to be safe, but in fact was somewhat hazard-. ous, as shown by the accident. In principle the case is not unlike Crabbe v. M. C. G. M. Co., supra.

[5, 6] Nor do we think there is merit in the contention that, "under the facts established, no duty rested upon appellant to place guards on or around the shaft, and respondent was not unaware that guards had not been so placed." The latter clause may be accepted as true, but whether it was the duty of appellant to so protect the shaft is at least susceptible of an honest difference of opinion, and it is not an unreasonable conclusion, in view of the circumstances, that appellant should have taken this precaution for the safety of its employés. The fact that respondent knew that the shaft was unprotected does not affect the duty of appellant in the premises, but bears upon the consideration of "contributory negli gence" or "assumption of risk," and of this nothing more needs to be said.

and open to her." The declaration of appel- | her." The fact is that the position appeared lant simply amounts to a specification of the manner in which she failed to exercise due care, and displayed a reckless disregard for her own safety. There are many cases illustrating such an exhibition of negligence, and no one would deny that she should not recover if her conduct was thus properly characterized by appellant. But we cannot say that the method employed by her in doing the work was unreasonable or improper or that she was not following in good faith the directions given her by the employer. Her explanation of the occurrence is not improbable, and we must hold that she was acting as an ordinarily careful person would under the circumstances. In considering her account of the affair, we cannot lay out of view the circumstance that she was called upon to work rapidly, and that the emergency of the situation required her to move back and forth upon the platform in order to reach with the short stick which she used the different portions of the grate above. Even if she stationed herself closer to the shaft than appears now to have been necessary, the stress of the circumstances surrounding her would excuse the mistake. As to this, indeed, appellant attempts to demonstrate that she would have been nearer to the hops if she had stood several inches from said south post. This may be true, but, in view of the haste required, we cannot hold her to an exact computation of the respec

tive distances.

[3, 4] Besides, her statement that it was necessary to take advantage of the brace is not unreasonable. We are satisfied it cannot be said that plaintiff voluntarily selected an unsafe place in which to work, or adopted a dangerous method to discharge her duties. Guided by her statements, we must conclude that she was without fault, and that the accident would not have occurred if said shaft had been suitably protected. "Just how this thing occurred," as said in the Davis Case, supra, may not be known. There is no doubt, however, that plaintiff's clothing came in contact with the shaft. This may have been caused by a sudden gust of wind, or by her sudden movement in reaching for the hops, and she may even have been standing close to the last rod on the grate, instead of against the post, as plaintiff thinks; but, at any rate, we cannot say that she did not act with due circumspection.

As to such duty of appellant, it is sufficient to cite Silveira v. Iversen, 128 Cal. 192, 60 Pac. 687; Davis v. Pacific Power Co., supra; Jacobson v. Oakland M. & P. Co., 161 Cal. 425, 119 Pac. 653, Ann. Cas. 1913B, 1194; Perry v. Angelus Hospital Ass'n, 172 Cal. 311, 156 Pac. 449. It is quite clear that the accident would not have happened if the shaft had not projected beyond the bearing, or if it had been protected by some simple device. This particular danger could easily have been obviated, and we think it not unjust to hold appellant to the requirement of such care and foresight.

The fifth and sixth contentions of appellant are based upon the theory that respondent is chargeable with contributory negligence. We think it cannot be so held, in view of the evidence on behalf of the plaintiff. This consideration has already received sufficient attention as we conceive it. Of course, if we were bound to accept the testimony of defendant's witnesses as to the accident, the conclusion would follow that the injury was the result of plaintiff's negligence; but we must adopt the theory supported by the evidence for the other side, and that evidence leads inevitably to the conclusion that the only negligence in the case was on the part of appellant. Upon the theory that plaintiff was telling the truth, there is no room even for an application of the doctrine of comparative negligence.

Appellant attaches much importance to the matter of instructions. The court gave this

What has been said is probably a sufficient answer to the next proposition of appellant, that "no obligation rested on appel-instruction, taken from the Code: lant to warn its employés of patent and obvious dangers." The principle may be accepted, but its application must be rejected. "The shaft was not a menace, in the sense that the likelihood of its catching her dress while she was at work in her bin was constantly, or occasionally, or ever, before |

"You are instructed that a witness false in one part of his testimony is to be distrusted in others."

