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there being no evidence showing or tending to show that the repairing or cleaning out the ditch was unnecessary or unreasonable at the time, it must be assumed that the defendant Stoner had a right to clean the ditch and keep it in repair, and to shut off the water at the headgate if necessary in so do

hereto that the party of the second part shall have the right at any time before the 12th day of June, 1897, to shut off the water from said ditch for the space of ten days. That after the said 12th day of June, 1897, the party of the second part shall furnish to ditch at least three cubic feet of water to the party of the first part. The said partying, even though it deprived the plaintiff of of the second part agrees to enlarge and extend said ditch at his own expense, except that the first party agrees to furnish his services, with team, for fourteen days. The party of the second part agrees to maintain and keep said ditch in repair for the term of one year after the completion of the enlargement thereof, and after the expiration of one year from the completion of the enlargement of said ditch each of the parties hereto agrees to bear his portion of all necessary expenses in maintaining said ditch and keeping the same in repair in proportion to the amount of water used by them or their assigns. The party of the first part shall have the right, at all times after the completion of the enlargement of said ditch, to draw from said ditch, through two openings or sluice gates, to be constructed by the party of the first part, five cubic feet of water. And it is agreed that, after the completion of the enlargement of said ditch, all of the ditch now owned by the party of the first part lying north of the juncture of said ditch with Stoner ditch and south of Spring creek shall become the property of the party of the second part. And it is agreed that said ditch, when so enlarged, shall be the property of the parties hereto in proportion to the amount of water used by them or their assigns to its present terminus. It is further agreed that all water flowing in said ditch in excess of said five cubic feet shall be the property of the party of the second part."

The defendants set up this contract in their answer, and alleged a compliance with its terms by John W. Stoner, and claimed the right to use the water over and above the amount reserved to Mau. The plaintiff by his reply alleged that "the said John W. Stoner failed and neglected to enlarge said ditch, and therefore never acquired any rights therein." No evidence was offered in support of this allegation by the plaintiff. The contract was introduced in evidence by him, was a part of his proof, and was before the court in its entirety, and, conceding that by its terms the right to clean out and repair the ditch, whenever it became necessary, depended upon the performance of this condition precedent, the plaintiff, having developed that fact in his own evidence, in order to prove the acts of repairing the ditch to have been tortious, should have followed it with evidence showing or tending to show that the condition precedent had never been performed. Having failed to do this, and

the use of the water while he was so engaged. The plaintiff had no right to have the case go to the jury upon this evidence, for there was a complete failure of proof that the act complained of was wrongful or tortious. Aside from the alleged wrong in shutting off the water for repairs, it is urged that the defendants were jointly liable for separate and independent interferences with Mau's right by reason of their common answer, in which they pleaded this contract, and that the case falls within the rule announced in Hulsman v. Todd, 96 Cal. 228, 31 Pac. 39. In that case the defendants filed a common answer in which they admitted their adverse claim to the water in dispute, and set up a claim of prior right in the defendant Todd, and also that the defendants claimed no interest or right to use the water except within the limits of and subject to his superior right thereto. The trial court found from the evidence that the defendants did claim adversely to the plaintiff, and that Todd, for the benefit of himself and his codefendants, "diverted a portion of the water belonging to the plaintiff." It was held as to Hosellkus, one of the defendants, he having so joined in a common answer, that the diversion was for his benefit, "and presumably made partly at his instance and procurement," and that a joint judgment against the defendants was proper upon the issues and the evidence. In that case the defendants did not deny taking the water, but attempted to justify under and in pursuance of a prior right thereto, and, of course, having failed to establish such prior right as against the plaintiff, they were jointly liable. In Livesay et al. v. First Nat. Bank of Denver et al. (Colo.) 86 Pac. 102, which was an action in tort, the Supreme Court of Colorado says: "We do not think that the mere fact of joining in a joint answer by defendants who are charged with joint liability has any weight as evidence to prove such joint liability in the absence of proof of other acts or facts which would prove such joint liability." In the case before us there is no claim in the answer of the right to use the water other than as established by plaintiff's evidence. The defendants claim no right to the use of the first five cubic feet of water running in the ditch per second of time. Mau's right thereto is conceded, and his evidence shows that and no more to be the amount to which he is entitled. The right to use the water subject to Mau's right by the defendants other than Stoner was per

