and iron, and weighed about 300 pounds. A pipe ran around the middle of it and under the deck, so that, when it rested on the plank, the pipe fell upon its middle, causing the whole weight of the cage to rest on that point. Some of his witnesses testified that there was no hole in the floor; that it was quite as convenient for the plaintiff to stand upon it, even if he had been compelled to stand astride of the hole; that it was safer than to go upon the deck of the cage; and, in any event, that the proper way for the plaintiff to have reached the guide rods was by standing on a board running across the shaft outside of the cage, or by standing on a scaffold made by placing a plank upon two bars on the frame of the elevator about 20 inches above the floor. The defendant denied that he had admitted at any time that he was to blame for the accident, but stated that, while he did direct the plaintiff to make the change in the elevator, he gave no directions as to how the work should be done. It is somewhat difficult to understand from the transcript of the evidence exactly what the situation was; but the foregoing seems to be a fair statement of it.

Counsel for appellant contends that this evidence did not make a case for the jury, because it conclusively appeared therefrom that the plaintiff was not directed to go upon the cage, and that of the different ways by which the work could have been done he chose the one which was obviously the most dangerous, and hence was guilty of contributory negligence as a matter of law. It seems to us, however, that in directing the plaintiff to make the change, without pointing out the mode which should be pursued, the defendant necessarily directed him to employ such mode as to him seemed most suitable, and necessarily that he should go upon the cage and use that as his means of support, if that should appear as convenient and as safe as any other mode. Taking the order in connection with the fact which the eridence tends to show, and which for present purposes we must assume to be established, that, if the plank had been sound and flawless, the deck of the cage would have furnished as safe footing as the floor or scaffold referred to by the defendant, the evidence fairly suports the allegation of the complaint on this point; and it was a question for the jury to say, upon the evidence, whether the defendant was guilty of negligence in the use of the plank for a support and in giving the general directions to the plaintiff that he did.

Mr. Thompson, in his work on Negligence, $ 5372, says: "Generally speaking, where an employé has a duty to perform, and there are two ways or methods of performing it or of reaching the place of performing it, one of which is dangerous and the other safe, or one of which is more dangerous than the other, and the employé knowingly and volun

87 P.-29

tarily, or through negligent ignorance, and without there being any emergency, selects the dangerous one or the more dangerous one, in consequence of which selection he brings upon himself an injury which probably would not have befallen him if he had selected the other one, he cannot make his own negligence in making the choice the ground of recovering damages against his employer, but contributory negligence will be imputed to him as matter of law.” It will be noticed that under the rule stated by this author negligence will be imputed to the plaintiff only when it is apparent that he acts with knowledge that the method chosen is the more dangerous, or the circumstances are such that he ought to know that it is the more dangerous. We hold the converse of the rule to be true. When the servant is directed to perform certain work without directions as to the mode or means to be employed by him, and he voluntarily selects the mode or means which is dangerous or more dangerous, rather than the one which is safe or less dangerous, but does so without knowledge of its dangerous character, and the circumstances are not such as to warrant the presumption that he ought to know, neg. ligence will not be imputed to him as a matter of law, but it will be left to the jury to determine whether or not under all the circumstances he ought to have known of the danger. In other words, in order that coultributory negligence may be attributed to him as a matter of law, it must appear that the mode employed by him is known to him to be more dangerous, or its dangerous character must be so obvious that he may be presumed to have known it ; for it seems clear that if the means of doing the work have been supplied by the master, and one of them is dangerous, the choice being left to the servant, negligence should not be imputed to him as a matter of law unless he has knowledge, actual or constructive, that one of the means is dangerous and the other safe. 1 Labatt, Master & Servant, & 333, and illustrative cases in note. We are of the opinion, then, that the contention of the defendant cannot be sustained, and that the court correctly overruled his motion for a new trial on the ground that the evidence was not sufficient to go to the jury.

The first criticism made upon the instructions is directed to paragraph 4 of the charge, in which the court laid down the rule as to where the burden of proof rests to establish negligence on the part of the defendant and contribuory negligence on the part of the plaintiff. We think the rule is correctly stated and that the defendant has no ground of complaint.

Instruction No. 8, requested by defendant, after quoting the above paragraph from Thompson on Negligence, had added to it a sentence which was deemed necessary to make it applicable to the circumstances of this case. The court modified it by inserting the word “obviously” before the word “dangerous” in the first part of the paragraph. It is said that this modification of the text was prejudicial. We do not see, however, that it materially alters the meaning of the language used by the author, because the word "obviously" only emphasizes the notion that, in order for contributory negligence to be imputed to the plaintiff as a matter of law, the danger of the means or method must have been known to him, or the circumstances must have been such that it ought to have been known to him. The sentence added by counsel was also modified to express the same idea more clearly.

