# * * * * * is all right. You take that ground out for that post.' He told me that he had examined it, and it looked to him all right. He said it needed no stulls before I put up the post. When the accident happened I was drilling a hole in the corner for a post. Tranter told me to take the ground out for a post; to put a hole in there. I was drilling, and all at once I heard some kind of a motion, and at the same time the ground came down. It hit me over the head and over the back." On cross-examination he said: "A stull is a piece of timber. It is used for anything a man wants it for. To support- One end is put over against anything you want to support where the ground is weak. That is a temporary support. Some timberman did the timbering there. The miners dig out the places to put in the square sets. That was my business. I did not tell Mr. Tranter that it was dangerous. I says, “That ground looks a little suspicious, hanging up there, and a man working underneath.' I didn't have no right to take it down. It was not my business to move that out of my way before I begun working there. I could not say that it was dangerous. I could say that it looked suspicious. It looked so that the ground might come down. It didn't look loose. It didn't look solid. None of the rocks looked loose. That is pretty good ground to work in. The rule as to that ground right there is that it is good, safe ground. I had been working in that stope about a month. I had been working there long enough for a miner with my experience to get well acquainted with the material and the timbering. I told the foreman the ground looked suspicious about me, and he said he had examined it, and it was all right. I always took the foreman's word." Where the servant is intrusted with the duty of making a place which is known to be dangerous safe, or engages in a work the danger of which as he proceeds necessarily changes from time to time, and he is left free to pursue his own course and select his own appliances, he assumes the risk, unless the master has done or neglected to do something that his duty to his servant reasonably requires, which unnecessarily increases the natural hazard of such changes. In the case at bar the plaintiff was not intrusted with the duty of making the place safe. The prosecution of the work which he was ordered to perform was not such as naturally changed the danger of the place. Therefore the cases of Anderson v. Mining Co., 16 Utah, 41, 50 Pac. 815, Finalyson v. Milling Co., 14 C. C. A. 494, 67 Fed. 507, and the other cases cited by appellant's counsel, are not in point. Where the risk of working in a place is assumed, of course, the rule requiring the master to furnish a reasonably safe place does not apply. The assignment in question does not, therefore, cover ground different from the second one. Under a similar state of facts, as the record discloses, this court, in the case of Miller v. Mining Co., 18 Utah, 358, 55 Pac. 58, held that whether there was assumed risk was for the jury to determine. Schlacker v. Mining Co., 89 Mich. 253, 50 N. W. 839. In view of the evidence in the case at bar, and the rules of law applicable thereto, independent of the consideration of the fact that assumed risk was not specially pleaded in bar of the action, the instruction in question was properly refused. 4. The appellant also assigns as error the refusal of the court to give the following instruction: "Unless you find from the evidence that the sill referred to by the witness was decayed, and unless you further find that it was at the time of the accident broken or displaced, or in some manner, on account of its defective condition, directly caused or contributed to the accident to the plaintiff, you cannot consider in any way the decayed or defective condition of the same. You cannot arrive at a verdict by mere speculation or conjecture, but your verdict must be supported by the evidence." That which directly caused and contributed to the injury to the plaintiff was the blow which he was struck by the falling material. The cause which immediately started that material was an indirect cause, and indirectly contributed to the injury. The evidence tends to show that there were other secondary causes more remote than the indirect one mentioned, and which still more remotely contributed to the cause of the injury. Bailey, Mast. Liab. p. 419. If the decayed sill was efficient in causing, or contributing to the cause of, the plaintiff's injury, then its condition was a proper consideration for the jury, notwithstanding it may not have directly caused, or directly contributed to the cause of, the accident. The jury were instructed that they were the sole judges of the facts in the case, the credibility of the witnesses, and the weight of the evidence, and that it was their duty to determine on which side the evidence preponderated, and to find a verdict in accordance therewith. The defendant not having made a motion to strike out, the evidence relating to the decayed sill and its weight, like the other evidence in the case, was a matter to be determined by the jury. The instruction to find a verdict on the preponderance of the evidence, in effect, was the same as the second clause of the instruction under consideration, requested by the defendant and refused by the trial court. The refusal to give that instruction was not reversible error. 