missive as well by the plaintiff as by Stoner. By the contract the one does not undertake to be responsible for the acts of the other, nor do they claim jointly, through it or otherwise, the right to use any of the water to which Mau is entitled. The evidence shows or tends to show that the defendants acted separate and apart at different times and places, and not in pursuance of any design or purpose by all of them to deprive plaintiff of his rights. Such being the case, each would be liable for his own trespass or wrong, and neither would be liable for the trespass or wrong committed by the other, even though the damage sought was the result of such independent wrongs. Blaisdell v. Stephens, 14 Nev. 17, 33 Am. Rep. 523; Miller v. Highland Ditch Co., 87 Cal. 430, 25 Pac. 550, 22 Am. St. Rep. 254; Pomeroy, Remedies & Remedial Rights (2d Ed.) p. 465; Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566; Livesay et al. v. First Nat. Bank of Denver et al., supra. There was more than a variance between the proof and the allegations of the petition; it was a failure to prove the cause of action alleged. The case does not, therefore, come within the rule that when there is some evidence tending to prove plaintiff's case the question should go to the jury. Proof only of several separate and independent wrongs was fatal to the cause of action under the pleadings, and the court properly gave the instruction complained of. Livesay et al. v. First Nat. Bank of Denver et al., and other cases, supra.

Our attention has been called to different provisions of the Code, and it is urged that they required the submission of the case to the jury. It may be conceded that under these provisions a recovery may be had against one or more joint tort-feasors sued jointly, or, in other words, that such right is regulated by the proof, and not by the allegations, of the petition. Thompson v. Reinhard et al., 11 Wis. 306; Mead v. McGraw, 19 Ohio St. 55; Reugler v. Lilly et al., 26 Ohio St. 48; Blodget v. Morris, 14 N. Y. 482; Lower v. Franks, 115 Ind. 334, 17 N. E. 630. Each of these cases was one wherein the action was predicated upon a single tort or wrong. It should be remembered that every tort is complete in itself, and all who participate in its commission are jointly and severally liable for the damage resulting therefrom. These cases deal with that question, which is entirely different from the one before us, for here the defendants were not joint tort-feasors under the evidence.

The judgment will be affirmed.

POTTER, C. J., and PARMELEE, District Judge, concur.

PARMELEE, District Judge, sat in place of BEARD, J., who had announced his disqualification to sit in the hearing and determination of this cause.

(31 Utah, 194)


In an action for injuries to a servant caused by the fall of a gallows frame used in moving heavy bridge girders, evidence held to require submission of defendant's negligence in the construction of the gallows to the jury.


Where a gallows frame, by the fall of which plaintiff was injured, was designed and constructed by defendant railroad company, and transported from point to point on its line, as required, and plaintiff, who had had no previous experience with such appliances, only assisted in setting up the gallows under the direction of his foreman, he did not assume the risk of defects in the design, plan or construction thereof.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 574-584.]

Appeal from District Court, Salt Lake County; M. L. Ritchie, Judge.

Action by Herbert J. Farney against the Oregon Short Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff brought this action to recover for personal injuries alleged to have been caused him through the negligence of defendant. It. appears from the record that at the time of the injuries for which this suit was brought,. the defendant company was engaged in building a new steel bridge along the line of its railroad and across Ham's Fork, a small stream near Opal, Wyo. Defendant was moving a wooden bridge, and replacing it with one of steel. The work had progressed to the point where it was necessary to move a heavy steel girder, weighing about 65,000 pounds. The machinery and appliances which had been provided and constructed for the purpose of doing the work in hand, consisted of an ordinary locomotive and cars and a hoisting engine set upon a flat car, and a gallows frame with fall lines, blocks and tackle. The locomotive and cars were used for the purpose of transporting the heavy part of the material to the place on thebridge where it was desired to be used. The steel girders were taken from the cars by means of blocks and tackle attached to the gallows frame, and operated by the hoisting engine. The principal part of the machinery and appliances in question in this case is the gallows frame which was constructed of materials furnished by defendant, and was under the direct supervision and control of de-fendant's foreman. This gallows frame, which was about 95 feet in length, was constructed as follows: Two uprights, known as plumb posts, about 12x12 inches square and 32 feet long, which stood upright and rested on concrete abutments which had been constructed for the purpose of retaining the steel girders as their resting places. Needle beams were bolted at the top, and so constructed that the arms thereof extended some.

