hereto that the party of the second part shall, there being no evidence showing or tending have the right at any time before the 12th to show that the repairing or cleaning out day of June, 1897, to shut off the water from the ditch was unnecessary or unreasonable at said ditch for the space of ten days. That the time, it must be assumed that the deafter the said 12th day of June, 1897, the fendant Stoner had a right to clean the ditch party of the second part shall furnish to and keep it in repair, and to shut off the ditch at least three cubic feet of water to water at the headgate if necessary in so dothe party of the first part. The said party ing, even though it deprived the plaintiff of of the second part agrees to enlarge and ex- the use of the water while he was so engaged. tend said ditch at his own expense, except | The plaintiff had no right to have the case go that the first party agrees to furnish his to the jury upon this evidence, for there services, with team, for fourteen days. The was a complete failure of proof that the act party of the second part agrees to maintain complained of was wrongful or tortious. and keep said ditch in repair for the term of Aside from the alleged wrong in shutting off one year after the completion of the enlarge- the water for repairs, it is urged that the ment thereof, and after the expiration of defendants were jointly liable for separate one year from the completion of the enlarge- and independent interferences with Mau's ment of said ditch each of the parties hereto right by reason of their common answer, in agrees to bear his portion of all necessary which they pleaded this contract, and that expenses in maintaining said ditch and keep- the case falls within the rule announced in ing the same in repair in proportion to the Hulsman v. Todd, 96 Cal. 228, 31 Pac. 39. amount of water used by them or their as- In that case the defendants filed a common signs. The party of the first part shall have answer in which they admitted their adverse the right, at all times after the completion claim to the water in dispute, and set up a of the enlargement of said ditch, to draw claim of prior right in the defendant Todd, from said ditch, through two openings or and also that the defendants claimed no insluice gates, to be constructed by the party terest or right to use the water except withof the first part, five cubic feet of water. in the limits of and subject to his superior And it is agreed that, after the completion right thereto. The trial court found from of the enlargement of said ditch, all of the the evidence that the defendants did claim ditch now owned by the party of the first adversely to the plaintiff, and that Todd, for part lying north of the juncture of said the benefit of himself and his codefendants, ditch with Stoner ditch and south of Spring "diverted a portion of the water belonging creek shall become the property of the party to the plaintiff.” It was held as to Hosellof the second part. And it is agreed that kus, one of the defendants, he having so said ditch, when so enlarged, shall be the joined in a common answer, that the diverproperty of the parties hereto in proportion sion was for his benefit, "and presumably to the amount of water used by them or made partly at his instance and procuretheir assigns to its present terminus. It is ment," and that a joint judgment against further agreed that all water flowing in said the defendants was proper upon the issues ditch in excess of said five cubic feet shall and the evidence. In that case the defendbe the property of the party of the second ants did not deny taking the water, but part.”

attempted to justify under and in pursuance The defendants set up this contract in their of a prior right thereto, and, of course, havanswer, and alleged a compliance with its ing failed to establish such prior right as terms by John W. Stoner, and claimed the against the plaintiff, they were jointly liable, right to use the water over and above the In Livesay et al. v. First Nat. Bank of Denamount reserved to Mau. The plaintiff by ver et al. (Colo.) 86 Pac. 102, which was an his reply alleged that “the said John W. action in tort, the Supreme Court of Colorado Stoner failed and neglected to enlarge said says: “We do not think that the mere fact ditch, and therefore never acquired any rights of joining in a joint answer by defendants therein." No evidence was offered in sup- who are charged with joint liability has any port of this allegation by the plaintiff. The weight as evidence to prove such joint liacontract was introduced in evidence by him, bility in the absence of proof of other acts was a part of his proof, and was before the or facts which would prove such joint liacourt in its entirety, and, conceding that by bility.” In the case before us there is no its terms the right to clean out and repair claim in the answer of the right to use the the ditch, whenever it became necessary, de- water other than as established by plaintiff's pended upon the performance of this condi- evidence. The defendants claim no right to tion precedent, the plaintiff, having develop- the use of the first five cubic feet of water ed that fact in his own evidence, in order running in the ditch per second of time. to prove the acts of repairing the ditch to Mau's right thereto is conceded, and his evi. have been tortious, should have followed it dence shows that and no more to be the with evidence showing or tending to show amount to which he is entitled. The right that the condition precedent had never been to use the water subject to Mau's right by performed. Having failed to do this, and the defendants other than Stoner was permissive as well by the plaintiff as by Stoner.