5. A witness for the plaintiff was asked the following question: "Now, suppose, in addition to what you have stated, that the sill above was spongy or rotten or decayed, upon which several sets rests above it, would that make it any more necessary for putting extra timbers as the mining progressed?" Another witness was asked: "What would you say was necessary to be done to make it reasonably safe for a man to work there?" The witnesses were allowed to answer these ques tions over defendant's objections. The principal objection to these questions discussed in defendant's brief is that the questions allowed the witnesses to give their conclusions, and that their statements necessarily amounted to a statement of the fact which the jury were ultimately to find; that is, whether the place was reasonably safe. It is not claimed by counsel for the defendant that the witnesses were not competent to testify as experts. In the case of Grant v. Varney, 21 Colo. 329-334, 40 Pac. 771, 773, the plaintiff sought to recover for injuries sustained by the caving of a mine, and in the decision of the case on appeal the court said: "Witnesses for the plaintiff were permitted, over defendants' objection, to state, in substance, what was the proper method of timbering a drift run in such ground as the evidence shows this one penetrated. Counsel for defendants now say that such questions permitted the witnesses to state what the jury were, as a matter of fact, to find from the evidence, and that the opinions of the witnesses were not admissible. The witnesses were not allowed to state whether or not this drift, with the timbers fifteen or sixteen feet from the breast, was safe. They spoke only as to the proper way to timber it. We think there was no error in this. These witnesses qualified as experienced miners. The questions related to matters of skill in a department of labor that requires special training, and to which only those skilled in such work were competent to give intelligent answers." In the case of Monahan v. Coal Co., 58 Mo. App. 68, 74, the court said: "Among other questions, the witness was asked 'whether it is safe for a man to work in a shaft with the buntings up twenty-five or thirty feet from the bottom of the shaft.' His answer was: 'No, sir. Q. State to the jury what is the proper way of constructing a shaft with reference to the buntings. A. To keep them down pretty low to the bottom of the shaft. Q. What is the object in keeping them down there? A. As a matter of safety, so that the bucket will not catch; so that there will not be anything knocked loose, and the dirt off the sides don't cave in.' These several questions were objected to by defendant's counsel on the ground of immateriality, etc., as calling for a mere opinion of the witness as to matter which was not proper for expert testimony. It may well be doubted if it was proper to ask this witness whether the construction of the shaft was safe. This was rather a question to be left to the jury. see no objection, however, to such testimony as tended to advise the jury as to the usual and proper construction of these shafts, the kind and extent of the timber linings used, and the purpose thereof. These are such matters as are not within the common experience of men moving in the ordinary walks of life, and such evidence will materially assist the jury, who come from all avocations." The judgment in favor of the plaintiff in that We case was affirmed. Wiggins v. Wallace, 19 Barb. 338; Cooke v. England, 27 Md. 30, 92 Am. Dec. 618; Callan v. Bull, 113 Cal. 607, 45 Pac. 1017; McGonigle v. Kane (Colo. Sup.) 38 Pac. 367. As the witnesses who were asked these questions had previously been shown to be expert miners, the questions were proper. Numerous exceptions were taken to the instructions given, but all of them are too general to be considered. The record does not disclose any reversible error. It is ordered that the judgment of the court below be affirmed, and that the appellant pay the costs. MINER, C. J., concurs in the judgment. BARTCH, J., concurs. (10 Okl. 25) ALVA STATE BANK v. RENFREW et al. (Supreme Court of Oklahoma. Feb. 8, 1900.) APPEAL-FAILURE TO FILE BRIEFS. Where the appellant in a civil action fails to file briefs as required by rule 6 of this court (43 Pac. viii.), the appeal will be dismissed. (Syllabus by the Court.) Error from district court, Woods county; before Justice John L. McAtee. Action by the Alva State Bank against Renfrew and others. Judgment for defendants, and plaintiff brings error. Dismissed. Harper S. Cunningham, Atty. Gen., for defendants in error. HAINER, J. This was an action brought by the plaintiff in error, the Alva State Bank, against the defendants in error, in the district court of Woods county, on the 27th day of February, 1896, to enjoin the collection of certain taxes assessed and levied against the said bank for the year 1895. A temporary injunction was allowed by the probate judge in the absence of the district judge, and after the issues were joined, and the cause heard by the district court, the temporary injunction granted by the probate court was dissolved, and the cause was dismissed. From this judgment the plaintiff brings the case here on appeal. It appears from the record that the cause was filed in this court August 19, 1899, and no briefs have been filed by counsel for plaintiff in error. Rule 6 of this court (43 Pac. viii.) provides as follows: "In each civil cause, counsel for plaintiff in error shall furnish a copy of his brief to counsel for defendant in error at least thirty days before the first day of