frame upon which to perform his work, and carelessly and negligently failed to use reasonable care in the construction of said gallows frame; and carelessly and negligently failed and omitted to so construct said gallows frame that the same was reasonably safe, so that when a certain steel girder was being moved and lifted by means of said gallows frame the same would sustain the weight of the girder and remain upright; and carelessly and negligently failed and omitted to stay and brace said gallows frame with guy ropes, or otherwise; and carelessly and negligently failed and omitted to brace and stiffen certain wind braces on said gallows frame, *** and carelessly and negligently, in the moving of said steel girder, placed the tackle used in moving said steel girder so far to the north side of said

10 or 12 feet outward from the plumb posts. Wind braces were fastened at the outer ends of the needle beams, and down near the foot of the plumb posts, running at an angle of perhaps 50 degrees from the perpendicular. Across the bottom of the plumb posts were placed collar beams connecting them together. There were four uprights or plumb posts in the gallows frame; that is, a set consisting of two uprights at each end of the frame. On the morning of August 5, 1903, the steel girder which was about 95 feet long was taken off a flat car and placed on the bridge. This was done by attaching the tackle of the gallows frame to the girder, starting up the hoisting engine, and, while the girder was suspended, withdrawing the car from which it had been taken, and then lowering the girder until it rested on the bridge. Before 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 needle or cross-beams of the gallows frame. for the purpose of moving the lashings along the beams, so that the girder could be moved over to the north. Upon the girder being unloaded and set down on the bridge, the plantiff and a companion on the same end of the scaffold, moved the lashings toward the north by the use of a hammer Other workmen on the east scaffold performed the same operation upon the lashings there. The hoisting engine was then set in motion, the lines tightened up, and the girder moved slightly to the north. The lines were then permitted to slacken preparatory to the lashings being moved further north. Whereupon the foreman, Draper, gave di rections to tighten up the lines by putting the hoisting engine in motion. This was imThis was immediately done. The plaintiff and his companion were at their places on the west end of the gallows frame, standing on the needle beam ready to receive orders. At this juneture the hoisting engine was put in motion. and the lines were drawn and tightened, and the strain commenced. There was a cracking sound, and the gallows frame careened to the south. For an instant it paused and trembled, and then the whole structure fell over into the river, and the plaintiff was cast into 18 or 20 feet of water. His right arm was broken, his left leg bruised, his hips injured, and his back hurt; and, as a result thereof, he was confined in the hospital for six months. Four or five operations were performed upon his arm, and nine or ten pieces of bone removed therefrom. His wrist has became stiff, his fingers can scarcely be bent, and the thumb has become rigid.

Plaintiff alleged in his complaint "that, notwithstanding said duty [as the same is alleged in the complaint], on the day and place aforesaid, while respondent was in the employ of defendant, and engaged in the erection of said bridge, under the direction of defendant. defendant carelessly and negligently failed to furnish plaintiff with a reasonably safe place, and a reasonably safe gallows

upon the same, rendering it thereby unsafe; and so carelessly and negligently constructed said gallows frame that when plaintiff [respondent], under defendant's [appellant's] direction, was engaged in and about the work of lifting and bracing said steel girder, the said gallows frame tipped and broke, by reason whereof said frame fell, throwing plaintiff with great force, thereby injuring him in the back, loins and hip, and internally, and bruising and injuring his right leg, breaking his right arm so that the same became stiff and lame and caused him pain incident to several surgical operations, thereby incapacitating him from following his usual avocation, to his damage," etc. In addition to. its general denial the defendant pleaded three defenses: (1) That the injuries received by plaintiff were the result of an accident caused by his own carelessness and negligence, or to which his own carelessness directly contributed: (2) that the injuries to plaintiff, if any, were caused by the acts of carelessness and negligence of a fellow servant of the plaintiff and (3) that the injuries to plaintiff, if any, were suffered or received by him, were caused by an accident which was one of the usual and ordinary risks of his employment, and was a risk and hazard that was open and obvious and known to plaintiff, and was therefore assumed by him. A trial was had, which resulted in a verdict for plaintiff. To reverse the judgment entered on the verdict, defendant has appealed to this court.