(31 Utah, 194) By the contract the one does not undertake

FARNEY . OREGON SHORT LINE R. CO. to be responsible for the acts of the other,

(Supreme Court of Utah. Nov. 12, 1906.) nor do they claim jointly, through it or otherwise, the right to use any of the water

1. MASTER AND SERVANT-INJURIES TO SERV

ANT-DEFECTIVE APPLIANCE-NEGLIGENCEto which Mau is entitled. The evidence

QUESTION FOR JURY. shows or tends to show that the defendants In an action for injuries to a servant caused acted separate and apart at different times

by the fall of a gallows frame used in moving

heavy bridge girders, evidence held to require and places, and not in pursuance of any submission of defendant's negligence in the condesign or purpose by all of them to deprive struction of the gallows to the jury. plaintiff of his rights. Such being the case, 2. SAME-ASSUMED RISK. each would be liable for his own trespass

Where a gallows frame, by the fall of

which plaintiff was injured, was designed and or wrong, and neither would be liable for the

constructed by defendant railroad company, and trespass or wrong committed by the other, transported from point to point on its line, as. even though the damage sought was the re- required, and plaintiff, who had had no previous

experience with such appliances, only assisted sult of such independent wrongs. Blaisdell

in setting up the gallows under the direction of v. Stephens, 14 Nev. 17, 33 Am. Rep. 523;

his foreman, he did not assume the risk of deMiller v. Highland Ditch Co., 87 Cal. 430, 25 fects in the design, plan or construction thereof. Pac. 550, 22 Am. St. Rep. 254; Pomeroy, [Ed. Note.-For cases in point, see vol. 34, Remedies & Remedial Rights (2d Ed.) p. 465;

Cent. Dig. Master and Servant, 88 574-584.] Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. Appeal from District Court, Salt Lake 566; Livesay et al. v. First Nat. Bank of

County; M, L, Ritchie, Judge. Denver et al., supra. There was more than Action by Herbert J. Farney against the a variance between the proof and the allega- Oregon Short Line Railroad Company. From tions of the petition; it was a failure to a judgment for plaintiff, defendant appeals. prove the cause of action alleged. The case Affirmed. does not, therefore, come within the rule that

Plaintiff brought this action to recover for when there is some evidence tending to prove

personal injuries alleged to have been caused plaintiff's case the question should go to the

him through the negligence of defendant. It. jury. Proof only of several separate and

appears from the record that at the time of independent wrongs was fatal to the cause of

the injuries for which this suit was brought, action under the pleadings, and the curt

the defendant company was engaged in buildproperly gave the instruction complained of.

ing a new steel bridge along the line of its Livesay et al. v. First Nat. Bank of Denver

railroad and across Ham's Fork, a small et al., and other cases, supra.

stream near Opal, Wyo. Defendant was movOur attention has been called to different

ing a wooden bridge, and replacing it with provisions of the Code, and it is urged that

one of steel. The work had progressed to they required the submission of the case to

the point where it was necessary to move the jury. It may be conceded that under

a heavy steel girder, weighing about 65,these provisions a recovery may be had

000 pounds. The machinery and appliances against one or more joint tort-feasors sued

which had been provided and constructed for jointly, or, in other words, that such right

the purpose of doing the work in hand, conis regulated by the proof, and not by the al.

sisted of an ordinary locomotive and cars legations, of the petition. Thompson v. Rein

and a hoisting engine set upon a flat car, and hard et al., 11 Wis. 306; Mead v. McGraw,

a gallows frame with fall lines, blocks and 19 Ohio St. 55; Reugler v. Lilly et al., 26

tackle. The locomotive and cars were used Ohio St. 48; Blodget v. Morris, 14 N. Y.

