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not, under the act under which this suit was brought, be good defenses; the former, if existing, only affecting the amount of recovery.?

[3] The interstate character of Hood's service is by the agreement admitted; but, since such admission of matter of law may not be conclusive of the court's duty to inquire into its jurisdiction, it may be said the facts bring the case within the act without any doubt.3

[4, 5] Apparently the agreement of the parties eliminates all of those subjects from the case; but the questions of assumption of risk and inspection and warning are so involved in the determination of the responsibility of defendant under the circumstances of the case that it will be assumed to be necessary to give some consideration to these subjects as reflecting upon the broader and the ultimate question immediately involved in the charge of the existence of a duty by defendant to exercise reasonable care to provide for its employés a safe place in which to work. That there is ordinarily such a duty, primary and nondelegable, is established, and the care may not be relaxed, for its exercise is a continuing duty whenever the circumstances demand it.5 Such circumstances include properly constructed roadbed, structures, and track used in the operation of a railroad.

[6] The Supreme Court have held a railroad company liable for the death of its locomotive engineer, whose engine was thrown from the track because of an accumulation of sand and gravel deposited thereon in a curve, and for the death of a train hand whose duty called him to the top of a high freight car, from which he was knocked by an iron spout projecting from a water tank.? In each of these cases the employé, of course, assumed the risks attending his hazardous employment as far as they involved defects incident thereto, but did not assume risks caused by his employer's negligence. The Supreme Court says:

“The master is not to be held as guaranteeing or warranting absolute safety under all circumstances, but it is bound to exercise the care which the exigen

2 Second Employers' Liability Cases. 223 U. S. 49, 50, 32 Sup. Ct. 169, 56 L.. Ed. 327, 38 L. R. A. (N. S.) 44; Seaboard Air Line v. Tilghman, 237 U. S. 499, 500, 35 Sup. Ct. 653, 59 L. Ed. 1069; Illinois Central R. R. Co. v. Skaggs, 240 U. S. 66, 70, 36 Sup. Ct. 249, 60 L. Ed. 528.

3 Pedersen v. Railroad, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153.

4 Balti. & Pot. R. R. Co. v. Mackey, 157 U. S. 72, 87, 15 Sup. Ct. 491, 39 L. Ed. 624; Union Pac. R. R. Co. v. O'Brien, 161 U. S. 451, 16 Sup. Ct. 618, 40 L. Ed. 760; Choctaw, etc., R. R. Co. v, McDade, 191 U. S. 64, 24 Sup. Ct. 24, 18 L. Ed. 96 ; Kreigh v. Westinghouse, 214 U, S. 249, 255, 256, 29 Sup. Ct. 619, 53 L. Ed. 981.

5 Santa Fé & Pac. R. R. Co. v. Holmes, 202 U. S. 438, 442, 26 Sup. Ct. 676, 50 L. Ed. 1094; Kreigh v. Westinghouse, 214 U. S. 249, 256, 29 Sup. Ct. 619, 53 L. Ed. 984.

o Union Pac. R. R. Co. v. O'I 161 U. S. 451, 457, 16 Sup. Ct. 618, 40 J.. Ed. 766 ; Choctaw, etc., R. R. Co. v. McDade, 191 U. S. 61, 67, 24 Sup. Ct. 24, 48 L. Ed. 96.

? Union Pacific R. R. Co. v. O'Brien, 161 U. S. 451, 457, 16 Sup. Ct. 618, 40 L. Ed. 766; Choctaw, etc., Ry. Co. v. McDade, 191 U. S. 64, 67, 24 Sup. Ct. 24, 48 L. Ed. 96.

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cy reasonably demands in furnishing proper roadbed, track, and other structures.

