MASTER AND SERVANT-CONTINUED.
titled to had the action been commenced after the
expiration of the term.-Howay v. Going-Northrup Co.. 88
3. Negligence-Whether Master's or Fellow Servant's-
Instructions. In an action for damages caused by the
accidental discharge of a missed blast, in which it be-
came a question for the jury as to whether the "boss"
or "pusher" of a shift of workmen was a vice prin-
cipal or a co-laborer with plaintiff's intestate, an in-
struction is not erroneous when it charges the jury
that "persons working together in a common general
employment may be fellow servants with regard to that
general employment, and yet it might be under the cir-
cumstances that one of them could be a principal or
master with regard to some particular part of that em-
ployment." As an illustration, "it might be that a
shift working in a shaft would be fellow servants with
regard to driving holes, blasting, mucking out, and yet
it might be that the principal or master could have dele-
gated to one of them the duty of seeing that all the
blasts were discharged, and that there were no missed
holes left when the succeeding shift should come on to
work. So that as to that particular duty, if the prin-
cipal should have assumed that duty,
. then
the principal could have delegated that particular duty
to one of those who were engaged as a fellow servant in
the other duties mentioned," since such instruction,
taken together with others given on the same subject,
should be construed as meaning that, if the jury found
from the evidence that the pusher on each shift had
been appointed by the defendant to look for hidden or
unusual dangers not inherent in the work, and not to
be anticipated in the labor in which deceased was em-
ployed, and to report the same to those working with
and under him, then he was a vice principal, and his
negligence would be imputed to the defendant.-Shan-
non v. Consolidated Tiger & Poorman Mining Co...... 119
4. Duty to Provide Safe Place to Work. Where the men
engaged in sinking a shaft in a mine were divided into
three eight-hour shifts, and one man on each shift was
known as a "pusher," doing the same work as his fel-
lows, but having general direction of the work of his
shift, and charged by the master with the duty of noti-
MASTER AND SERVANT-CONTINUED.
fying the on-coming shift of any "missed holes" of un-
discharged dynamite, the failure of the pusher of an
out-going shift to notify the on-coming shift of the ex-
istence of a missed hole, was the negligence of the mas-
ter and not that of a fellow servant.-Id.....
5. Assumption of Risks. The rule that an employee cannot
recover for an injury received from a danger which
is naturally and necessarily incident to work he is
hired to do, and which is apparent to a reasonably
prudent man, is not applicable to a case where a miner
working on a tunnel of defendant in a narrow gulch,
some eight hundred feet below another tunnel oper-
ated by defendant, is injured by a rock thrown from
the upper tunnel, when it had not been customary to
roll them down that particular gulch, and they could
have been disposed of by throwing them down another
gulch, where no work was going on.-Uren v. Golden
Tunnel Mining Co......
6. Fellow-Servants-Separate Employment Under Common
The fact that two men were working for the
same mining company would not make them fellow
servants, when they were employed in separate tun-
nels under different superintendents, where no super-
vision of each other's work was possible and no oppor-
tunity afforded to use precautions against each other's
negligence. Id....
... 261
7. Defective Machinery-Injury to Servant-Contributory
Negligence. In an action to recover for personal inju-
ries, the refusal of the court to instruct the jury to find
for the defendant, on the ground of plaintiff's contrib-
utory negligence, was proper when the evidence
showed that plaintiff, while tending the separator of a
threshing machine had the engine stopped so that he
could remove and substitute concaves in the cylinder
of the separator and straighten the teeth on such con-
caves; that while he had his hands in the cylinder en-
gaged in such work the engine, owing to its leaky, de-
fective and worn out condition, which was unknown to
plaintiff, but of which defendant had knowledge, started
automatically after it had been stopped by the engineer,
communicating power to the separator and causing the
cylinder to revolve, whereby plaintiff's hands were so
MASTER AND SERVANT-CONTINUED.
badly lacerated that amputation was necessary; that
there would have been no opportunity for the cylinder
to be set in motion, if plaintiff had removed the pin
holding together the knuckles of two sections of a re-
volving tumbling rod, which was used to communicate
power from the engine to the separator, but it was
never customary to disconnect the separator from the
source of power in that way; that the cylinder could
have been held from turning by the insertion of an
iron bar so as to catch its teeth, but such a method
was not customary as it was necessary to slowly turn
the cylinder when examining whether its teeth and
those of the concaves interfered; and that the evi-
dence as to defendant's having instructed plaintiff to use
an iron bar for the purpose of holding the cylinder
was conflicting.-Hencke v. Babcock...