P. L. Williams, John S. Willis, and George H. Smith, for appellant. Powers & Marioneaux, for respondent.

CHIDESTER, District Judge, after stating the facts, delivered the opinion of the court. The first assignment of error discussed by counsel for appellant is the one based on the alleged insufficiency of the evidence to justify the verdict; that is, if we correctly understand appellant's position, the evidence fails to show negligence on the part of defendant

in failing to furnish plaintiff with a reasonably safe appliance with which to perform the work required of him by his employment. We do not deem it necessary to make an extended reference to the evidence introduced, respecting the mechanism of the gallows of the gallows frame. It is sufficient to here state that there is abundant evidence in the record to support a finding by the jury that the gallows frame was negligently constructed in that it was insufficiently braced, and not supplied with the necessary guy ropes to hold the plumb posts in position when subjected to the heavy strain caused by raising and lowering the steel girder referred to in the foregoing statement of facts.

C. F. Burke, a witness for plaintiff, testified in part on this point as follows: "I have seen how they have been constructed [referring to gallows frames] but never constructed one myself. They are construct

ed similar to the model you have there [referring to an exhibit-a model of the gallows frame in question] with the exception of some braces on it leading from the needle beam there across the plumb posts and connected with the wind braces. I never saw one that did not have those braces. I have seen some times where guys were put on-use a cable or set of blocks from the plumb post or dead men; something fastened to the ground to keep it from swaying from one way to the other. The effect that would be had if there were no braces except the wind braces would be to double up. The braces that I have described running from the wind braces to the plumb posts and to the needle cap are to stiffen it. It would not be stiff enough without those wind braces. It is liable to rack without any braces on it at all." Parry Burke, a witness for plaintiff, testified: "I have used gallows frames for putting girders or steel beams in place, and have taken part in the construction of gallows frames." After explaining how a gallows frame, like the one under consideration, should be braced in order to successfully stand the strain required of it in handling and putting in place a girder of the weight in question, the witness proceeded to explain the effect of the hoisting and placing in position of such a girder with a gallows frame constructed on the same plan as the one under consideration, and stated: "It would not be strong enough. It would rack sidewise. It would jack-knife it right over." Other witnesses testified to substantially the same facts respecting the alleged defective condition of the gallows frame caused by the lack of sufficient braces in its construction and the lack of guy ropes. In view of this testimony, when considered in connection with other facts herein stated and referred to, we think the question of negligence on the part of plaintiff was properly submitted to the jury.

Appellant next insists that while the gallows frame was constructed under the supervision and direction of defendant's fore

man, nevertheless the plaintiff, assisting in the work and thereby becoming conversant with its condition, assumed the increased risks and hazards, if any, created by its imperfect and faulty construction. Appellant therefore seeks to invoke the rule of assumed risk which obtains in the class of cases where the servant in the erection or repair of a wall, building, or other like structure, which requires the construction and erection of a scaffold or platform upon which he may stand while performing the work, and which was constructed by himself with materials furnished by the master. In such cases the servant knows, or is presumed to know, the extent of the strain or burden to which the scaffold or platform will be subjected. The construction of the scaffold being under the servant's control, and the master having furnished the necessary and proper materials therefor, if the servant fails to make the structure sufficiently strong and convenient for the purposes for which it is intended, and he is injured because of some defect in its construction, the master cannot be held liable for the injury. In such cases whatever defect there may be in the scaffold or platform is due to the negligence of the servant, and not to that of the master. In the case under consideration the gallows frame was built under the sole direction and supervision of defendant's foreman. On this point plaintiff testified as follows: "I had never had any experience in building gallows frames. That is the first one I ever helped to build. I had never seen any before. I knew nothing about the proper method of constructing them. * The gallows

frames were built under the direction of Mr. Draper, the foreman. He gave orders relating to putting them up." Draper, the foreman, testified, with reference to the construction of the gallows frame in question, as follows: "It was erected under my direction. I was there in charge of the job. I told the men what to do told them how to put the timbers together." The record further shows that this gallows frame had been used at other points along defendant's line of railroad, and had been taken to pieces, "knocked down," and shipped to Ham's Fork, the place of the accident, where plaintiff assisted in putting it together. He had nothing whatever to do with the selection of the timber with which it was constructed, nor with the designing of the plans upon which it was constructed. It does not appear that he appreciated or had any knowledge respecting the amount of strain or pressure to which the gallows frame could be safely subjected. In fact, we think it reasonably appears from the record that he was ignorant of the mathematical and mechanical principles by which its sufficiency could have been determined. And, further, it is not claimed that the accident was due to any negligence or defective workmanship of plaintiff, or that of his fellow 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 any of the timbers broke, or that any of the bolts or lines gave way until after the gallows frame had pitched into the river." This being admitted, it necessarily follows that whatever defect, if any, there was in the structure, was due to the imperfect plan or faulty design upon which it was constructed and braced. It thus appears that this is a case where the master, and not the servant, provided the place of employment, and the appliances with which the work was performed. Therefore this case falls within that class where the master is required to use reasonable care to provide the servant with sufficient and reasonably safe appliances with which to do the work required of him by his contract of employment.