The duty arises by implication from the contract of the employer, who agrees that in the place where the employé is to work there is no other danger than is obvious and necessary. The employé has the right to act upon the assumption that proper care has been exercised with respect to the place of work and to suitable appliances for it, and does not assume any negligence in those respects attributable to his employer until he becomes aware of it, or it is so plainly observable that he may be presumed to know of it; and it must appear not only that he had, or is presumed to have had, knowledge, but that he knew his danger and ought to have appreciated it, and consciously assumed it.11 The employé may assume that proper care has been exercised in establishing a reasonably safe system or method of work, and "Even if plaintiff knew and assumed the risks of an inherently dangerous method of doing the work, he did not assume the increased risk attributable not to the method but to negligence in pursuing it.” 12 The employé may assume, in the absence of notice to the contrary, that his employer will use reasonable care in furnishing appliances necessary in carrying on the business.13 The risks inherent in dangerous work, and which the employé assumes, are those which arise after the employer has used reasonable diligence to make the work place reasonably safe.14 He assumes the danger which inheres in the thing itself "which is a matter of necessity, and cannot be obviated"; 15 and the rule of assumption of risk presupposes that the employer has performed the duty of caution, care and vigilance which the law casts upon him.16

[7] Hood's duty was, with others, to cut through the fill, including the work under the track over which, to his knowledge, trains passed periodically. He had nothing to do with raising the track or laying the stringers. He had little experience in work of this kind. Assum

8 Union Pacific R. R. Co. v. O'Brien, 161 U. S. 451, 457, 16 Sup. Ct. 618, 40 L. Ed. 766.

9 B. & O. R. R. Co. v. Baugh, 149 U. S. 368, 386, 13 Sup. Ct. 914, 37 L. Ed. 772.

10 Gila Valley, etc., Ry. Co. v. Hall, 232 U S. 94, 102, 34 Sup. Ct. 229, 58 L. Ed. 521: Railway Co. v. Proffitt, 241 U, S. 462, 468, 36 Sup. Ct. 620, 60 L Ed. 1102.

11 Railroad Co. v. Hall, 232 U. S. 94, 34 Sup. Ct. 229, 58 L, Ed. 521; Railroari Co. r. Wright, 207 Fed. 281, 125 C. C. A. 25 (C. C. A. 6); Copper Co. v. Gaddy, 207 Fed. 297, 125 C. C. A. 41 (C. C. A. 6); Paper Co. v. Hamel, 207 Fed. 300, 125 C. C. A. 44 (C. C. A. 6).

12 C. & 0. Ry. Co. v. Proffitt, 241 U. S. 462, 468, 469, 36 Sup. Ct. 620, 60 L. Ed. 1102.

13 Kreigh v. Westinghouse, 214 U, S. 249, 255, 256, 29 Sup. Ct. 619, 53 L. Ed. 984.

1+ Griffin y Brick Co., 84 Kan. 347, 349, 114 Pac. 217, 40 L. R. A. (N. S.) 1088; La Salle v. Kostka, 190 Ill. 130, 135, 60 N. E. 72; Noyes v. Snrith, 28 Vt. *59, *64, 65 Am. Dec. 222.

15 B. & O. R. R. Co. v. Baugh, 149 U. S. 368, 386, 13 Sup. Ct. 914, 37 L. Ed. 772. 16 Pantzar v. Iron Min. Co., 99 N. Y. 368, 370, 2 N. E. 24.

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ing he had theretofore done much ditch digging, he could not for that reason be presumed to know whether the stringers were laid properly, or whether the shoring actually done was sufficient. His danger lay, not only in the work he was doing and by what he was doing, but was increased by the loosening of the fill caused by trains running over stringers laid as these were, and by the abortive attempt of defendant to shore up as the work proceeded.

The defendant knew the materials of which the fill was composed and the effect of running heavy trains on the track over the stringers laid as these were. It knew the danger to Hood was gradually increasing through its operations as the cut deepened. Reasonable prudence would have suggested steps to hold up the fill, not only for the safe operation of the trains, but also to lessen the danger to Hood. The shoring done indicated an appreciation on the part of defendant that the circumstances called on it for action, and we have no doubt that a reasonably prudent man would have shored up the cut where the need was greatest.

