"As we read various instructions of the trial court, however, the question as to whether defendant had been negligent in the matter of the inspection of the brakes was made to turn upon the violation of this rule by Waters. The jury was told, in instruction No. 15, that if it was the duty of Waters to test the brake before making a flying switch, and he negligently omitted to so do, the negligence of Waters was the negligence of the railroad company. In instruction No. 17, it was substantially said to the jury that if the brake was defective or insufficient by reason of slack, and Waters negligently omitted to inspect said brake, and by reason of such negligence on his part the car was allowed to run on to the cripple track and collide with the car under which plaintiff was working, inflicting the injury upon him, the verdict must be for the plaintiff and against the defendant, if plaintiff himself was free from fault. Instruction 18 was as follows: 'If you believe from the evidence that Waters negligently omitted to test the brakes of the loaded car in his charge on the 16th day of December, 1901, and if you believe that it became or was his duty to test said brakes before or at the time he made a flying switch, if he made such flying switch, then, I charge, that his negligence is the negligence of the defendant corporation, and if by reason of his negligence the car in his charge collided with the car under which Fogarty was working, then your verdict must be in favor of the plaintiff and against the defendant corporation for an amount not exceeding the amount prayed for in plaintiff's complaint, if you further believe from the evidence that the plaintiff himself was free from fault. The effect of these instructions plainly was to render Waters, solely by reason of this rule, the vice principal or personal agent of the defendant for the inspection of the car, and to make the violation of the rule by him negligence on the part of the defendant. By them the jury was clearly instructed that if Waters had violated the rule, which concededly he had done, his violation thereof was negligence on the part of defendant, and if the injuries to plaintiff were caused by this violation of the rule, the verdict must be for plaintiff. We can conceive of no sound theory upon which these instructions can be upheld. Waters was not the personal representative of the defendant in this matter, and his failure to observe the rule enacted by the defendant for its own protection and the protection of Waters himself and his fellow employés was not negligence on the part of the railroad company. As we have intimated, there may have been sufficient evidence to warrant the jury in finding that the defendant had been negligent in the matter of inspecting this car, and that the accident was caused thereby; but such negligence is not shown as a matter of law, and we cannot say, in the face of these instructions, that the jury so found. They may have concluded simply that the failure of Waters to observe

the rule caused the accident, and that the only negligence on the part of defendant was this violation of the rule by Waters, for so concluding their verdict would have been warranted by the instructions. It does not assist that the trial court in two other instructions charged the jury in direct conflict with the instructions above referred to, and in terms too favorable to defendant. The conflicting statements of the court in this regard were each equally positive and plain, and no one can tell which the jury foi.owed. It follows that a reversal must be had on account of these instructions.

"One or two other matters should be discussed for the purposes of a new trial. Much of the argument of counsel has been devoted to the contention of defendant that the condition of slack in the brake was a mere matter of detail in the operation of the car, not involving any breach of original duty on the part of the employer, and the remedying of which was a part of the proper operation of the car by train hands or switching crew. By this contention, it is sought to bring the case within the doctrine of Helling v. Shindler, 145 Cal. 303, 78 Pac. 710, where the rule that the employer is not liable for defects arising in the daily use of an appliance which are not of a permanent character and do not require the help of skillful mechanics to repair, but which may easily be and usually are repaired by the workmen, and to repair which proper and suitable materials are supplied, was applied in the case of an injury to an operative on a planing machine, the knife of which had become dull and the belt slack by use therein by him and others using the machine with him. See, also, Towne v. Electric Co., 146 Cal. 766, 81 Pac. 124, 70 L. R. A. 214; Leishman v. Union Iron Works, 83 Pac. 30, 148 Cal. 274, 3 L. R. A. (N. S.) 500. It was there said that this rule is, 'at least so far as those engaged in the common use of an appliance are concerned' sustained by the great weight of authority. This rule is a qualification of the general rule relative to the duty of the employer to furnish an appliance that is reasonably safe, and to use reasonable care to keep the same in proper repair, and, as stated in Helling v. Schindler, supra, it relates only to such slight defects attendant upon the operation of machinery as from their nature require remedying at the hands of the operators themselves and as a part of the proper operation of the machine.' It was manifestly applicable to such defects as were considered in that case, under the circumstances there appearing. are unable, however, to see the application of this rule to the case at bar. The management of cars by train hands is a very different matter from the operation of a single piece of machinery that is continually under the direct management of a single employé or a single group of employés, to whom the slight defects attendant upon the daily use of the appliance, such as the dullness of knives, be

