4. That no part of said sum so advanced has been repaid, and the whole thereof remains due and payable from the defendant to the plaintiff. [Concluding part.] § 368.-ANSWERS. FORM No. 866-Defense based upon failure of plaintiff to give notice prescribed by statute as condition precedent to action. (In Mathieson v. St. Louis etc. R. Co., 219 Mo. 542; 118 S. W. 9.) [Title of court and cause.] [After the defendant set out a general denial and plea of contributory negligence, and a plea of assumption of risk, the defense based upon failure to give the statutory notice was alleged as follows:] 4. For a fourth and further answer and defense to said amended petition, defendant avers that plaintiff has stated in said petition that he was working for defendant in and about its yards and connections in Wyandotte County, Kansas, and that at the time he was injured he was working in said Wyandotte County, Kansas, and the accident of which plaintiff complains in his petition happened in said county, state of Kansas; and defendant further avers that the law of the state of Kansas set up in said amended petition was amended on March 4, 1903, by the legislature of the state of Kansas, and, as amended, and as in force at the time of said accident, is as follows: [Here follows a copy of the statute as amended, for the wording of which see paragraph 1, annotations to this chapter.] Defendant further avers that plaintiff has failed to comply with said law of the state of Kansas, in that he failed to give to defendant within ninety days after the occurrence of said accident any notice of the injury sustained by him, or any notice stating the time and place thereof, or the time or place thereof, and that by reason of plaintiff's said failure to give said or any notice as provided by said statute, plaintiff can not recover herein. [Concluding part.] W. F. Evans, I. P. Dana, W. J. Orr, Attorneys for plaintiff. FORM No. 867—Denial, and defense of contutory negligence and assumed risk. [Title of court and cause.] Now comes the defendant in the above-entitled action and answers the complaint of plaintiff on file herein as follows: 1. Defendant denies each and every allegation in said complaint contained. [If the complaint be verified, or if required by statute, make denials specific.] [Defense of contributory negligence and assumed risk.] For a further and separate defense, defendant alleges: 1. That plaintiff's duties in working in or upon [here describe the work in which defendant was engaged under the direction of plaintiff] did not require him to go to the place or to come in contact with the machinery [or apparatus, etc., causing the injury], and therefore the injury alleged to have been suffered by plaintiff in his complaint herein was consequent upon, and due to plaintiff's own carelessness and negligence, and not to that of the defendant. 2. That the said machinery [or other apparatus, describing it] was in plain view of the plaintiff when he entered defendant's service, and so remained during all the time of his employment, and, with full notice and knowledge of its construction, condition, and operation, defendant voluntarily entered upon the work which he was employed to do, and continued therein until the time of his accident without objection or complaint, and thereby waived the duty of defendant to otherwise safeguard said machinery [or other apparatus, etc.], and defendant assumed all risk incident thereto. Wherefore, defendant prays that plaintiff take nothing by his action herein, and that defendant be given judgment for his costs. C. D., Attorney for defendant. [Verification.] For annotations as to the defense of contributory negligence generally, see ch. CXI, paragraphs 20 to 30. FORM No. 868-Defenses-(1) contributory negligence of plaintiff, and (2) negligence of fellow-servant of plaintiff. (Cragg v. Los Angeles Trust Co., 154 Cal. 663; 98 Pac. 1063.) [Title of court and cause.] Comes now the defendant, and for answer to plaintiff's complaint: 1-3. [After specific denials of the averments of the complaint, the following defenses are set out:] [Defense of contributory negligence.] 4. And for a second and further defense to plaintiff's alleged cause of action, defendant alleges that the alleged injury and damage to plaintiff was proximately caused by his own negligence and want of care. [Defense of negligence of fellow-servant of plaintiff.] 