for the purpose of transporting the heavy 482; Lower v. Franks, 115 Ind. 334, 17 N.

part of the material to the place on the E. 630. Each of these cases was one wherein

bridge where it was desired to be used. The the action was predicated upon a single tort

steel girders were taken from the cars by or wrong. It should be remembered that

means of blocks and tackle attached to the every tort is complete in itself, and all who

gallows frame, and operated by the hoisting participate in its commission are jointly and

engine. The principal part of the machinery severally liable for the damage resulting

and appliances in question in this case is the therefrom. These cases deal with that ques

gallows frame which was constructed of mation, which is entirely different from the one

terials furnished by defendant, and was unbefore us, for here the defendants were not

der the direct supervision and control of dejoint tort-feasors under the evidence.

fendant's foreman. This gallows frame, The judgment will be affirmed.

which was about 95 feet in length, was con. Affirmed.

structed as follows: Two uprights, known

as plumb posts, about 12x12 inches square POTTER, C. J., and PARMELEE, District Judge, concur.

and 32 feet long, which stood upright and

rested on concrete abutments which had been PARMELEE, District Judge, sat in place of constructed for the purpose of retaining the BEARI), J., who had announced his disquali- steel girders as their resting places. Needle fication to sit in the hearing and determina- beams were bolted at the top, and so corition of this cause.

structed that the arms thereof extended some 10 or 12 feet outward from the plumb posts. | frame upon which to perform his work, and Wind braces were fastened at the outer ends | carelessly and negligently failed to use reaot the needle beams, and down near the foot sonable care in the construction of said galof the plumb posts, running at an angle of lows frame; and carelessly and negligently perhaps 50 degrees from the perpendicular. failed and omitted to so construct said galAcross the bottom of the plumb posts were lows frame that the same was reasonably placed collar beams connecting them togeth- safe, so that when a certain steel girder was er. There were four uprights or plumb posts being moved and lifted by means of said galin the gallows frame; that is, a set consisting lows frame the same would sustain the of two uprights at each end of the frame. On weight of the girder and remain upright; the morning of August 5, 1903, the steel gird- and carelessly and negligently failed and er which was about 9. feet long was taken omitted to stay and brace said gallows frame off a flat car and placed on the bridge. This with guy ropes, or otherwise; and carelessly was done by attaching the tackle of the gal- and negligently failed and omitted to brace lows frame to the girder, starting up the and stiffen certain wind braces on said galHoisting engine, and, while the girder was lows frame,

frame, * * * and carelessly and suspended, withdrawing the car from which

negligently, in the moving of said steel girdit had been taken, and then lowering the

er, placed the tackle used in moving said Girder until it rested on the bridge. Before steel girder so far to the north side of said the girder was unloaded from the car, Drap- gallows frame that there was an angle pull er. defendant's foreman, had sent plaintiff.

upon the same, rendering it thereby unsafe ; upon the needle or cross-beams of the gal

and so carelessly and negligently constructed lows frame, for the purpose of moving the said gallows frame that when plaintiff [relashings along the beams, so that the girder spondent], under defendant's [appellant's] dicould be moved over to the north. Upon the rection, was engaged in and about the work virder being unloaded and set down on the

of lifting and bracing said steel girder, the bridge, the plantiff and a companion on the

said gallows frame tipped and broke, by reasame end of the scaffold, moved the lashings

son whereof said frame fell, throwing plaintoward the north by the use of a hammer

tiff with great force, thereby injuring him in Other workmen on the east scaffold per

the back, loins and hip, and internally, and formed the same operation upon the lashings

bruising and injuring his right leg, breaking there. The hoisting engine was then set in

his right arm so that the same berame stiff motion, the lines tightened up, and the gird

and lame and caused him pain incident to Ar moved slightly to the north. The lines

several surgical operations, thereby incapaci. were then permitted to slacken preparatory

tating him from following his usual avocato the lashings being moved further north.