We find no error in the record, and the judgment and order are affirmed.

Affirmed.

Mandamus by the state of Montana, on the relation of Pete Teague, against the board of county collissioners of Silver Bow county, Mont., W. D. Clark, and others. From a judgment of dismissal, relator appeals.

Affirmed. John F. Davies and Mackel & Meyer, for appellant. C. F. Kelley and Edwin M. Lamb, for respondents.

MILBURN and HOLLOWAY, JJ., concur.

(34 Mont. 426) STATE ex rel. TEAGUE v. BOARD OF COM’RS OF SILVER BOW

COUNTY et al. (Supreme Court of Montana. Oct. 29, 1906.) 1. EVIDENCE JUDICIAL NOTICE-TAKING TESTIMONY TO INFORM COURT.

As a general rule a court may order evidence taken to refresh its memory concerning matters of which it is required to take judicial notice, but, where a constitutional amendment is prima facie a law, testimony should not be taken to inform the court as to the regularity of its adoption.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, $ 72.] 2. CONSTITUTIONAL LAW – AMENDMENT OF CONSTITUTION-PRIMA FACIE VALID.

Where the Governor declared by a proclamation that an amendment (House Bill No. 55, Mont. Sess. Laws 1901, p. 208) to Const., art. 16, $ 4, providing for the election and tenure of county commissioners, had been adopted, the district court, as well as the Supreme Court, took judicial notice thereof, and, the amendment becoming prima facie a part of the Constitution, one who failed to plead facts showing noncompliance with Const., art. 19, § 9, providing for the manner in which the Constitution may be amended, could not attack the validity of the amendment under that section. 3. SAME-SEPARATE AMENDMENTS.

The amendment (Ilouse Bill No. 55, Mont. Sess. Laws 1901, p. 208) to Const., art. 16, $ 4, changing the term of county cominissioner's from four years to six years, extending the tenure of then incumbents, and giving district judges power to fill vacancies on the board, is not violative of Const., art. 19, § 9, providing that separate amendments must be prepared and distinguished by numbers, or otherwise, so that they may be voted upon separately. 4. OFFICERS-CONSTITUTIONAL LAW-EXTENDING OFFICIAL TENURE.

The amendment (House Bill No. 55, Mont. Sess. Laws 1901, p. 208) to Const., art. 16, $ 4, changing the tenure of county commissioners from four years to six years, and extending the tenure of then incumbents, is not violative of Const., art. 5, § 31, providing that no law shall extend the term of office of any public officer after his election, that section having reference to legislative enactments only.

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

MILBURN, J. This is an appeal from an order of the district court of Silver Bow county sustaining defendants motion to quash the alternative writ issued and dismissing the proceedings, and from the judgment which was accordingly entered against relator. Relator's affidavit in the mandamus proceedings recited that the defendant commissioners were the qualified and acting board of commissioners of Silver Bow county, and, as such, acted as the board of canvassers for the year 1904; that, prior to the election of that year, the relator with two others were nominated to be voted for severally at the next election for the office of county commissioner; that the votes were canvassed and that the relator and the two others received the highest number of votes of those cast for the several candidates for the positions named; that demand was duly made upon the canvassers to declare the relator and the others as elected to the office mentioned, and to order and direct a certificate of election to issue to the relator, but that the defendants wholly failed and refused to do so. The alternative writ was issued, and a motion to quash was filed. This motion duly coming on for hearing, the court's attention was invited to the fact that the relator based his application upon the alleged fact that the constitutional amendment submitted to the people at the said election. and known as "House Bill No. 55" (Session Laws 1901, p. 208), had not been legally adopted, for the reason that the same had not been published in manner and form and for the length of time required by section 9, article 19, of the Constitution. The court held that this question was one of law for the court, and that it would take judicial notice of the manner of the supposed adoption of said amendment. The court further concluded that it would hear evidence upon the point in order to actually acquaint itself with that of which it took such notice. Thereupon certain evidence was introduced tending to show that the amendinent had not been published for the period required by the Constitution, in any paper designated by the Secretary of State for that purpose in said county. The court, after taking this evidence, held that the amendment had been adopted in manner and form as required by law. Hence this appeal.

Almost all of the argument of the appellant, relator in the court below, is devoted to the question as to whether or not the

to us to be correct. There is only one logical conclusion and that is that the object of the Legislature in submitting this amendment was as we have heretofore stated.

The will of the people in this matter as expressed at the polls was supreme, and, prima facie, it appears that the amendment was submitted lawfully and adopted.

Without approving the action of the court below in taking testimony, and without considering what reasons the court below had in sustaining the motion to quash, we conclude that its action was correct in quashing the writ, dismissing the proceedings, and rendering judginent for the respondents.