Appellant requested a more elaborate instruction, containing this amplification: "If you believe that a witness has testified falsely, and has done so knowingly and willfully

170 PACIFIC REPORTER

as to any material matter, you may disregard," the bin, but had a right to go upon the floor (Cal .etc. cede that the instruction embodied a correct for rest or recreation. Therefore, if we constatement of the law, it was properly refused as applicable to a theory without support in the evidence. Sill v. Ceschi, 167 Cal. 698, 140 Pac. 949.

In People v. Plyler, 121 Cal. 160, 53 Pac. 553, it was said that an instruction similar to the one herein requested by appellant was an accurate expression of the statute's meaning and should have been given. However, the case was not reversed for that error, as the court declared that a new trial should be had in consequence of the refusal of the lower court to continue the trial on the defendant's motion. Under the circumstances herein, we do not think the action of the court in this particular involves prejudicial error. was not error at all to give the instruction It in the language of the Code. People v. 'Dobbins, 138 Cal. 694, 72 Pac. 339. Nor would it have been prejudicially erroneous to refuse it. Medlin v. Spazier, 23 Cal. App. 242, 137 Pac. 1078. This follows from the consideration that it pertains to a mere commonplace matter, that juries are presumed to know about and act upon in the absence of such instruction. People v. Delucchi, 17 Cal. App. 96, 118 Pac. 935. But the proposed instruction involved in no less degree a platitudinous truism to which the jury, unless lacking in average intelligence, did not need to have their attention called. were so deficient in mind, the instruction And if they could have been of no value to them. It should certainly not be deemed of vital importance to tell the ordinary man of the world that he should distrust the statements of a witness whom he believes to be a liar. It may be further said that the court gave elaborate instructions upon the credibility of witnesses which were amply sufficient to cover this very consideration.

[8] The court refused the instruction, requested by defendant, of which the important part is as follows:

"If plaintiff was not at the time of the accident at the place where she was directed or required to be, and where she should have been in the discharge of her duty, but of her own volition was at some other place in the mill, to suit her own convenience or for her own purpose, then I instruct you that plaintiff cannot recover, and your verdict must be for the defendant."

The reason for this was that certain witnesses for appellant testified that the plaintiff, at the time of the accident was not engaged in her work, but was participating on the floor in a playful diversion and heedlessly backed into the shaft. But we think the instruction was properly refused for several reasons, one of which is: It was based upon the assumption that plaintiff was at a place where she should not have been. There is no room for that inference. The only possible conclusion is that she was at work, or else she was away from the bin because there was no work to do at the time. Assuming that it is true, as stated by some of the witnesses for appellant, that the machinery was not in operation by reason of the lack of hops, plaintiff was not required to remain at

not be disputed that she was ready and waitAgain, if plaintiff was on the floor, it caning to take her place at the bin when the hops should arrive and her work begin. In either event, therefore, she was really engaged in the line of her duty and the course sponsibility for her safety falls within the of her employment, and the defendant's regeneral rule already stated. Davis v. Pacific Power Co., supra; Cordler v. Keffel, 161 Cal. 475, 119 Pac. 658. Moreover, at the request of appellant, an instruction applicable to the theory that plaintiff was not at work was given by the court as follows:

sustains injuries while he or she is voluntarily "The court instructs you that if an employé and unnecessarily absent from his or her post of for his or her own safety, he or she cannot recovduty, and neglects to exercise ordinary care er damages for said injuries. If, therefore, you find from the evidence that at the time of the injury to plaintiff she was voluntarily and unnecessarily absent from the place where the dethat while so absent she neglected to exercise fendant company had assigned her to work, and ordinary care for her own safety, by reason of resulting in the injuries complained of, then I which her dress came in contact with said shaft, instruct you that plaintiff cannot recover, and your verdict must be for defendant."

appellant along that line as the law would The foregoing is certainly as favorable to permit.

Appellant is at a loss to, understand why the court refused to give this instruction:

such age and experience as to be capable of ex"The court instructs you that persons of ercising discretion and of appreciating dangers recover damages for injuries caused by their inin the work in which they are engaged cannot attention to their surroundings, and failure to take due precautions against known or obvious dangers."

fused, for the reasons, among others, that it We think the instruction was properly rewas based upon the unsupported hypothesis the plaintiff, it implied that the doctrine of that the danger was known and obvious to the "assumption of risk" was applicable to the case, and it ignored the principle of "comparative negligence."

of the court in reference to the instructions, There is some other criticism of the action but we hardly think it advisable to notice it specifically. The court eliminated some redundant matter and corrected some inaccuracies in several instructions that were proposed, and gave them as corrected. Upon an examination of the whole charge, we are satisfied that every necessary legal principle applicable to any just theory of the evidence was presented to the jury, and it appears to us that therein is found no substantial resson for complaint.

