ADVERSE PARTY.

and also for the lowering of supplies into A declaration by a servant, in the presence and the taking of ore from the mine. On of one joined as defendant, of the reason for an accident, made 30 minutes after the accident, August 3, 1913, the decedent, Frederick Morewas admissible, under Code Civ. Proc. §. 1870, no, was directed to take certain supplies subd. 3, relating to declarations made within the observation of a party and his conduct in rela- down into the mine. At about 2 p. m. of tion thereto.

that day the defendant Fred Porta, who was 6. WITNESSES C219(5)-PHYSICIANS-WAIV- employed by the corporation defendant as ER OF PRIVILEGE.

a shift boss, but who was then operating the The privilege given by Code Civ. Proc. mechanism which controlled one of the cars, 1881, subd. 4, before amendment, providing that physicians could not testify as to information undertook to let the deceased down into the acquired from the relationship, is waived in a mine. When the car upon which the decedpersonal injury or death action by the patient ent was riding had descended about 450 feet or his administrator putting other witnesses on the stand or going on the stand to testify as into the mine it stopped suddenly, but what to the nature of the injuries.

actually happened then to the decedent was

known to, and witnessed by, no one save him'Appeal from Superior Court, Santa Clara self. The circumstances attending the de County; P. F. Gosbey, Judge.

scent of the decedent into the mine were narAction by Jessie Moreno, as administra- rated by one Celaya, who was the “hoistman" trix of the estate of Frederick Moreno, de regularly employed at the mine to operate the ceased, against the New Guadalupe Mining engine which controlled the car, and who was Company, a corporation, and Fred Porta. called as a witness for the plaintiff. He testiJudgment for plaintiff, and defendants ap- fied in part and to the effect that the car in peal. Reversed and remanded.

which the decedent was descending, and Crittenden & Simmons, of San Francisco, which at the time was operated and controland C. L. Witten and H. W. McComas, both led by the defendant Porta, was going down

very fast, "at a very rapid rate of speed" and show the cause of death of the deceased is that it was stopped “instantly by the jerk” the first point made in support of the at about 40 or 50 feet from the station be appeal. In response thereto we deem it suflow, because the defendant Porta threw in ficient to say that, although the evidence the clutch which controlled the speed of relied upon for the plaintiff to show the the car. About 30 minutes after this sudden cause of death was wholly circumstantial, stop of the car in which the decedent was nevertheless we deem it sufficient to have descending into the mine this witness hoisted warranted the court below in submitting the the decedent to the surface. The witness case to the jury, and we are not prepared to said that the decedent was pale, and that say that the jury could not have legitimateupon coming to the surface the decedently drawn from such evidence the inference in the presence of the defendant Porta nar that the accident in question was the cause rated how and why the car stopped and what of the death of deceased. happened to him at the time. Shortly there The point is made that the trial court after the decedent went to his home, but erred to the prejudice of the defendants, and returned the next day to his work and again particularly the corporation defendant, in descended into the mine, but remained there its ruling which permitted in evidence, over only a small portion of the day when he objection, the declaration of the deceased, went home.

made some 30 minutes after the accident in The plaintiff, Jessie Moreno, testified: the presence of the plaintiff's witness Ce That she was the wife of deceased; "that on laya and the defendant Porta, and which the day of the accident decedent came home and declaration the record shows was addressed said he felt pretty bad; that she gave him some salt water, and that he threw up a small quan: Porta. With reference to that phase of the

to both the witness and the defendant tity of blood, although not very much; that decedent did not return to work that day, but he case the record shows that Mr. Ford, one did the following day; that he did not stay very of the counsel for plaintiff, questioned the long; he came back right away and went to bed and did not get out of bed any more ; he witness as follows: stayed in bed until he died; that she saw him "Q. What, if anything, did Mr. Moreno say every day; upon the day of the accident dece- to Mr. Porta in your presence? A. He said, dent showed witness his left side, which was 'You let me down pretty fast; he almost killed bruised; that thereafter it became black and me'; he said, “You stopped the skip on the remained black until the time of his death; she jerk and threw on the clutch and dragged me observed a bruise on his left side; thereafter quite a ways;' and he had his clothes all torn. it kept getting blacker every day; they gave her "Mr. Simmons (counsel for the defendants): a little liniment to run on it, which she rubbed That is objected to; merely opinion evidence. on the bruise and side as directed; that from the I ask that that be stricken out, as to whether first day after the accident decedent made fre- or not he almost killed him. quent exclamations of pain; that he groaned "The Court: There are some expressions of lots and could not keep still in bed, the pain was opinion. It is not responsive to your question 80 bad, and had difficulty in taking a long at all. He asked him what he said and he anbreath because the pain would hurt him lots.” swered 'he had his clothes all torn.'

“Mr. Ford: The answer generally was referOther members of the deceased's family ring to the remark that Mr. Moreno said, 'You and household testified that he had a black almost killed me.' and blue bruise on the left side of his body, the conversation was.

"The Court: That may stand; that is what

'He had his clothes all and that he complained of pain in that side; torn' may go out. that on the evening of the day of the acci “Mr. Simmons: Even as to the remainder of dent the left side and back of the deceased that answer, as to the words 'you almost killed

me,' I object to that also. showed a big red spot; that there were no

"The Court: Did he say that? scratches or cuts on the body, and that the "Mr. Simmons: He said, 'You let me down skin was not torn; that the following day pretty fast; you almost killed me.' the spot or bruise turned black and blue;

"The Court: It may stand.” that the discolored portion of the deceased's [2, 3] It must be conceded, as counsel for body was about a foot in diameter and ex- the defendants contend, that the statements tended around on the back about, but not of the deceased which the trial court permitquite, to the spinal column; that the deceas-ted in evidence were but the expression of ed vomited very little and had little fever an opinion as to the cause and consequence and no chills; that he was not delirious; of the accident, and, having been made some that he did not get out of bed and was unable 30 minutes after the accident, were clearly to get out of bed without assistance; that the narrative of a past event, and conse he continually complained of pain in the side quently were no part of the res gestæ. and never complained of pain in the head. [4] But, even assuming that it may be

Dr. Gober was first in attendance upon the said that the trial court considered the obdeceased, and later Dr. Blair was called in. jection to the evidence in question as having Both doctors made an examination of the been seasonably made, still it must be noted body and the condition of the deceased. that the objection as made was rested solely They continued in attendance upon the de- upon the single ground that the evidence ceased until the time of his death. But elicited from the witness was “merely opinneither doctor was called as a witness for ion evidence.” The purpose of the rule which the plaintiff.

ordinarily requires that an objection to be [1] The insufficiency of the evidence to available must be made upon specific grounds

170 P.-69

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