[8] But it is said the danger was obvious, and Hood knew it, or may be presumed to have known it; that the supervisor inspected the work three-quarters of an hour before the accident happened, and that Hood was warned of the danger. The evidence of inspection is meager There was no inspection of the face of the cut at all. There is some evidence that the men were told to look out for falling dirt, but the warning given was chiefly to get out of the way when trains were passing, lest blocks, brake beams, etc., might fall. The employer's duty requires information to his employé of all perils which should be reasonably known to the employer, and of any change which introduces a new element of danger.17 The stability of the roadbed was constantly changing by the operations of the defendant and the method by which the operations were carried on.

Knowledge and appreciation by Hood, or adequate inspection and sufficient warning, would have excused the defendant; but these were facts necessarily submitted to the jury, which they could determine one way or the other from the testimony. The determination of these facts were peculiarly within their province, 18 and by their verdict they must have decided them against the defendant. On such matters their verdict is conclusive.19

[9] To escape responsibility, defendant invokes the rule, and cites many cases more or less pertinent,29 that when the employment itself

17 McCalman v. Railroad Co., 215 Fed. 465, 469, 132 C. C. A. 15 (C. C. A. 6).

18 Railroad Co. v. Ponn, 191 Fed. 682, 690, 112 C. C. A, 228 (C. C. A. 6); Coan v. Marlborough, 164 Mass. 206, 41 N. E. 238; Laporte v. Cook, 21 R. I. 158, 42 Atl. 519.

19 Sterling Paper Co. v. Hamel, 207 Fed. 300, 303, 125 C. C. A. 44 (C. C. A. 6); National Fire Proofing Co. v. Andrews, 158 Fed. 294, 296, 85 C. C. a. 526 (C. C. A. 6).

20 Railway Co. v. Jackson, 65 Fed. 48, 12 C. C. A, 507; Finlayson v. Mining Co., 67 Fed, 507; Railway Co. v. Brown, 73 Fed. 971, 20 C. C. A. 147; Hauss v. Lake Erie & W. R. Co., 105 Fed. 733, 46 C. C. A. 94; Fortin v. Manville Co. (C. C.) 128 Fed. 612; Omaha Packing Co. v. Sanduski, 155 Fed. 897, S4 C. C. A. 89, 19 L. R. A. (N. S.) 355; Dasher v. Mining Co., 212 Fed. 628, 129

is to make a dangerous place safe, or when, as is claimed here, the place is constantly changing because of the work the employé is employed to do and is doing, and he is by it making his own place in which to work, the employer is relieved from his otherwise duty of furnishing the safe place. This rule, called an exception to the general rule, has been stated by Judge Knappen, speaking for this court, and the reason for it given:

**That it would be impracticable, if not impossible, for a master in such case to look out for the safety of the employé while operations of the nature stated are being carried on." 21

The exception has no application to the facts in this case, and the many cases dealing with the exception are easily distinguished from this. They need no discussion, because, for one reason at least, this accident did not happen because of any change made by Hood himself by the work he was doing when injured. But, aside from that, and assuming that the fall was partly caused by what Hood' was doing at the time, yet it was also caused by what the defendant was doing and failed to do while co-operating in the entire enterprise of passing trains over the cut while the excavation was going on—in introducing new elements of danger not obvious to Hood or known to him, while known to the defendant, and of negligently performing that part of the entire work involved in the system adopted of running trains over the cut while it was being made. The safety of this work depended, not only upon the due performance of it by Hood and his fellows, 22 but also upon the work defendant was doing and the way it was being done. In cases in which the negligence of the employer in failing to provide and maintain a safe place contributes to the injury to the employé, the employer is liable, even when fellow employés are concurrently negligent.23 The Supreme Court have said that, if the negligence of the company "contributed to, that is to say, had a share in producing, the injury, the company was liable.” 24

The act itself 25 gives a right of action for death "resulting in whole or in part from the negligence of the

agents" of the carrier, or by reason of any defect or insufficiency, due to its negligence, in its appliances,

track, roadbed, other equipment.”