for the enforcement of a cause of action like that before us, and it is apparent that all prior legislation on the subject is inconsistent with the provisions of said act. But this statute manifestly can be of no value or benefit to respondent, since by express provision the vital part of the act can have no application to any negligence occurring prior to January 1, 1914.

the so-called Roseberry Act of 1911 and sec-1 to present and embody a complete scheme tion 1970 of the Civil Code were and are applicable to the cause. This situation was also conceded in the opening brief of counsel for appellant, but in the closing brief of Messrs. Harrison & Harrison, substituted attorneys, the point is made that they were repealed by the Workmen's Compensation Act of 1913, which went into effect before the commencement of this action. There is no 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 section of the Code, the last introducing the condition that the employé must "fully understand, comprehend and appreciate" the danger to bar his recovery in case of an obvious peril, and the Roseberry Act having made a part of our liability law the doctrine of "comparative negligence."

There is a contention in the opening brief of appellant that the verdict is excessive, and should be set aside for that reason; but the point does not seem to be insisted upon in the final brief. We may say, however, that a complete answer to the suggestion is found in Zibbell v. Southern Pacific Co., 160 Cal. 237, 116 Pac. 513, and Scragg v. Sallee, 24 Cal. App. 153, 140 Pac. 706.

The case, as we view it, was fairly, conscientiously, and ably tried by the learned judge who presided, and, after an examination of the whole record, we are satisfied that the verdict should not be disturbed. The judgment and order are affirmed.

[10] We also think it should be held that plaintiff's right of action was a vested right, which could not be taken away by the repeal of said Roseberry Act. At the time the accident happened she was at work under the operation of a law which provided that, if injured by the negligence of her employer, she was entitled to damages for the same, although she might be guilty of slight negligence herself. In other words, the law provided that a certain class of persons was entitled to be compensated by the employer for personal injuries suffered by the former. Plaintiff showed that she belonged to that class, and therefore had a vested right to such compensation. The subject was carefully considered by this court in the case of James v. Oakland Traction Co., 10 Cal. App. 785, 103 Pac. 1082, in which a petition for hearing by the Supreme Court was denied. Therein it was held, in an opinion written by Justice Hart, that:

"Where section 501 of the Civil Code, as it stood at the time of the injury, regulated the speed of the car so as not to exceed eight miles

We concur: CHIPMAN, P. J.; HART, J. per hour, such section as it then stood entered

On Rehearing.

BURNETT, J. We have given careful attention to the forcible and instructive petition for rehearing filed herein by appellant. The position urged with the strongest reason relates to the effect of the so-called saving clause in the said Workmen's Compensation Act of 1913. It may be admitted that the language was not very happily chosen to express the intention of the Legislature that the law in force at the time should apply to an accident occurring prior to January 1, 1914, but that such was the intention of the Legislature we feel reasonably satisfied. Otherwise, said section 91 of the act of 1913 could have no purposeful and effective operation.

into and became part of the contract between the carrier and passengers, which conferred a vested right to recover for breach of such contract, and the subsequent repeal thereof in 1903 cannot operate retroactively to destroy or affect such vested right."

We think the same principle is applicable here. The conditions prescribed in the said Roseberry Act constituted a part of plaintiff's contract with defendant, and the question is not, therefore, one of abrogating or changing a statutory remedy; but the construction upon which appellant insists involves an interference with and the destruction of a vested right of an employé sustaining a certain relation to the employer.

The cases cited by appellant-at least, most of them-can be reconciled with our 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

Mining Co. William A. Nunlist, of San Francisco, for appellant Porta. George K. Ford, of San Francisco, for respondent.

ages was derived wholly from the statute, [ of San Jose, for appellant New Guadalupe the Legislature, no doubt, while said right was inchoate and not reduced to possession or perfected by final judgment, might repeal the statute and destroy the remedy; but a different rule seems to apply where, as herein, the right is really derived from the common law.

We think the said Roseberry Act and section 1970 of the Civil Code were applicable to the case of the plaintiff, and on the other points we adhere to the views heretofore expressed.

The petition for rehearing is denied.