5. And for a third and further defense to plaintiff's alleged cause of action, defendant alleges that the accident referred to in plaintiff's complaint, and the injury and damage to the plaintiff alleged to have resulted therefrom, were caused by the negligence and want of care of a fellow-servant of plaintiff, who at the time of the happening of said accident was engaged with the plaintiff in the same general business of this defendant, and without any fault or negligence on the part of this defendant. Wherefore, the defendant prays that plaintiff take nothing by this action, and that defendant recover its costs and disbursements. Hunsaker & Britt, [Verification.] Attorneys for defendant. Form of complaint in an action for damages for injuries caused by the negligence of employer: Trihay v. Brooklyn Lead Min. Co., 4 Utah 468, 482, 11 Pac. 612, 618, 15 Morr. Min. Rep. 535. Form of complaint in an action by a day laborer, against his employer, a railroad company, for damages for breach of contract, and negligence, in that defendant failed to supply him with good and suitable board and lodging: Clifford v. Denver S. P. & P. R. Co., 9 Colo. 333, 12 Pac. 219. Form of petition in an action by a brakeman against a railroad company for personal injuries received in stepping from a car for the purpose of turning a switch: Kansas City etc. R. Co. v. Kier, 41 Kan. 661, 21 Pac. 770, 771, 13 Am. St. Rep. 311. Form of petition in an action for damages for a personal injury caused by the alleged negligence of plaintiff's co-employees: Union Pacific R. Co. v. Harris, 33 Kan. 416, 6 Pac. 571. Form of petition in an action for damages for personal injuries received by plaintiff on account of the alleged negligence of defendant in providing for her use, as an employee, defective and dangerous machinery: Hoepper v. Southern Hotel Co., 142 Mo. 378, 44 S. W. 257. Form of petition in an action to recover damages for personal injuries alleged to have been received by the plaintiff while in the employ of the defendant: Atchison etc. R. Co. v. Ledbetter, 34 Kan. 326, 8 Pac. 411. Form of petition in an action by a brakeman against a railway company to recover damages for injuries received while in the performance of his duties, through the negligence of the company's inspector: Missouri Pacific R. Co. v. Dwyer, 36 Kan. 58, 59, 12 Pac. 352, 353. Form of petition in an action for personal injuries caused by the alleged negligence of the defendant in providing an unsafe hand car: Solomon R. Co. v. Jones, 34 Kan. 443, 455, 8 Pac. 730, 732. Form of petition in an action for damages for personal injuries resulting from the negligence of the defendant in not furnishing safe tools: Atchison etc. R. Co. v. Sadler, 38 Kan. 128, 129, 16 Pac. 46, 5 Am. St. Rep. 729. Form of petition in an action for damages for personal injuries received by plaintiff while engaged in the capacity of a workman and employee of the defendant in the sinking of a shaft: Morbach v. Home Mining Co., 53 Kan. 731, 732, 37 Pac. 122, 123. Form of petition in an action for damages for the alleged wilful negligence and misconduct of the defendants towards the plaintiff's minor child while she was in the service of the defendants: Larson v. Berquist, 34 Kan. 334, 335, 8 Pac. 407, 55 Am. Rep. 249. For the substance of averments charging the defendant with negligence in the operation of an elevator, the plaintiff having suffered personal injuries while in the employ of the defendants, held sufficient to admit of proof of negligence of the defendant, although the petition might have been more skilfully drawn, see Modlin v. Jones & Co., 84 Neb. 551, 121 N. W. 984, 987. For a form of complaint in an action for personal injuries caused by the alleged negligent operation of a railroad in a logging-camp, held sufficient as against a general demurrer, notwithstanding its deficiency in logical order and technical language, and notwithstanding its somewhat vague statements, see Vukelis v. Virginia L. Co., 107 Minn. 68, 119 N. W. 509. Form of instructions to jury in an action for damages for injuries caused by the explosion of an engine: Mulligan v. Montana Union R. Co., 19 Mont. 135, 47 Pac. 795, 797. § 369. ANNOTATIONS.-Employers' liability cases, and actions against employees. 1. Notice as condition precedent.-Kansas statute. 2. Complaint in action for negligence held sufficient. 3. Insufficient showing of negligence. 4, 5. Defense of assumption of risk.-Distinguished from contributory negli gence. 6. Risk, when deemed assumed. 7. Burden of proof as to assumed risk. 8. Instruction based upon assumed risk. 9, 10. Negligence of fellow-servant. 11. Liability of servant to master for acts of servant's minor children. 1. Notice as condition precedent.Kansas statute.