We

come at once apparent. In the case of a railroad of any considerable extent, any particular car is only very temporarily in the charge of any particular group of train hand employés, and their work in regard thereto has ordinarily to do only with its operation as a completed appliance, and consists simply in moving it as the needs of the railroad company may require. The most that can be said of the evidence relative to the duty of train hands or switching crew as regards the work of remedying such a defect as here existed was that, where the same became apparent in the course of the operation of the car, they should take up the slack. This was simply emergency work. There was nothing to indicate that it was the general duty of such operatives to keep the brakes in proper condition in this regard, and clearly such a requirement would generally be impracticable, considering the other duties and obligations of such employés. It appears to be thoroughly settled by the authorities that it is the primary and nonassignable duty of the employer to use reasonable care to discover and remedy any defect in the car as a completed appliance, and that it is responsible to any employé injured by reason of its failure to so do, except, of course, to an employé whose duty it is to discover the defect, and whose negligent failure to do so contributes to his own injury. The duty of reasonable inspection by the employer for the discovery of any defect that would render the operation of the car dangerous is 'rigidly insisted on, and we can see no reason why this requirement does not include any defect in the adjustment of the brakes which renders them wholly ineffectual, however arising, just as fully as any other defect. The employer cannot escape responsibility in this matter by any delegation of the duty. See Bailey v. Rome, etc., Co., 139 N. Y. 302, 34 N. E. 918; Eaton v. N. Y., etc., Co., 163 N. Y. 391, 57 N. E. 609, 79 Am. St. Rep. 600; Chicago, etc., Co. v. Kneirim, 152 Ill. 458, 39 N. E. 324, 43 Am. St. Rep. 259; Cincinnati, etc., Co. v. McMullen, 117 Ind. 439, 20 N. E. 287, 10 Am. St. Rep. 67; Sheedy v. Chicago, etc., Co., 55 Minn. 357, 57 N. W. 60; Bender v. St. Louis, etc., Co., 137 Mo. 240, 37 S. W. 132; Union Stock Yards Co. v. Goodwin, 57 Neb. 138, 77 N. W. 357; Galveston, etc., Co. v. Templeton, 87 Tex. 42, 26 S. W. 1066; Richmond, etc., Co. v. Burnett, 88 Va. 538, 14 S. E. 372; Texas, etc., Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188. The question as to defendant's negligence, as we look at it, in view of the evidence contained in the record, was simply this: Did defendant fail to use reasonable care, that is, such care as was under all the circumstances reasonably consistent with a due regard for the safety of its employés, in inspecting this car for the discovery and remedying of such defects as would render the car an unsafe appliance? If it did not do this, and its failure to do so contributed di

rectly to plaintiff's injuries, and plaintiff himself was not guilty of contributory negllgence, it is liable for such damages as will properly compensate plaintiff for such injuries. In determining the question of fact as to whether reasonable care was used in the matter of inspection, it is, of course, proper to take into consideration with the other circumstances the fact that the car was not then being used for transportation purposes, but was being temporarily kept for unloading in the San Luis Obispo yard of defendant, and also that there was a rule prohibiting the employés from making a flying switch with it without first testing its brakes. There was some evidence tending to show that the difficulty with this brake was of a character that such cursory test by a switchman as may properly be held to be contemplated by this rule would not disclose it. All these are circumstances which may justly be considered in arriving at a conclusion as to whether reasonable care was exercised by defendant in the matter of keeping the car in proper condition; their effect being solely for the jury. If the accident was in no degree caused by the negligence of defendant, but was wholly due to the neglect of employés in a mere matter of detail in the operation of the car, defendant cannot be held liable.

"It cannot be said that the evidence showed plaintiff guilty of contributory negligence as a matter of law. Defendant does not point out specifically wherein the instruction of the court upon this subject was erroneous. If plaintiff was negligent in the matter of not indicating his presence under the car by flags, and his negligence directly contributed to his injuries, there can, of course, be no recovery.

"Other points made by defendant will probably not arise on a new trial, and need not here be considered.

"The judgment, the modified judgment, and the orders denying a new trial are reversed, and the cause remanded.

"We concur: SHAW, J.; SLOSS, J."

Wm. F. Herrin, P. F. Dunne, and W. S. Spencer, for appellants. Sullivan & Sullivan and Theo J. Roche, for respondent.

ANGELLOTTI, J. A rehearing was granted in this case, after decision in department, principally because of the complaint of plaintiff that no reason had been assigned for the reversal as to the defendants Nelson and Waters, employés of the principal defendant and fellow servants of the plaintiff. Upon the reargument, plaintiff's counsel, while urging that the judgments and orders should be affirmed as to the railroad company, stipulated that, in the event of revers. al as to it, the judgments and orders should also be reversed as to the other defendants. We are satisfied that this course should be adopted. On further consideration, we see

no reason to modify the views expressed in the department opinion as to certain instructions given to the jury at the request of the plaintiff, and on account of which the reversal was ordered.