court, and the counsel for defendant in error shall furnish a copy of his brief to counsel for plaintiff in error at least ten days before the first day of said term. Proof of service of the briefs must be filed with the clerk of the supreme court seven days prior to the first day of said term. In case of a failure to comply with the requirements of this rule, the court may continue or dismiss the cause, or affirm or reverse the judgment." A failure to file briefs as required by said rule, and to call the attention of the court to the errors relied upon by the appellant to reverse the judgment, must be treated by this court as an abandonment of the appeal. The motion of the appellee to dismiss for failure to file briefs is therefore sustained. MCATEE, J., having presided in the court below, not sitting; all the other justices concurring. NOTE. This cause was afterwards reinstated. For opinion on the merits, see 62 Pac. 285. (16 Colo. App. 537) DEAN v. HIPP.1 (Court of Appeals of Colorado. Nov. 11, 1901.) 1. Where, in a suit to recover money collected by defendant for plaintiff, the defense was that defendant had loaned the money without authority, but that the loan had been ratified by plaintiff, the burden of proving ratification was on defendant. 2. Where, in a suit to recover money collected by plaintiff, the defense was that defendant had loaned the money collected, without authority, but that the loan had been ratified by plaintiff, and it was shown that plaintiff had never been informed to whom defendant claimed to have made the loan, for what time, or at what interest, or on what security, and that, in reply to all inquiries, defendant stated merely that the money was loaned on some ditch stock, the defense was not established. Appeal from district court, Arapahoe county. Action by John Dean against John Hipp. From a judgment in favor of defendant, plaintiff appeals. Reversed. W. W. Dale, for appellant. Ward & Ward, for appellee. GUNTER, J. Appellant sued appellee to recover $300 collected by him as appellant's attorney, and charged to have been converted to his own use. On trial to a jury, at the conclusion of appellant's evidence a nonsuit was entered. From the judgment of dismissal consequent is this appeal. The amount sued for consisted of the proceeds of the Waterman note and the Lyon note hereinafter mentioned. 1. August, 1893, appellant, removing from Denver for residence to Pittsburg, Pa., left with appellee, for collection, the Waterman note, amounting to about $500, maturing January 3, 1894. This was collected by appellee at maturity, knowledge of its collection not being brought to appellant until about 12 months subsequent. Thereafter appellant de1 Rehearing denied December 9, 1901. manded of appellee payment of the sum so collected. This was refused, and has at no time been made. Appellee defends against liability for this sum, contending as ground therefor that he reloaned it, and did so with the consent of appellant. It is undisputed that appellee made the collection, that he has not paid it to appellant, and that, if he reloaned it, he did so without previous authority. It is not controverted that, if appellant ever consented to the reloaning assumed, it was by ratifying a previously unauthorized loan. Appellee attempted on cross-examination of appellant, and not otherwise, to establish this defense. Essential to it was proof of two facts.-a reloaning of the collected money; a ratification by appellant of the reloaning. Appellant had no information as to the alleged reloaning, except what ap pellee had told him; hence the reloaning was not, and could not be, proven by him. This failure on cross-examination of appellant was fatal to appellee's defense at that stage of the case. Further, there was a failure to establish a ratification of the assumed reloaning. The burden as to this was upon appellee. The loan, if existent, had been made some months before it was brought to the attention of appellant. It was made without his previous authority. To establish ratification, it was necessary for appellee to show that appellant, after being fully informed as to all facts material to the loan, approved it. "The general rule is perfectly well settled that a ratification of the unauthorized acts of an agent, in order to be effectual and binding on the principal, must have been made with a full knowledge of all material facts, and that ignorance, mistake, or misapprehension of any of the essential circumstances relating to the particular transaction alleged to have been ratified will absolve the principal from all liability by reason of any supposed adoption of or assent to the previously unauthorized acts of an agent." Combs v. Scott, 12 Allen, 493; Story, Ag. (9th Ed.) p. 282, note 1, p. 287. It affirmatively appears that appellant was without full knowledge of the material facts of this loan. He has never been informed to whom appellee claims to have made the loan, for what time, upon what interest, or upon what security, or its value. In reply to his inquiries, all the information he has received is the statement of the appellee that the money was loaned on some ditch stock. When appellant met appellee in Pittsburg in June, 1896, he expressly repudiated this loan, and demanded payment of his money. This he had a right to do. Appellee failed in his effort to show a ratification of the making of the loan assumed. The court nonsuited appellant as to this item, holding that appellee, upon crossexamination of appellant, had established his defense; that is, a reloaning of the Waterman money with the consent of appellant. This ruling was error. 