more than once that he knew that molten metal would explode when it came in contact with water or moisture or with any cold damp substance, he also testified that he did not know that there was any water on the floor of the yard, and that there was nothing to indicate it so far as he could see, that it was somewhat dark in the yard and that the cone did not look red, and that he did not know it was hot, nor that it contained any molten metal. He also testified that he was not given any explanation whatever of any danger attending the work that he was put to do.

The Supreme Court, in the case of Mather v. Rillston, 156 U. S. 391, 398, 15 Sup. Ct. 464, 467, 39 L. Ed. 464, said:

"All occupations producing articles or works of necessity, utility, or convenience may undoubtedly be carried on, and competent persons, familiar with the business and having sufficient skill therein, may properly be employed upon them; but in such cases where the occupation is attended with danger to life, body, or limb it is incumbent on the promoters thereof and the employers of others thereon to take all reasonable and needed precautions to secure safety to the persons engaged in their prosecution, and for any negligence in this respect, from which injury follows to the persons engaged, the promoters or the employers may be held responsible and mulcted to the extent of the injury inflicted. The explosive nature of the materials used in this case, and the constant danger of their explosion from heat or collision, as already explained, was well known to the employers, and was a continuing admonition to them to take every precaution to guard against explosions. Occupations, however important, which cannot be conducted without necessary danger to life, body, or limb, should not be prosecuted at all without all reasonable precautions against such dangers afforded by science. The necessary danger attending them should operate as a prohibition to their pursuit without such safeguards. Indeed, we think it may be laid down as a legal principle that in all occupations which are attended with great and unusual danger there must be used all appliances readily attainable known to science for the prevention of accidents, and that the neglect to provide such readily attainable appliances will be regarded as proof of culpable negligence. If an occupation attended with danger can be prosecuted by proper precautions without fatal results, such precautions must be taken by the promoters of the pursuit or employers of laborers thereon. Liability for injuries following a disregard of such precautions will otherwise be incurred and this fact should not be lost sight of. So, too, if persons engaged in dangerous occupations are not informed of the accompanying dangers by the promoters thereof, or by the employers of laborers thereon, and such laborers remain in ignorance of the dangers and suffer in consequence, the employers will also be chargeable for the injuries sustained. Both of these positions should be borne constantly in mind by those who engage laborers or agents in dangerous occupations, and by the laborers themselves as reminders of the duty owing to them. These two conditions of liability of parties employing laborers in hazardous occupations are of the highest importance, and should be in all cases strictly enforced."

And in the recent case of Mountain Copper Company v. Pierce, 136 Fed. 150, 69 C. C. A. 148, where an unexperienced servant was directed by the defendant smelting company to adjust a belt on a pulley shaft without instructing him with reference to a collar and set screws projecting from a shaft by which he was caught and seriously injured while endeavoring to adjust the pulley, we said:

"He [the plaintiff] testified that he knew nothing about the collar or set screws, and that neither the foreman nor Ryan nor any one else told him of their existence, nor the danger attending the operation, or how to perform it. While it is contended on the part of the plaintiff in error that both the collar

and set screws could have been seen by the defendant in error if he had properly looked, it is not contended that he was told of their existence or of the danger attending the operation or how to perform it. True it is that the defendant in error knew that it is dangerous to approach shafting, belting, or other machinery in motion. That fact not only appeared from his own testimony, but is a matter of such common knowledge that every one in his senses must be held to know it. Nevertheless it is the duty of the master. before sending or permitting an inexperienced employé to perform such dangerous work, to instruct him how to perform it, and especially to inform him of any hidden, concealed, or obscure danger. The law in our

opinion made it the duty of the plaintiff in error to inform the defendant in error of the collar and set screws, and how to perform the dangerous task, before sending or permitting him, in the course of his employment, to undertake it."

In the present case, the court below correctly left it to the jury to determine both the question of the alleged negligence of the defendant and the alleged contributory negligence on the part of the plaintiff under instructions which fully covered both questions, and which were quite as favorable to the plaintiff in error as they should have been. The judgment is affirmed.

NOTE. The following is the opinion of Whitson, District Judge, on overruling the motion for new trial:

WHITSON, District Judge. On the first trial I was of the opinion that the proximate cause of the injury had not been established as alleged, and the case was accordingly taken from the jury. On motion for new trial, I was convinced of my error in that regard upon the authority of Marande v. Texas Pacific Railway Company, 184 U. S. 173, 22 Sup. Ct. 340, 46 L. Ed. 487. While counsel for the defendant still maintain the soundness of their contention made at the first trial, they now rely chiefly in aid of their motion to set aside the verdict of the jury, and to grant a new trial, upon the showing of the plaintiff by his own testimony to sustain the defense of contributory negligence pleaded by the defendant. Their position is this: That which one knows cannot be intensified by communicating it to him. This argument is extremely plausible, but I have reached the conclusion that it is fallacious for two reasons:

First. To charge a boy 16 years old with contributory negligence because he knew the danger, it is necessary that he should have appreciated it in order to establish the defense. Thus it was expressed in Spillene v. Missouri Pacific Railway Company, 111 Mo. 555, 20 S. W. 293, as follows: "A boy may have all the knowledge of an adult respecting the dangers which may attend a particular act, but at the same time he may not have the prudence, thoughtfulness, and discretion to avoid them which are possessed by the ordinarily prudent adult person." This is the well-established rule. Great stress was laid upon the fact that the plaintiff testified that he knew it was dangerous to strike red hot cones. But it was not dangerous. The testimony was not in substantial conflict upon this question. It was shown to be dangerous to strike red hot matte cones in close proximity to water, or with wet steel. It was not dangerous to strike red hot slag cones under either condition. Therefore the testimony of the plaintiff must be taken in connection with the other testimony in the case, and with the qualification which he himself made in other parts of his testimony. To the contention made by counsel that the testimony of plaintiff shows that he fully appreciated the danger I cannot give my assent. True, the plaintiff was not able to stand up at all times against the skillful cross-examination of counsel, but he did repeat two or three times that he knew it was dangerous to strike hot matte cones when there was water there, and he said that he knew that he ought to break up only cold cones. The whole testimony, fairly considered. disclosed this state of affairs: The boy had observed generally certain occurrences around the yard. He had seen cones explode when coming in contact with water, and had seen the effect of cold, damp steel coming in contact with

hot metal. He had been permitted to go to work, however, without any instruction as to the danger attending such explosions. The master had allowed a boy of inexperience to observe for himself from the surroundings and apply his immature judgment in reasoning from cause to effect, without warning him of the danger which it is plain to my mind he did not fully appreciate. While counsel for the defendant have shown much ability in the presentation of their theory and have displayed much ingenuity and skill in cross-examining the plaintiff, I can but feel that the contention they make is technical, and that they have overlooked that phase of the case which requires the master to caution one of tender years not generally of danger, but to put him in possession of such facts as will enable him to appreciate it. Second. While the rule is that one cannot deliberately enter a place of danger, or do an act which is manifestly dangerous and which in all reasonable probability will result in injury, yet that does not relieve the master from furnishing a safe place. The argument is made that the plaintiff knew that the cone which he struck must have been deposited between 11 and 1 o'clock, but the master is presumed to have known this also. Clearly the plaintiff was pursuing the work which he had been directed to do. The information that there was only one cone there, and that recently from the furnace, must have been equally in contemplation of law in the mind of the master as in the mind of the plaintiff. The cone did not appear to be hot. It was shown that it had cooled sufficiently to form a crust, so to speak, on the outside from one to two inches in thickness, and, of course, it was black. Plaintiff, then, acted on appearances, and it was a question for the jury to say, considering his age, experience, and the like, whether he was guilty of contributory negligence. Again, it was disclosed by the testimony of Sabin, the shift boss, that it was against the rules to put water at the particular place where those cones were being deposited. He said: "I kept the water out of it, yes, sir; and I always gave orders to that effect, too. Q. That there should be no water put in there? A. Yes, sir." It sufficiently appeared that the defendant had knowingly permitted the violation of this rule in relation to keeping this particular place dry, to such an extent as to establish a disregard of it. The plaintiff was justified in assuming that there would be no water there. For these reasons, the motion for a new trial will be overruled.

(156 Fed. 649.)

BERNARD v. ABEL et al.

In re BERNARD.

(Circuit Court of Appeals, Ninth Circuit. October 14, 1907.)

No. 1,437.

1. JUDGMENT-CORRECTION AFTER TERM-AUTHORITY OF COURT.

It is within the power of a court to amend its record of a judgment at a subsequent term to prevent injustice through a mistake or inadvertence of the judge or counsel or the clerk, as by correcting the wording of an order of dismissal which by mistake did not conform to the motion on which it was based.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 594599.]

2. SAME-NOTICE OF MOTION.

It is not a fatal objection to a nunc pro tunc order correcting a judgment on the ground of mistake that the motion therefor was not served as many days before the hearing as required by the rules of court in case of ordinary motions in suits.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 622.] 3. BANKRUPTCY-INVOLUNTARY PROCEEDINGS-DISMISSAL BY PETITIONERS.

The only issues triable in a contested bankruptcy proceeding are those of insolvency and whether the alleged act of bankruptcy has been com

mitted, and the court is not required to deny a motion by the petitioning creditors for a dismissal of the proceeding, if satisfied that it is made in good faith, because of other issues sought to be raised by the answer and which it has no power to try.

[Ed. Note. For cases in point, see Cent. Dig. vol. 6, Bankruptcy, § 136.]

Petition for Review and Appeal from the District Court of the United States for the Western Division of the Western District of Washington.