LENNON, P. J. In this action, the plaintiff Jessie Moreno, as administratrix of the estate of her husband, Frederick Moreno, deceased, sought and secured a judgment against the defendants, New Guadalupe Mining Company and Fred Porta, one of its employés, for the death of the deceased, alleged to have been caused by the negligence of said defendants. The case was tried with a jury, and a verdict returned in favor of plaintiff and against

We concur: CHIPMAN, P. J.; HART, J. both defendants in the sum of $8.000. From

(35 Cal. App. 744)

MORENO v. NEW GUADALUPE MINING
CO. et al. (Civ. 2254.)

(District Court of Appeal, First District, Cali-
fornia. Dec. 31, 1917. Rehearing Denied
by Supreme Court Feb. 28, 1918.)

the judgment entered thereon and from the order denying a new trial, the defendants have appealed.

Briefly stated, the facts of the case are these: The defendant New Guadalupe Mining Company was a corporation engaged in the working of a mine in the county of Santa Clara. On the 3d day of August, 1913, the decedent, Frederick Moreno, was employEVI-ed by the corporation defendant as a "tool nipper." In such capacity it was his duty to carry powder and the sharpened drills and tools used in the working of the mine down

In action for death, evidence held to warrant a finding that a certain accident, and not typhoid fever, was the cause of death.

2. EVIDENCE 471(24)-OPINION-DECLARA- to the various levels of the mine and to bring

TIONS.

such tools and drills as had been dulled by use to the surface. The shaft from the surface to the various levels of the mine ran at an angle of about 42 degrees from the

Declarations of deceased as to how an accident happened, made 30 minutes after the accident, were but expressions of opinion. 3. EVIDENCE 126(2)-RES GESTÆ. Such declarations were no part of the res horizontal plane of surface, and installed gestæ.

in it were two parallel tracks on which cars or "skips" were operated from the surface by cables attached to a drum, which was in turn operated by an engine. The cars or skips were used by employés of the corporation defendant to enter and leave the mine and also for the lowering of supplies into and the taking of ore from the mine. On August 3, 1913, the decedent, Frederick Moreno, was directed to take certain supplies At about 2 p. m. of down into the mine. that day the defendant Fred Porta, who was 219(5)-PHYSICIANS-WAIV-employed by the corporation defendant as

4. TRIAL 85-OBJECTIONS-GROUNDS.

A general objection to admission of evidence cannot be considered unless the evidence was evidently inadmissible for any purpose within any conceivable legitimate view of the case. 5. EVIDENCE 243(4)—ADMISSIONS-DECLABATIONS IN PRESENCE OF ADVERSE PARTY.

A declaration by a servant, in the presence of one joined as defendant, of the reason for an accident, made 30 minutes after the accident, was admissible, under Code Civ. Proc. § 1870, subd. 3, relating to declarations made within the observation of a party and his conduct in rela

tion thereto.

6. WITNESSES

ER OF PRIVILEGE. The privilege given by Code Civ. Proc. 1881, subd. 4, before amendment, providing that physicians could not testify as to information acquired from the relationship, is waived in a personal injury or death action by the patient or his administrator putting other witnesses on the stand or going on the stand to testify as to the nature of the injuries.

Appeal from Superior Court, Santa Clara County; P. F. Gosbey, Judge.

Action by Jessie Moreno, as administratrix of the estate of Frederick Moreno, deceased, against the New Guadalupe Mining Company, a corporation, and Fred Porta. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Crittenden & Simmons, of San Francisco, and C. L. Witten and H. W. McComas, both

a shift boss, but who was then operating the mechanism which controlled one of the cars, undertook to let the deceased down into the mine. When the car upon which the decedent was riding had descended about 450 feet into the mine it stopped suddenly, but what actually happened then to the decedent was known to, and witnessed by, no one save himself. The circumstances attending the descent of the decedent into the mine were nar

rated by one Celaya, who was the “hoistman" regularly employed at the mine to operate the engine which controlled the car, and who was called as a witness for the plaintiff. He testified in part and to the effect that the car in which the decedent was descending, and which at the time was operated and controlled by the defendant Porta, was going down

very fast, "at a very rapid rate of speed" and I show the cause of death of the deceased is that it was stopped "instantly by the jerk" at about 40 or 50 feet from the station below, because the defendant Porta threw in the clutch which controlled the speed of the car. About 30 minutes after this sudden stop of the car in which the decedent was descending into the mine this witness hoisted the decedent to the surface. The witness said that the decedent was pale, and that upon coming to the surface the decedently drawn from such evidence the inference in the presence of the defendant Porta narrated how and why the car stopped and what happened to him at the time. Shortly thereafter the decedent went to his home, but returned the next day to his work and again descended into the mine, but remained there only a small portion of the day when he went home.

[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