Learned counsel for defendant railroad company earnestly urge that the department opinion be modified in certain particulars. Much of what is said by counsel in this behalf is due we cannot but feel to a misconception of the opinion. Certainly, that opinion cannot be construed as declaring that the proximate cause of the accident was the nonadjustment of the brake. The assumption to this effect of which defendant complains was expressly limited in the opinion to the discussion of the question as to the alleged negligence of the defendant in the matter of the inspection of the brake, and the instruction given to the jury in that connection, and on account of which the reversal was ordered. It is declared, in effect, over and over again in the opinion, that the question as to the proximate cause of the accident was, in this case, one for the jury. Unless the jury can find, upon sufficient evidence, that the railroad company was negligent in the matter of the inspection of the brake, and that this negligence contributed directly to plaintiff's injury, there can, of course, be no recovery by plaintiff. If the accident was wholly due to the negligence of a fellow servant of plaintiff, or disobedience by him of a reasonable rule enacted for his guidance in the operation of the car, either as to the making of a flying switch at all, or examining the brakes before making the same, there can be no recovery, even though the defendant had itself been negligent. Kevern v. Pro., etc., Co., 70 Cal. 394, 11 Pac. 740; Vizelich v. S. P. Co., 126 Cal. 587, 59 Pac. 129; Luman v. Golden, etc., Co., 140 Cal. 707, 74 Pac. 307. The evidence in the record before us cannot be held, as a matter of law, to show what was the proximate cause, and hence the question is necessarily one for the trial jury. It should also be said, in this connection, that the showing in the record now before us, as to whether the conditions were such as to make the rule prohibiting a flying switch "except where it would cause great delay to do the work in any other manner" applicable, is extremely weak, if, indeed, there can be said to be any showing at all on the subject. It was because of this that the matter was not referred to in the former opinion. If defendant relies on a violation of this portion of the rule, it should make it appear that the work could have been otherwise done without what would have been "great delay" under the existing circumstances. Five or ten minutes might have constituted such a great delay under certain circumstances.

The question as to whether or not the condition of slack in the brake was a mere matter of detail in the operation of the car, the

discovery and remedying of which was a part of the regular operation of the car by train hands or switching crew, was discussed in the former opinion in the light of the evidence contained in the record. We are satisfied with the views expressed in the opinion in regard to that question, as applied to the case shown by such record, and see no occasion to add thereto.

The portion of the former opinion reading as follows: "If at the time when an inspection was required of the railroad company in the exercise of reasonable care, by reason of the negligent failure to inspect the brakes at all, or a negligent inspection, the defect remained undiscovered and caused injury, the defendant would be liable for injuries proximately caused thereby, notwithstanding a violation of this rule by Waters, even though had the rule been observed the defect would have been discovered"-should be stricken out, together with the words "on the other hand," immediately succeeding.

With this exception the department opinion is adopted as the opinion of the court in bank, supplemented by what we have heretofore said.

The judgment, the modified judgment, and the orders denying a new trial are reversed, and the cause remanded.

We concur: SHAW, J.; SLOSS, J.; HENSHAW, J.; LORIGAN, J.

(6 Cal. App. 103)

PEOPLE v. SOLANI. (Cr. 39.) (Court of Appeal. Third District, California. July 10, 1907.)

1. CRIMINAL LAW-FORMER JEOPARDY-PLEA -REQUISITES.

A plea of former jeopardy, failing to state where the judgment of conviction was rendered, as required by Pen. Code, § 1017, subd. 3, was fatally defective.

2. SAME TIME.

A plea of former jeopardy may be interposed at any stage of the trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 667.]

3. SAME PRIOR CONVICTION OF LESSER OFFENSE.

Where a new trial is granted after conviction of manslaughter on an information for murder, it is no violation of defendant's constitutional right to protection against being twice put in jeopardy for the same offense to again place him on trial for murder, unless he pleads former conviction.

4. SAME-HARMLESS ERROR.

A new trial having been granted defendant after conviction of manslaughter on an information charging murder, he was again plaIced on trial for murder, and the trial proceeded without any plea of former conviction until nearly all the instructions had been given, when an ineffectual plea of former conviction was offered. This was disallowed, and was not corrected until the jury had reached a verdict convicting defendant of manslaughter. Held, that defendant, having received the same sentence at both trials. was not prejudiced by the court's denial of the plea.