J. C. Cross, for appellant.

W. I. Agnew and G. C. Israel, for appellees.

Before GILBERT, Circuit Judge, and DE HAVEN and HUNT, District Judges.

HUNT, District Judge. On July 18, 1905, a petition in involuntary bankruptcy was filed in the District Court of the United States for the Western District of Washington, Western Division, by Veysey Bros., T. H. McKay, S. M. Heath, and W. H. Abel, praying that Joseph Bernard, appellant here, be adjudged a bankrupt under the bankruptcy laws of the United States. The principal ground for the petition in involuntary bankruptcy was that within four months preceding the filing of the petition Bernard, while insolvent, committed an act of bankruptcy, in that he transferred a portion of his property to one or more of his creditors, with intent to prefer such creditors over his other creditors, by executing and delivering to the Northwestern Lumber Company a bill of sale purporting to convey a certain logging outfit, and that the instrument of sale was made by Bernard, and accepted by the lumber company, for the purpose and with the intent to injure, delay, and defraud the creditors of Bernard. The petition in bankruptcy also alleged that, in a suit brought in the superior court of the state of Washington by Veysey Bros. against said Bernard, the personal property just described—that is, the logging outfit-was attached, and was thereafter claimed by the Northwestern Lumber Company, and that in an action duly brought by it a judgment was rendered that, by the bill of sale referred to, it became the owner of the said property, and that said attachment was thereby released, and that certain real estate had been attached, but that petitioners in bankruptcy, Veysey Bros., had released said attachments, and in their petition in involuntary bankruptcy had expressly waived any right under the said attachments. Bernard answered the petition, denying any indebtedness to the petitioners, denying insolvency, and denying that he had committed the act of bankruptcy set forth in the petition. He also set up that about March 31, 1905, Veysey Bros. brought suit against him upon the alleged indebtedness referred to in their petition, and that they had wrongfully caused an attachment to be issued in said suit, wrongfully levied upon certain of his property, and that the attachment was one in full force and effect when the petition in bankruptcy was filed, and that the claim of Veysey Bros. was a disputed and unliquidated one. Bernard objected to being declared a bankrupt, and prayed that the questions involved should be tried by jury.

Replication in due form was filed by the creditors who had petitioned in the proceeding in bankruptcy. On May 4th the petitioning creditors moved the court to dismiss the proceedings "without right to further prosecute.' The motion recited that it was made for the reason that, since the filing of the petition, the bankrupt had been engaged in business, and was then in a position to pay, and had stated his willingness to pay, the debts of the petitioning creditors, on account of which the proceeding was instituted. On May 28th Bernard filed an affidavit objecting to the allowance of the motion for a dismissal of the proceeding. The objections of Bernard were based upon the following grounds: That the proceeding had been brought without just cause; that, when the petition was filed, he was and ever since had been engaged in a profitable business; that he had been and then was in a position to pay his debts to petitioners, and had stated his willingness to pay any sum or sums due, and owing by him to petitioners. He further set forth that he had paid certain of the petitioners amounts found due, and, furthermore, that, when the petition in bankruptcy was filed, there was pending in the superior court of the state of Washington a suit brought by Veysey Bros. involving a claim made the basis of the petition in bankruptcy; that the amount of the claim was in issue, but that he had expressed his disposition and willingness to pay to Veysey Bros. any amount justly due. He then set forth that he had been damaged by reason. of the proceedings, and that, upon proper proceedings, he was willing that the matter be dismissed, but he insisted "that such dismissal be upon the answer of this affiant made and served herein, as aforesaid." Thereafter, on June 13th, the court entered a judgment of dismissal. The judgment recited that the matter came on regularly to be heard on motion of the petitioning creditors, "praying for a dismissal of this petition without right to further prosecute"; and thereupon it was ordered "that the petition herein be, and the same is, dismissed without right to further prosecute their claims." Thereafter, on September 19th, the petitioning creditors moved the court. that the order of dismissal be modified so as to show that the right of the petitioning creditors to sue upon their claims in the state courts was preserved by limiting the right to further prosecute, referred to in said order, to bankruptcy proceedings. Notice of this motion to modify was served on September 19, 1906, upon the attorney for Bernard by leaving a copy with him in his office at Aberdeen, Wash. Thereafter, on September 26th, Bernard filed a special appearance. and objections in the matter of the motion for the modification of the judgment of dismissal. He objected because the time designated in the notice of hearing of the petition for modification was not a rule day; that the notice of hearing was not sufficient under the rules of practice of the bankruptcy court. In his appearance, however, it was set forth that, if the special appearance was not sanctioned, he would, subject to exceptions, appear generally within the time allowed there for by the law or by order of the court, and plead. The court overruled the objections, and denied the request for the allowance of time to appear generally and plead. Exceptions were allowed. Thereafter, on the same day, the court entered an order