2. In June, 1895, appellant delivered to ap pellee for collection the Lyon note, amounting to $400. This he collected, and on demand promised to pay, but has never paid to appellant. To liability on this collection appellee pleads as a defense a reloaning of the funds, a loss, and a substituted agreement in accord and satisfaction. The only attempt made to establish this defense was on crossexamination of appellant, but without success. There was no evidence of a substitut ed agreement. A nonsuit was ordered as to this item. In this the court also erred. Judgment reversed. Reversed. (8 Idaho, 37) TAYLOR et al. v. MCCORMICK et al. (Supreme Court of Idaho. Nov. 16, 1901.) APPEAL-TRANSCRIPT-PRINTING-FILING. 1. Rule 27 of the rules of this court (32 Pac. x.) must be complied with, in the preparation and printing of the transcript. 2. If papers are printed in the transcript that are not properly a part thereof, the appeal will not be dismissed for that reason, but the party inserting such papers will be required to pay the additional expense of printing the same. 3. The summons and return should be printed in the transcript only when error is assigned in regard to them. 4. Under said rule the transcript must be filed in the office of the clerk of this court within 60 days after the appeal is perfected, or some good cause shown why it was not, or on motion the appeal will be dismissed. (Syllabus by the Court.) Appeal from district court, Cassia county; C. O. Stockslager, Judge. Action by Thomas Taylor and others against R. C. McCormick and others. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal. missed. Dis Samuel H. Hays, for appellants. Hawley & Puckett, for respondents. SULLIVAN, J. This is a motion to dismiss this appeal, based on five grounds, to wit: (1) That the papers are not inserted in said transcript chronologically, as indicated by the date of the filing; (2) that the first paper in the transcript does not state the title of the court and cause in the court below; (3) that each 10 lines of the transcript are not numbered as provided by rules of this court; (4) that the summons and return thereto are inserted in the transcript contrary to said rules; and (5) that the transcript was not filed in this court within 60 days after the appeal was perfected. After a careful examination of the transcript, we find that the papers composing the transcript are not inserted therein in chronological order, as provided by paragraph 3 of rule 27 of the rules of this court (32 Pac. x.); neither does the first paper in said transcript state the title of the court and cause in the court below, as provided by said paragraph 3; and each 10 lines of said transcript are not numbered in accordance with the provi sions of said paragraph; and, although the transcript fails to comply with said rule in said three particulars, we are not inclined to dismiss this appeal on said grounds, as said violations are not of a character to obstruct the examination of this record. The fourth point raised by said motion is not sufficient to warrant a dismissal of the appeal, as in some cases the summons becomes a part of the judgment roll, and for that reason may be inserted in the transcript, when all of the defendants were served, and some of them failed to appear. It is also proper to insert the summons in the transcript when some error is assigned in regard to it or its service. It is suggested by counsel that all of the defendants served with. summons did not appear and answer, and for that reason the summons and return are properly a part of the transcript, as they in that case become a part of the judgment roll. However, the insertion of a summons in a transcript, when it is not necessarily a part of it, is not ground for dismissal of the appeal, but the cost of printing the same will be adjudged to the party who unnecessarily made it a part of the transcript. The fifth ground of said motion is that the transcript was not filed in the office of the clerk of this court within 60 days after the appeal was perfected. This appeal was perfected on the 23d day of March, 1901, and the transcript was not filed until the 27th day of May, 1901. Thus it was 65 days from the date the appeal was perfected to the date of filing the transcript. It has been made to appear to the court that the transcript was received by the clerk of this court on the 27th day of April, 1901, unaccompanied by the filing fee. The clerk on the 29th day of April notified counsel for appellants at Ogden, state of Utah, that the transcript had been received, and that the filing fee must be paid if he desired the transcript filed, and received no reply. On May 24th the clerk again notified said counsel that the filing fee had not been received, and received an answer from said counsel stating that no one was to blame but his client, as he had written him on several occasions to remit said filing fee. Thereafter, on the 27th day of May, 1901, the clerk received said fee, and filed the transcript on that day. On August 1, 1901, the clerk received the affidavit of said appellant, in which it is stated that the reason of the delay in sending said filing fee was caused by his attorney not notifying afliant in time, and sent the notice to him at Salt Lake City, instead of Bridge, Idaho. We conclude from the foregoing that no good reason is shown