of the land, or, if so advised, and his contract for the purchase of the land was valid and enforceable, he could have refused the conveyance tendered by Taylor & Son as executed by Maxson and compelled specific performance of his contract. However, he did not elect either of these remedies, but, while attempting to repudiate the conveyance as made by Maxson, he has parted with the title to the property thereby conveyed to him in recognition of its validity as a conveyance. Having thus recognized the validity of the conveyance, his contract in writing, as expressed by the conveyance, must control. From all the evidence in the record the master found the price to be paid by Babcock for the land was the sum of $2,000 and the acceptance of a conveyance of the land subject to the mortgages, aggregating $6,500, and not the sum of $7,000, as contended by Babcock. From an examination of the record I am convinced the report of the special master in this regard is correct, and therefore the exceptions to the report must be overruled, and the same confirmed.

A decree will be entered in favor of complainants against Taylor & Son for the sum of $500, and interest received by them as part purchase price of complainants' land.

A further decree in favor of complainants awarding to complainants the promissory note of $2,000, and second mortgage executed by Maxson to Lewis A. Withers, received by Taylor & Son as part purchase price of complainants' lands.

A further decree will enter foreclosing this mortgage subject to the lien of the mortgage held by the Union Central Life Insurance Company.

The decree will further provide if the amount of this promissory note of $2,000 and the costs of this litigation are not paid within 30 days from the date of the decree, a special master to be appointed by the court will, in conformity with the practice in this court, advertise and sell the real estate in satisfaction of the amount found due upon said promissory note and the costs of this litigation.

It is so ordered.

(160 Fed. 887.)

LAKE v. SHENANGO FURNACE CO.

(Circuit Court of Appeals, Eighth Circuit. March 14, 1908.)

No. 2,614.

1. MASTER AND SERVANT-NEGLIGENCE-ASSUMPTION SERVANTS-FACTS.

The deceased and two fellow servants had been operating a hand hoist and lowering timber with it into the shaft of a mine for about a month, when the master directed him to operate it with one co-workman, and he did so without objection. The hoist consisted of a chain attached to a rope which ran over a pulley suspended to a tripod above the shaft, and the other end of the rope was attached to a drum by which the rope was wound up by the use of adjustable cranks on the ends of the drum, and the descent of the load was controlled by a friction brake applied to the drum by a lever. After the chain was fastened around the load, it was necessary to wind the rope up until it was taut, and to apply the brake upon a signal from the chainman before the load slid or swung into the shaft, because it was so heavy that the workmen could not hold it up with the cranks. After six or seven loads had been safely lowered by the two men, the deceased, who was acting as chainman, directed his fellow workman to continue to wind up the rope so long that it slid the load into the shaft before the brake was applied. Held, the deceased assumed the risk of operating the machine in this way with but one assistant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 559-566.

Assumption of risk incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.]

2. SAME EVIDENCE OF CHANGE AFTER ACCIDENT INADMISSIBLE.

Evidence that after an accident a master employed more men, repaired his machinery, or adopted a different method in the conduct of his business, is inadmissible to prove his negligence at the time of the ac cident.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Master and Servant, § 918.]

3. EVIDENCE-OPINION EVIDENCE WHEN INADMISSIBLE.

When an issue, its subject-matter, and the facts which condition its decision are simple and open to the common understanding so that no special skill or experience is requisite to form a correct judgment upon it, the opinions of witnesses regarding it are not admissible.

4. NEGLIGENCE-TRUE TEST OF DOUBTFUL ACT CARE PERSONS OF ORDINARY PRUDENCE USE UNDER SAME CIRCUMSTANCES.

An act or omission may be in itself clearly negligent or clearly free of negligence. If its character is doubtful, the test of actionable negligence is the degree of care which persons of ordinary intelligence and prudence commonly exercise in the same circumstances. If the care exercised in

such a case rises to or above that standard, there is no actionable negligence; if it falls below that standard, there is.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 1-7.]

5. SAME EVIDENCE OF ORDINARY PRACTICE OF REASONABLE MEN IN SAME CIRCUMSTANCES GENERALLY COMPETENT.

In such a case the evidence of the ordinary practice and of the usual custom, if any, of ordinarily prudent and intelligent persons in the performance under the same or like circumstances of the same or like acts, is ordinarily competent upon the issue of negligence in the performance or omission of an act.

(Syllabus by the Court.)

In Error to the Circuit Court of the United States for the District of Minnesota.