tion, to his clamace," etc. In addition to its Whereupon the foreman, Draper, gave di.

general denial the defendant pleaded three rections to tighten up the lines by putting

defenses: (1) That the injuries received by tlie the hoisting engine in motion. This was im

plaintiff were the result of an accident mediately done. The plaintiff and his com

caused by his own carelessness and neglipanion were at their places on the west end

genre, or to which his own carelessness diof the gallows frame, standing on the needle

rectly contributed: (2) that the injuries to heam ready to receive orders. At this junc- plaintiff, if any, were caused by the acts of ture the loisting engine was put in motion,

carelessness and negligence of a fellow seryand the lines were drawn and tightened, and

ant of the plaintiff; and (3) that the in• the strain commenced. There was a cracking

juries to plaintiff, if any, were suffered or sound, and the gallows frame careened to

received by him, were caused by an accident the south. For an instant it paused and

which was one of the usual and ordinary trembled, and then the whole structure fell

risks of his employment, and was a risk and over into the river, and the plaintiff was cast

hazard that was open and obvious and into 18 or 20 feet of water. His right arm

known to plaintiff, and was therefore aswas broken, his left leg bruised, his hips in

sumed by him. A trial was had, which rejured, and his back hurt; and, as a result

sulted in a verdict for plaintiff. To reverse thereof, he was confined in the hospital for

the judgment entered on the verdict, defendsix months. Four or five operations were per

ant has appealed to this court. formed upon his arm, and nine or ten pieces of bone removed therefrom. His wrist has

P. L. Williams, John S. Willis, and George became stiff, his fingers can scarcely be bent, H. Smith, for appellant. Powers & Marioand the thumb has become rigid.

neaux, for respondent. Plaintiff alleged in his complaint “that, notwithstanding said duty (as the same is al- CHIDESTER, District Judge, after stating leged in the complaint], on the day and place the facts, delivered the opinion of the court. a foresaid, while respondent was in the em- The first assignment of error discussed by ploy of defendant, and engaged in the erec- counsel for appellant is the one based on the tion of said bridge, under the direction of de- alleged insufficiency of the evidence to justify fendant. defendant carelessly and negligently the verdict; that is, if we correctly underfailed to furnish plaintiff with a reasonably stand appellant's position, the evidence fails safe place, and a reasonably safe gallows to show negligence on the part of defendant

in failing to furnish plaintiff with a reason- man, nevertheless the plaintiff, assisting in ably safe appliance with which to perform the the work and thereby becoming conversant work required of him by his employment. with its condition, assumed the increased We do not deem it necessary to make an ex- risks and hazards, if any, created by its imtended reference to the evidence introduced, perfect and faulty construction. Appellant respecting the mechanism of the gallows

of the gallows therefore seeks to invoke the rule of assumed frame. It is sufficient to here state that risk which obtains in the class of cases where there is abundant evidence in the record to the servant in the erection or repair of a support a finding by the jury that the gal-wall, building, or other like structure, which lows frame was negligently constructed in requires the construction and erection of a that it was insufficiently braced, and not sup- scaffold or platform upon which he may plied with the necessary guy ropes to hold the stand while performing the work, and which plumb posts in position when subjected to the was constructed by himself with materials heavy strain caused by raising and lowering | furnished by the master. In such cases the the steel girder referred to in the foregoing servant knows, or is presumed to know, the statement of facts.