5. SAME - ADMISSION OF EVIDENCE - CURING ERROR.

In a prosecution for homicide, the court having withdrawn from the jury a statement alleged to have been made by defendant while in jail, and having admonished the jury to disregard the statement, any error in its admission

was cured.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3141.]

6. SAME-EXPERIMENTS.

Where, in a prosecution for homicide, the evidence was conflicting and unsatisfactory as to there being any powder marks plainly discernible around the wound on deceased's body, it was not error to refuse to permit a witness to testify with reference to experiments made at various distances with a revolver loaded with black powder, as to whether powder marks were left on pieces of white paper; the caliber of the revolver used for the experiments not being shown with certainty to be the same as that used by defendant, and there being no evidence that the cartridge used was similarly loaded.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 854.]

Appeal from Superior Court, Sonoma County; Emmett Seawell, Judge.

John Solani was convicted of manslaughter, and he appeals. Affirmed.

W. F. Cowan and Jos. P. Berry, for appellant. U. S. Webb, Atty. Gen., for the People.

He

CHIPMAN, P. J. Defendant was convicted of the crime of manslaughter upon an information charging murder. Ile appealed from the judgment of conviction to this court and a new trial was ordered 2 Cal. App. 225, 83 Pac. 281. At his second trial he was tried upon the original information. was not again arraigned, and the trial proceeded without further plea of the defendant than his original plea of "not guilty." After the cause had been argued to the jury and as the court was about concluding its instructions, counsel for defendant asked leave to interpose a plea of once in jeopardy and former acquittal, and also asked the court to instruct the jury upon the theory of once in jeopardy. The plea offered was defective, in failing to state where the julgment of conviction was rendered, as requir ed by subdivision 3, § 1017, of the Penal Code. The court declined to allow the reading of the instructions to be interrupted and stated that it would later consider the offer of defendant. At the conclusion of the reading the matter was again brought before the court. It appears that at the opening of the trial it was agreed between the district attorney and defendant's counsel that defendant would take 20 peremptory challenges "as long as this information charged murder," and that the case was tried and the instructions framed upon the theory that the charge being investigated was murder. It further appeared that to grant defendant's request would have required the instructions already given to be recast to some extent. Upon this state of facts the court denied defendaut's request.The court, thereupon, gave

the jury five forms of verdict which do not appear in the record. The instructions were full and clear as to what constitutes murder in the first and second degree and manslaughter, and it must be presumed that the forms of verdicts embraced manslaughter among other crimes of which defendant might have been found guilty or not guilty. Later, when the jury was about to return. with its verdict, but before it had been brought into the courtroom, defendant asked leave to correct his plea of jeopardy so as to state therein at what place the former judgment of conviction had been entered and that the jury "be directed to return a verdict of once in jeopardy." The court directed that the jury be brought in, without giving any further instructions. Thereupon the jury came into court and rendered its verdict of murder in the second degree. Before it was recorded defendant objected to the recording of the verdict on the ground that "the court is without jurisdiction to pronounce the judgment allowed by law, and the verdict is illegal, and the jury without legal authority to find the same." Motion was regularly made in arrest of judgment and for a new trial, which was denied, and defendant appeals from the judgment and order denying his said motion.

1. The principal question presented by the appeal arises out of the refusal of the court to permit the defendant to plead jeopardy. If, as appellant contends, the court was without jurisdiction under any circumstances to try him for the crime of murder, clearly he had the right at any stage of the trial to raise the question by any appropriate step. But in the numerous cases where there has been a new trial granted, after conviction of manslaughter upon an information for murder, thus acquitting the defendant of the crime of murder, the Supreme Court of our state has held that it is no violation of the defendant's constitutional right to protection against being placed twice in jeopardy for the same offense, unless he pleads former conviction. conviction. It was said in People v. Bennett, 114 Cal. 58, 45 Pac. 1014: "The law's method must be pursued by him who asks the protection of the law." It was also said: "The fact that the first trial was held in the same court, and before the same judge as the second trial, in no way excused the necessity of the plea of once in jeopardy." The question was discussed at some length in People v. McFarlane, 138 Cal. 481, 71 Pac. 568, 72 Pac. 48, 61 L. R. A. 245, where the opinion upon the point met the concurrence of the full court by refusing a rehearing. Nothing in People v. Smith, 134 Cal. 453, 66 Pac. 669, can be said to be in conflict with the views expressed in People v. McFarlane, which is confirmed by the fact that the writer of the opinion in the Smith Case inferentially approved the opinion in the McFarlane Case. In the recent case of Huntington v. Superior Court (Cal. App.) 90 Pac. 141, the