for the delay in having the transcript filed in time. The rules of the court must be complied with in filing the transcript, or some valid reason shown for noncompliance. On the argument of the motion it was suggested that the court below did not have jurisdiction of this suit at the time this appeal was taken, for the reason that the remittitur on the former appeal had not been sent down. As the appeal must be dismissed, it is not necessary for us to decide that point. The appeal is dismissed, with costs in faor of respondents. QUARLES, C. J., and STOCKSLAGER, J., concur. (8 Idaho, 36) BAKER v. OREGON R. & NAV. CO. (Supreme Court of Idaho. Oct. 23, 1901.) APPEAL-BOND-SUFFICIENCY, On appeal from a judgment and an order denying a new trial, where only one undertaking is given, reciting both appeals, and undertaking that appellant pay all damages and costs awarded against him "on the appeal," the appeal will be dismissed for uncertainty in undertaking. Appeal from district court, Shoshone county; A. E. Mayhew, Judge. Action by D. L. Baker against the Oregon Railroad & Navigation Company. Judgment for plaintiff. From the judgment and an order denying a new trial, defendant appeals. Dismissed without prejudice. Lester L. Wilson and James E. Babb, for appellant. A. G. Kerns and S. L. McFarland, for respondent. PER CURIAM. The respondent moves to dismiss the appeal from the judgment and the appeal from the order denying the motion for a new trial, on the ground that no appeal bond was given on either appeal as required by law. The record shows that only one undertaking upon appeal was giv. en, and this undertaking recites both appeals, and then undertakes that the appellant will pay "all damages and costs which may be awarded against the appellant on the appeal"; and this undertaking is vold for uncertainty, as heretofore held by this court in numerous decisions. Appellant, recognizing the sufficiency of the grounds for re spondent's motion to dismiss, requests that the appeal be dismissed without prejudice, and that appellant be given leave to withdraw his transcript upon appeal. Wherefore it is ordered that the said appeal be, and hereby is, dismissed, without prejudice to appellant's rights, and that appellant be permitted to withdraw his printed transcript. The appellant to pay all costs of appeal. (8 Idaho, 53) In re LEVY. (Supreme Court of Idaho. Nov. 21, 1901.) HABEAS CORPUS-CRIMINAL EXAMINATIONCOMMITMENT-DISCRETION OF COMMITTING MAGISTRATE. An application for a writ of habeas corpus upon the ground that the petitioner has been "committed on a criminal charge without reasonable or probable cause," and is restrain ed of his liberty under such commitment, should be denied, where it is not shown that the committing magistrate has abused the discretion which the law vests in him; the depositions taken at the examination showing that a crime has been committed, and that it is reasonably probable that the petitioner committed such crime. (Syllabus by the Court.) Application of George Levy for a writ of habeas corpus Denied. A. A. Fraser, for petitioner. QUARLES, C. J. The petitioner applies to this court for a writ of habeas corpus. In the petition it is shown that the application is made to this court in the first instance for the reason that the judge of the Third judicial district is absent from this, the county of Ada,-the county where the petitioner alleges that he is unlawfully restrained of his liberty, and that the said district judge will be absent from said county for an indefinite period. It appears from the petition that the petitioner was arrested, upon a warrant that issued out of the probate court in and for Ada county, upon a criminal complaint charging him with the crime of murder committed in Ada county upon the person of one Davis Levy; that he had a preliminary examination before the probate judge, who, as committing magistrate, made an order holding the petitioner to answer to the district court in and for said county upon said charge. This application is based upon the ground provided in subsection 7 of section 8354, Rev. St., which subsection is in words as follows: "Where a party has been committed on a criminal charge without reasonable or probable cause." This statute authorizes the issuance of the writ, and dis charge of the prisoner thereunder, when the commitment is "without reasonable or prob able cause," notwithstanding that the pro ceedings and commitment may be regular upon their face. Annexed to the petition as a part thereof is a transcript of all of the depositions taken at the examination. We have carefully examined all of the depositions, and, under the showing therein made, we are not authorized to hold that the de fendant was committed, "without reasonable or probable cause." There is no question but what a crime was committed. The probability of the petitioner being guilty thereof sufflciently appears in the depositions to warrant the committing magistrate to hold the petitioner to answer the said charge. The law very properly vests in the committing magistrate a discretion in criminal examinations, and this discretion should not be disturbed except in case of a clear abuse thereof. No such abuse of that discretion is shown here as will warrant this court in granting the discharge of the petitioner, for which reason the application for the writ should be denied. Under section 8343, Rev. St., the writ should not issue unless it appear from the petition that the writ ought to issue. |