extent of the strain or burden to which the C. F. Burke, a witness for plaintiff, testi- scaffold or platform will be subjected. The fied in part on this point as follows: “I have construction of the scaffold being under the seen how they have been constructed [refer- servant's control, and the master having furring to gallows frames) but never construct- nished the necessary and proper materials ed one myself. * * They are construct- therefor, if the servant fails to make the ed similar to the model you have there (refer- structure sufficiently strong and convenient ring to an exhibit-a model of the gallows for the purposes for which it is intended, and frame in question) with the exception of some he is injured because of some defect in its braces on it leading from the needle beam construction, the master cannot be held lia. there across the plumb posts and connected ble for the injury. In such cases whatever with the wind braces. I never saw one that defect there may be in the scaffold or platdid not have those braces. I have seen some form is due to the negligence of the servant, times where guys were put on-use a cable and not to that of the master. In the case or set of blocks from the plumb post or dead under consideration the gallows frame was men; something fastened to the ground to built under the sole direction and supervi. keep it from swaying from one way to the sion of defendant's foreman. On this point other. The effect that would be had if there plaintiff testified as follows: "I had never were no braces except the wind braces would had any experience in building gallows be to double up. The braces that I have de- frames. That is the first one I ever helped scribed running from the wind braces to the to build. I had never seen any before. I plumb posts and to the needle cap are to knew nothing about the proper method of stiffen it. It would not be stiff enough with- constructing them. * * The gallows out those wind braces. It is liable to rack frames were built under the direction of Mr. without any braces on it at all.” Parry Draper, the foreman. He gave orders relatBurke, a witness for plaintiff, testified: “I ing to putting them up.” Draper, the forehave used gallows frames for putting girders man, testified, with reference to the construcor steel beams in place, and have taken part tion of the gallows frame in question, as folin the construction of gallows frames." At- lows: "It was erected under my direction. I ter explaining how a gallows frame, like the was there in charge of the job. I told the one under consideration, should be braced in men what to do * * told them how to order to successfully stand the strain required put the timbers together." The record furof it in handling and putting in place a gird- ther shows that this gallows frame had been er of the weight in question, the witness pro- used at other points along defendant's line of ceeded to explain the effect of the hoisting railroad, and had been taken to pieces, and placing in position of such a girder with "knocked down," and shipped to Ham's Fork, a gallows frame constructed on the same the place of the accident, where plaintiff asplan as the one under consideration, and sisted in putting it together. He had nothing stated: “It would not be strong enough. whatever to do with the selection of the timIt would rack sidewise. It would jack-knife ber with which it was constructed, nor with it right over.” Other witnesses testified to the designing of the plans upon which it substantially the same facts respecting the was constructed. It does not appear that he alleged defective condition of the gallows appreciated or had any knowledge respectframe caused by the lack of sufficient braces ing the amount of strain or pressure to which in its construction and the lack of guy ropes. the gallows frame could be safely subjected. In view of this testimony, when considered in In fact, we think it reasonably appears from connection with other facts herein stated the record that he was ignorant of the mathand referred to, we think the question of ematical and mechanical principles by which negligence on the part of plaintiff was prop- its sufficiency could have been determined. erly submitted to the jury.

And, further, it is not claimed that the acci. Appellant next insists that while the gal- dent was due to any negligence or defective lows frame was constructed under the sup- workmanship of plaintiff, or that of his felervision and direction of defendant's fore low servants in putting together and erecting the gallows frame. Appellant in its brief, ment; but, on the contrary, it was erected says: "The testimony fails to disclose that solely under the direction of Charles Killiper, any of the timbers broke, or that any of the who, as a skilled expert, had been sent out by bolts or lines gave way until after the gal- the company to erect the bridge. lows frame had pitched into the river.” This The scaffold was being used to support the being admitted, it necessarily follows that dead weight of the material placed on it, whatever defect, if any, there was in the and also to aid in placing the beams into structure, was due to the imperfect plan or place, with all the additional strain caused faulty design upon which it was constructed thereby. * * * In view of the purposes and braced. It thus appears that this is a to which this scaffold was to be put, and of case where the master, and not the servant, the fact that the workmen had no control provided the place of employment, and the ap- over the mode of its erection, the trial pliances with which the work was performed. court rightly held that the defendant comTherefore this case falls within that class pany would be responsible to the plaintiff for where the master is required to use reason- negligence in its construction.” Woods v. able care to provide the servant with suf- Lindvall, 48 Ted. 62, 1 C. C. A. 37; National ficient and reasonably safe appliances with Refining Co. v. Willis (C. C. A.) 143 Fed. 107. which to do the work required of him by his We fail to find any reversible error in the contract of employment.