*

or

C. C. A. 164 (C. C. A. 6); Brown v. Railway Co., 101 Tenn. 252, 47 S. W. 415, 70 Am. St. Rep. 666; Heald v. Wallace, 109 Tenn. 346, 71 S. W. 80; Strepanski v. Grand Rapids Plaster Co, 162 Mich. 696, 127 N. W. 706; Citrone v. O'Rourke, etc., Co., 188 N. Y. 339, 80 N. E. 1092, 19 L. R. A. (N. S.) 340; 1 Bailey on Personal Injuries, $$ 80, 81.

21 Dasher v. Hocking Mining Co., 212 Fed. 628, 632, 129 C. C. A, 164 (C. C. A. 6).

22 Arntour v. Habn, 111 U. S. 313, 318, 4 Sup. Ct. 433, 28 L. Ed. 440.

23 Deserant v. Railroad Co., 178 U. S. 409, 420, 20 Sup. Ct. 967, 44 L, Ed. 1127; Kreigh v. Westinghouse, 214 U. S. 249, 257, 29 Sup. Ct. 619, 53 L Ed. 984.

24 Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700, 702, 1 Sup. Ct. 493, 27 L Ed. 266.

25 35 Stat. at L. '65, 66, § 2.

The discussion need not be carried further. It is plain enough that the trial court was right in saying that this was not the ordinary ditch case, in which the employé makes his own place to work as he excavates,24 and correctly charged the jury that there was a duty on the defendant to use ordinary care in protecting its employés.

The jury having found, on facts amply justifying their conclusion, that the defendant failed to discharge that duty, and the recovery finally awarded not being too large under the applicable facts, the judgment below will be affirmed, at the costs of plaintiff in error.

ELDER et al. v. UNITED STATES.*

(Circuit Court of Appeals, Ninth Circuit.

June 16, 1917)

No. 2816.

1. CRIMINAL LAW C1160_REVIEW-QUESTIONS OF FACT-APPROVAL OF VER

DICT BY TRIAL COURT.

Where, on a trial for conspiracy to use the mails in furtherance of a scheme to defraud, there was a great deal of substantial evidence to sustain the allegations of the indictment, and the trial court declined to grant a new trial for insutficiency of the evidence to sustain a verdict, the Circuit Court of Appeals could not disturb the conclusion of the jury as to the existence of the facts or the inferences to be drawn therefrom,

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. $ 3084.] 2. INDICTMENT AND INFORMATION 137(3)—GROUNDS FOR QUASHING-MIS

CONDUCT OF GRAND JUROR.

It was no ground for quashing an indictment for using the mails in furtherance of a scheme to defraud, in connection with the sale of stocks and bonds of an investment company, that the matter was brought to the attention of the grand jury by one of its members, who, as a practicing attorney, had represented a client holding some of the obligations of the investment company, where, after calling the matter to the attention of the grand jury, he withdrew and did not attend the sessions of such grand jury while the investigation of the matter was in progress, and did not hear any of the evidence, and took no part in the consideration or discussion of the matter.

(Ed. Note.-For other cases, see Indictment and Information, Cent. Dig.

$$ 482, 484.] 3. CRIMINAL LAW Cw927(1)-NEW TRIAL-MISCONDUCT OF JUROR.

It was not error to deny a new trial on the ground that one of the jurors, notwithstanding an order that the jury should not be allowed to separate, left the other jurors, and went to his office over the protest of the bailiff in charge, and was absent about 20 minutes, where no circumstance was shown to justify an inference of possible injury to defendant's rights.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. $$ 2257, 2258.] In Error to the District Court of the United States for the Southern Division of the Southern District of California; Benjamin F. Bledsoe, Judge.

Chas. A. Elder and others were convicted of an offense, and they bring error. Affirmed.

26 Ritzema v. Brick Co., 152 Mich, 75, 115 N. W. 705; Hodgson v. Railroad Co., 146 Mich. 627, 109 N. W. 1125. • Rehearing denied October 8, 1917.

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