8. Safe Place to Work-Assumption of Risks. Where it
was the custom in a store building having an elevator
running from the basement to the second floor for any
of the employees, without the ringing of a bell, to move
the same at his own convenience by pulling a rope, an
employee whose business it was to make use of such
elevator must be held as having assumed the risk of his
employment, and where, while engaged on one floor in
loading the elevator, he backed into the open shaft and
fell to the basement by reason of the elevator having
been moved without warning, by another employee, he
cannot recover for his injuries.-Danuser v. M. Seller
& Co....
9. Assumption of Risk-Apparent Dangers-Contributory
Negligence. An employee, injured by the giving way of
a tie of a trestle and being precipitated into the water be-
neath, is chargeable with contributory negligence,
where defendant was engaged in repairing the trestle by
drawing new piles, laying new stringers and ties, where
necessary, and laying new rails; and, in order to drive
new piles, the ties had been cut out at intervals, a fact
which was known to all the workmen, and was a danger
that was apparent and against which the foreman had
frequently warned the workmen; and the injury to
plaintiff was the result of his having stepped upon one
of these shortened ties, while engaged in the work of
MASTER AND SERVANT-CONTINUED.
pulling and gathering the spikes which held the rails
to the ties.-Robare v. Seattle Traction Co......
1. Location of Claims-Making
Time. Under U. S. Rev. St. §§ 2320, 2324, which provide
that "no location for mining claim shall be made until
the discovery of the vein or lode within the limits of
the claim located," and that "the location must be dis-
tinctly marked on the ground so that its boundaries may
be readily traced," the locator of a mining claim is
entitled to a reasonable time in which to mark the boun-
daries of his claim after its discovery.-Union Mining
& Milling Co. v. Leitch.
2. Same. Where the locators of a mining claim posted
notices showing the direction and extent of their claim,
but did not mark the boundaries on the ground until
eight days thereafter, during which interval conflict-
ing claims were filed by other locators who were aware
of the prior location, the failure to mark the boundaries
of the claim on the ground for eight days after dis-
covery was not an unreasonable time, when the locators
were compelled by lack of provisions to go to the nearest
station where a supply could be procured, and did so, in
the belief that they had a reasonable time to complete
their location of their claim, one corner of which was
almost inaccessible, owing to the roughness of the
.. 585
1. Merger. There is no merger of a mortgage as against
subsequent incumbrances, when the mortgagor conveys
the land to the mortgagee, where it would be inequitable,
or where there is an express agreement of the parties
that the lien shall remain intact.-Fitch v. Appelgate.. 25
2. Constructive Notice-Record Index. A mortgagee of the
"Scandinavian Free Church" is not chargeable with
notice of a prior mortgage made by the same corpora-
tion, when it was executed under the name of "Scandi-
navian Congregational Church," and indexed under
that name in the mortgage records of the county.—
Congregational Church Bldg. Society v. Scandinavian
Free Church
3. Same-Existing Equities-Notice of Assignee. A bona
fide assignee of a mortgage for value, although assigned
to him after its maturity, is not chargeable with the
knowledge of his assignor as to the existence of a
prior mortgage, since the rule that the assignee of a
mortgage takes it subject to existing equities applies
to such equities only as exist between the mortgagor
and mortgagee and not to those existing between the
mortgagee and third persons.-Id... ..
4. Redemption by Mortgagor's Grantee-Effect. A redemp-
tion from foreclosure sale by a grantee of the judgment
debtor operates the same as if made by the judgment
debtor himself, to extinguish the foreclosure proceed-
ings, and the estate then stands as if no foreclosure
sale had ever been made, and thereby revives the
lien of a subsequent mortgage which would have been
barred if no redemption had been made.-De Roberts v.
Stiles
611
See CONSTITUTIONAL LAW, 5; SUBROGATION.
1. Use of Streets by Telephone Lines-Power of City to
Refuse Construction of Statute. There being no restric-
tion on the legislative control of streets and highways
contained in art. 12, § 19, of the constitution, which
declares the right of individuals and corporations to
maintain lines of telegraph and telephone within the
state, the provision in Bal. Code, § 4369, the statute
passed pursuant to such constitutional declaration,
"that where the right-of-way, as herein contemplated, is
within the corporate limits of any incorporated city, the
consent of the city council thereof shall be first ob-
tained before such telegraph or telephone line can be
erected thereon," is valid, and amounts to an authoriza-
tion to the council to refuse, as well as consent,
to such use of the streets, and is not intended as an
authorization of power merely to prescribe reasonable
and proper regulations for the construction and opera-
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