In the case of Austin Mfg. Co. v. Johnson, 89 Fed. 677, 32 C. C. A. 309, practically the same questions were involved as are presented in this case, and the Circuit Court of Appeals, in the course of the opinion, say: "The liability of the master cannot be determined simply by showing that the place where the workmen were engaged in his service was a scaffold, but it must depend upon the nature of the scaffold, the purposes it is to subserve, whether it could be properly left to the workmen to determine and control the method of its erection, whether they did in fact control its erection, or whether the master had charge thereof. In the case at bar the scaffold was intended, not only as a place where the workmen were to stand, but as a support upon which was to be placed the entire superstructure of the bridge during the course of its erection * it is clear that such workmen as the defendant in error [plaintiff] could not be expected to know the strain that would be placed upon this scaffold in the erection of a steel superstructure. It is equally clear that it would not have been open to the defendant in error [plaintiff] to exercise any control over the method in which the scaffold was erected or the material used in its construction. The purpose for which this scaffold was to be used, then, is inapplicable to the reasons upon which the rule is based, that ordinarily the master is not responsible for the safety of stagings which the workmen put up as aids in carrying out the particular work they are employed to perform. The use to which it was intended to subject this structure, in that there would be placed thereon, not only the dead weight of the material composing the bridge, but also the strain caused by placing the different parts in proper position, clearly shows that the erection of the staging was not a matter that could be safely left to the control of ordinary laborers, but required skilled control by persons who, from experience, would know what strain would be placed on the, staging; and the evidence shows that in its erection the defendant in error [piaintiff] exercised no control or judg

solely under the direction of Charles Killiper, who, as a skilled expert, had been sent out by the company to erect the bridge. The scaffold was being used to support the dead weight of the material placed on it, and also to aid in placing the beams into place, with all the additional strain caused thereby. ** In view of the purposes to which this scaffold was to be put, and of the fact that the workmen had no control over the mode of its erection, the trial court rightly held that the defendant company would be responsible to the plaintiff for negligence in its construction." Woods v. Lindvall, 48 Fed. 62, 1 C. C. A. 37; National Refining Co. v. Willis (C. C. A.) 143 Fed. 107. We fail to find any reversible error in the record. The judgment is therefore affirmed, with costs.

MCCARTY, C. J., and FRICK, J., concur.

(34 Mont. 443)


Code Civ. Proc. § 430, provides that, from the commencement of an action, the attorney for plaintiff shall have a lien on the cause of action which shall attach to any judgment in his client's favor and the proceeds thereof. Held that, where an attorney rendered services for the mortgagor in an action wherein an instrument on its face a deed was declared to be a mortgage, in an action by the attorney to enforce his lien on the land, it was not necessary for him to tender to the mortgagee the amount of the mortgage, as a condition precedent to the foreclosure of the lien.


Code Civ. Proc. § 661, provides that the forms of pleading shall be those prescribed in the Code. Section 662 provides that the only pleadings allowed on the part of the plaintiff are the complaint, a demurrer to the answer, and a reply, and, on the part of the defendant, the demurrer to the complaint, the answer, and the demurrer to the reply. By section 690 the answer may consist of denials and statements of new matter, the new matter being a defense or counterclaim. By section 754 every allegation of new matter in a reply is deemed to be denied. By Laws 1905, p. 8, c. 5, the plaintiff, in a reply, may allege any new matter not inconsistent with the complaint constituting a defense to the counterclaim or new matter in the answer. In an action by an attorney to foreclose his attorney's lien on certain land, a defendant answered, setting forth that she had a mortgage on the property, and seeking the foreclosure of the same, and plaintiff filed a reply alleging that defendant had received rents and profits from the property amounting to a specified amount. Held, that plaintiff's allegations as to the amounts received by defendant were denied, a contention that defendant's pleading constituted a "cross-complaint," and plaintiff's second pleading an answer which required from defendant a reply, in the absence of which the affirmative allegations of plaintiff's second pleading were admitted, being untenable.

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

Action by M. P. Gilchrist against Jeremiah

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