-The giving of a notice, where required by statute as a condition precedent to the commencement of an action for negligence, etc., is one of the essential elements of the plaintiff's case. Without that allegation the petition is fatally defective, and does not state facts sufficient to constitute a cause of action: Mathieson v. St. Louis etc. R. Co., 219 Mo. 542, 118 S. W. 9, 10, citing the Kansas statute, the same being that upon which this action was based, as amended on March 4, 1903, and which reads as follows: "Every railroad company organized or doing business in this state shall be liable for all damages done to any employee of said company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employees, to any person sustaining such damage; provided, that notice in writing of the injury so sustained, stating the time and place thereof, shall have been by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident." 2. A complaint in an action for damages for personal injury received by plaintiff while in defendant's employ as a teamster held sufficient as against a general demurrer thereto, there being no criticism in these particulars, although the same was uncertain and indefinite in some of its allegations, and held, also, a judgment for defendant, on sustaining the demurrer, was erroneous. The following is, in brief, a statement of the facts alleged: The defendant corporation owns and conducts a foundry and machine-shop in the city of Butte. The plaintiff was at the time he was injured in its employ, as a teamster, and in this capacity his office was to haul from place to place about the premises heavy machinery and castings whenever in the course of defendant's operations it became necessary. On August 1, 1904, he was directed to move from the foundry to the machine-shop an iron casting weighing about 1,500 pounds. Having loaded it upon his wagon and hauled it to the place designated in the machineshop, he was engaged in unloading and lowering it to the floor. To enable him to do this, he was furnished with an appliance consisting of a crane, blocks, and a chain. The process of unloading was intended to be accomplished by first lifting the casting from the wagon by means of the appliance mentioned, and holding it suspended from the chain until the wagon was removed, and then lowering the casting to the floor. The unloading had been accomplished up to the point when it became necessary to lower the casting. It was then suspended about five feet from the floor. To effect this it was necessary that the appliance be loosened, presumably so that the chain would run through the blocks, and thus allow the casting to descend gradually, under plaintiff's control. While the plaintiff was in the act of adjusting the appliance in order to lower the casting, it became necessary for him to take hold of it for that purpose. The chain, blocks, and the casting fell upon his right leg, so crushing and mangling it that amputation became necessary. [The negligence with which defendant is charged is alleged as follows:] That said chain so around said casting, and which was so furnished to this plaintiff for such use was wholly insufficient and unsafe in this, to wit, that the same was not of sufficient size to hold or bear the weight of said casting, and by reason thereof it was not of such strength as was required for such casting, and was too weak to hold the same, all of which was well known to said defendant, and of which this plaintiff was ignorant. Plaintiff further alleges that defendant was guilty of gross negligence in not furnishing plaintiff a sound, safe, and substantial chain with which to handle said casting, and that but for the gross carelessness and negligence of defendant in this regard plaintiff would not have received said injury. Plaintiff further alleges that said appliance, consisting of crane, blocks, and chain, were the property of defendant, and were furnished for use by defendant, and that plaintiff used the same under the direction and orders of defendant. [It was then alleged that, by reason of the injury thus suffered, the plaintiff was permanently disabled, that he suffered great mental and physical pain and anguish, and that he was put to expense for medical treatment, etc.]: Schroder v. Montana Iron Works, 38 Mont. 474, 100 Pac. 619, 620. 3. Insufficient showing of negligence.A complaint in an action brought to recover personal damages suffered by the plaintiff while in the employment of the defendants, and alleged to have been caused by their negligence in numerous particulars specified, which contains no |