record. The judgment is therefore affirmed, In the case of Austin Mfg. Co. v. John- with costs. son, 89 Fed. 677, 32 C. C. A. 309, practically the same questions were involved as are

MCCARTY, C. J., and FRICK, J., concur. presented in this case, and the Circuit Court of Appeals, in the course of the opinion, say: “The liability of the master cannot be deter

(34 Mont. 143) mined simply by showing that the place

GILCHRIST V. HORE et al. where the workmen were engaged in his sery- (Supreme Court of Montana. Oct. 29, 1906.) ice was a scaffold, but it must depend upon 1. ATTORNEY AND CLIENT-ATTORNEY'S LIEN the nature of the scaffold, the purposes it is

-PROCEEDINGS TO ENFORCE.

Code Civ. Proc. $ 430, provides that, from to subserve, whether it could be properly left

the commencement of an action, the attorney to the workmen to determine and control the

for plaintiff shall have a lien on the cause of method of its erection, whether they did in action which shall attach to any judgment in fact control its erection, or whether the mas

his client's favor and the proceeds thereof.

Held that, where an attorney rendered services ter had charge thereof. In the case at bar

for the mortgagor in an action wherein an inthe scaffold was intended, not only as a place strument on its face a deed was declared to be a where the workmen were to stand, but as a mortgage, in an action by the attorney to ensupport upon which was to be placed the force his lien on the land, it was not necessary entire superstructure of the bridge during

for him to tender to the mortgagee the amount

of the mortgage, as a condition precedent to the course of its erection

* it is clear the foreclosure of the lien. that such workmen as the defendant in error 2. PLEADING-REPLY-NEW MATTER-DENIAL. [plaintiff] could not be expected to know the

Code Civ. Proc. $ 661, provides that the strain that would be placed upon this scaf

forms of pleading shall be those prescribed in

the Code. Section 662 provides that the only fold in the erection of a steel superstructure. pleadings allowed on the part of the plaintiff are It is equally clear that it would not have the complaint, a demurrer to the answer, and been open to the defendant in error (plaintiff]

a reply, and, on the part of the defendant, the

demurrer to the complaint, the answer, and the to' exercise any control over the method in

demurrer to the reply. By section 690 the which the scaffold was erected or the materi- answer may consist of denials and statements al used in its construction.

The purpose

of new matter, the new matter being a defense for which this scaffold was to be used, then,

or counterclaim. By section 754 every allegais inapplicable to the reasons upon which the

tion of new matter in a reply is deemed to be

denied. By Laws 1905, p. 8, c. 5, the plainrule is based, that ordinarily the master is

tiff, in a reply, may allege any new matter not not responsible for the safety of stagings inconsistent with the complaint constituting a which the workmen put up as aids in carry

defense to the counterclaim or new matter in ing out the particular work they are em

the answer. In an action by an attorney to

foreclose his attorney's lien on certain land, ployed to perform. The use to which it was .

a defendant answered, setting forth that she had intended to subject this structure, in that a mortgage on the property, and seeking the there would be placed thereon, not only the

foreclosure of the same, and plaintiff filed a

reply alleging that defendant had received rents dead weight of the material composing the

and profits from the property amounting to a bridge, but also the strain caused by plac- specified amount. Held, that plaintiff's allegaing the different parts in proper position, tions as to the amounts received by defendant clearly shows that the erection of the stag

were denied, a contention that defendant's plead

ing constituted a "cross-complaint," and plaining was not a matter that could be safely

tiff's second pleading an answer which required left to the control of ordinary laborers, but from defendant a reply, in the absence of which required skilled control by persons who, from the affirmative allegations of plaintiff's second experience, would know what strain would

pleading were admitted, being untenable. be placed on the, staging; and the evidence Appeal from District Court, Silver Bow shows that in its erection the defendant in County; Geo. M. Bourquin, Judge. error (piaintiff] exercised no control or judg- Action by M, P. Gilchrist against Jeremiah