Affirmed.

in an instruction that, in determining the weight to be given to the testimony of plaintiff and his wife, the jury might consider the testimony given by them at the former trial, because singling out particular evidence.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, $$ 777-580.] 4. SAME-READING LAW TO JU'RY.

In an action against a notary for falsely certifying to an acknowledgment of a mortgage, on which plaintiff advanced money, the issue being whether plaintiff relied upon the certificate, plaintiff testified that he did rely on the certificate, but defendant contended that at a former trial plaintiff testified that he did not see the mortgage until after he had paid over the money, and counsel for defendant in his argument read a portion of the opinion of the Supreme Court in the case on appeal after the former trial, in which it was stated that if plaintiff did not rely on the certificate, the mere fact of the notary's violation of his duty would not entitle plaintiff to recover. The court gave instructions embodying the law as so declared by the Supreme Court. Held, that under the facts there was no abuse of discretion in refusing to prohibit the reading of the excerpt in question.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, 88 290, 291.]

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

Action by Edward L. Mahoney against John M. Dixon and others. From a judgment in favor of defendants. Plaintiff anpeals. Affirmed.

John J. McHatton, for appellant. L. P. Forestell and Chas. R. Leonard, for respondents.

BRANTLY, C. J., and HOLLOWAY, J., concur.

(34 Mont. 454)

MAIIONLY V. DIXON et al. (Supreme Court of Montana. Nov. 5, 1906.) 1. WITNESSES — CROSS-EXAMINATION - SCOPE

OF EXAMINATION.

Code Civ. Proc. $ 3376, provides that the opposite party may cross-examine a witness as to any facts stated in his direct exainination or connected therewith, and section 3144 provides that it is within the discretion of the court to permit inquiry into a collateral fact when it affects the credibility of a witness. In an action against a notary for falsely certifying to an at knowledgment of a mortgage, on the security of which plaintiff advanced money, plaintiff was asked on direct examination whether he had any interest in the note and mortgage, which did not run to plaintiff, to which he replied in the affirmative, and on cross-examination he was asked to state why the mortgage was so (rawn, to which he replied that it was in order that he would not have to pay taxes on it. Held, that the evidence was admissible as proper cross-examination, and for the purpose of affecting the credibility of the witness.

[Ed. Note.--For cases in point, see vol. 50, Cent. Dig. Witnesses, $$ 949, 967–972, 1106, 1108.) 2. SAME.

On direct examination plaintiff was asked to state what, if any, investigation he made with a view to recovering his money, and he replied that he had the one wlio introduced the mortgagor to the notary brought back for the purpose of seeing whether he could get his money out of him, but found he could not, and then saw the notary and told him that he would look to him for it. On cross-examination plaintiff was asked whether any offers had been made to him by the one who introduced the mortgagor to the notary, to which he replied that he did not recollect that there were any efforts made. II eld, that it was proper cross-examination.

[Ed. Note.-For cases in point. see vol. 50, ('ent. Dig. Witnesses, $S 919, 967-972.] 3. TRIAL — INSTRUCTIONS - CREDIBILITY

OF WITXESSES.

Code Civ. I'roc. $ 3380, provides that any witness may be impeached by evidence of inconsistent statements. II eld, that where plaintiff and his wife gave testimony contradictory to their testimony at a former trial, and the only other witness at the second trial who testiSed at the first trial admitted the correctness of his former testimony, and gave no testimony contrary thereto, there was no reversible error

IIOLLOWAY, J. This cause was heretofore before this court, and a sufficient statement of the case will be found preceding the opinion. Mahoney V. Dixon, 31 Mont. 107, 77 Pac. 519. Upon the new trial the jury returned a verdict in favor of the defendants and judgment was entered accordingly. From that judgment and order denying him a new trial the plaintiff appeals.

The assignments of error which need be considered are: (1) Errors in the admission of evidence; (2) the giving of instruction No. 12; (3) misconduct of counsel; and (1) insufficiency of the evidence to justify the verdict.

1. On the direct examination of plaintiff his counsel made this observation: "Iohserve that this note and mortgage were made to George H. Cotter.” And then asked this question: "You may state whether or not you had any interest in the note and mortgage." To which the plaintiff replied: "Yes sir, I had. The money was mine, and I had it made out that way for my use and benefit." On cross-examination he was asked to state why Cotter was nameil as nortgagee. Objection was made to this question, but the objection was overruled, and the witness answered: “In order that I would not have any taxes to pay on it.” 'Counsel for plaintiff moved that the answer be stricken out, but the motion was overruled. We think the evidence was admissible as proper (rossexamination (Code Civ. Proc. § 3370), and