This is an action for damages that resulted from the death of John K Laurila, which the plaintiff below alleged was caused by the negligence of the defendant company, his master, in that it employed only two when it should have hired three servants to operate the drum used at its shaft No. 2 to lower timber into its mine. The defenses were that the defendant was not negligent, that the deceased asssumed the risk of operating the drum with two men, and that he was guilty of negligence which contributed to his injury. At the close of the evidence the court instructed the jury to return a verdict for the defendant, on the grounds that the deceased assumed the risk of the work in which he was engaged, and that he was guilty of contributory negligence. This and many other rulings are specified as errors. The evidence relative to the place and circumstances of the accident was practically without contradiction, and it disclosed this condition of things:

The accident happened while Laurila and his companion, Tikka, were preparing to let a load of lagging down into the shaft during the afternoon of January 17, 1906. Laurila had been engaged in this work during the afternoons since about the middle of December, 1905, but prior to this day he had been one of three men operating the drum to lower the timber into this shaft, while on the day of the accident he was one of two. The shaft was about 6 feet by 8 feet, 137 feet deep, planked inside, and it had a crib or collar of timber which extended up above the ground a few inches. It was known as shaft No. 2. A tripod made of three posts rose over the shaft, and from it a bolt depended directly over the center of the shaft and about 19 feet above its mouth, to which a pulley was attached, over which the rope ran that was used to lower the timber. A small chain which was used to fasten the timber together and to hold it as it descended into the shaft was fastened to the end of this rope which hung from the pulley over the shaft, and the oth

er end of the rope was secured to a drum which stood upon posts about three feet above the ground on one side of the shaft and about four feet distant from it. This drum was about 7 feet long and 16 inches in diameter where the rope wound about it. Upon one end of this drum was a friction brake operated by a lever five or six feet long, which rested upon the drum, and was made effective by pressing the cuter end of it down. When the drum was used to wind up the rope, this lever was held above it by hand or by a stick placed under it, and, when a load was about to be lowered, the support was removed, the lever placed the brake upon the drum, and the descent of the load was controlled by an operator who pressed down upon the outer end of the lever. There was an adjustable iron crank about 18 inches long upon each end of the drum which was used to wind up the rope and to prepare the loads of timber for their descent, but which was removed before these loads were let down into the mine. Treating the apparatus from the station of a person standing on the side of the shaft opposite the drum and facing the latter, there was a stick of timber about six feet long and four inches thick which lay parallel to the collar on the right side of the shaft. The load to be lowered at the time of the accident was about two feet square, and it consisted then, and the loads were generally made up of posts and lagging from six to nine feet long which were laid across the collar of the shaft and the stick of timber so that they projected over the collar about a foot and rested upon the timber and upon the collar which was somewhat worn away, or upon the ice or snow which had gathered between the collar and the stick, so that the chain could be readily passed around each of the ends of the loads without raising them. It was winter, and some ice and snow had gathered about the shaft and upon the posts and lagging, and the surface where the load was placed sloped at the rate of about six inches to eight feet toward the shaft. The load which caused the accident weighed from 750 to 1,500 pounds. The loads lowered into this and other like shafts were generally so heavy that two workmen at the cranks could not hold one of them up after it swung over the shaft, and the only means of controlling its descent was the friction brake. When three men operated the drum, the first held up and upon a signal from the chainman applied the brake, the second adjusted the chain first around the end of the load in the mouth of the shaft, and next around the other end, and then held on to it with his hand until the third man, who operated one of the cranks, took the slack out of the rope and drew it taut by winding it upon the drum. When the rope was thus drawn sufficiently taut, upon a signal from the chainman, the first man pressed down upon his lever, and held the load, the third man removed his crank, the chainman let the rope go, went behind the load, and by lifting its rear end slid or pushed it into the shaft, and the first man then lowered it and controlled its descent by operating the brake. When two men used it, the brake lever was held up by a stick beneath it. One of the men adjusted the chain about the ends of the load, then held on to the rope or chain to steady it with one hand and on to one of the cranks with the other until under his direction the second man had wound the rope sufficiently taut by the use of the other crank. Then, upon a signal from the chainman, the second man removed his crank, removed the stick beneath the lever, seized the lever, and held the load with it until the chainman removed his crank, and slid or pushed the load into the shaft, when the second workman controlled and lowered it by the manipulation of the brake lever.

At the time of the accident the brake was held off the drum by a stick beneath the lever. Tikka and Laurila had lowered six or seven loads down the shaft without the aid of any third workman, with Tikka at the chain and Laurila at the crank, when Tikka took the crank and Laurila adjusted the chain and held onto it with one hand to steady it and onto the crank on his end of the drum with the other until the rope was wound up on the drum to some extent when Tikka inquired of Laurila if it was good, or in other words, if the rope was sufficiently taut, and Laurila replied: "No; wind it a little more." Tikka did so, the load slid into the shaft, the drum and the cranks escaped from the workmen as the load descended, one of the revolving cranks struck Laurila, threw him into the shaft, and killed him.

Theodore Hollister (John R. Heino, on the brief), for plaintiff in

error.

H. H. Grace (George B. Hudnall, on the brief), for defendant in

error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN, Circuit Judge (after stating the facts as above). The evidence in this case conclusively proved that there was one and only one indispensable condition of safety in the doing of the specific act in the performance of which Laurila lost his life in the lowering of the loads of timber into the shaft, and that condition was that the load should not be slid, or pushed, or swung into or over the shaft until the brake was applied to the drum by means of its lever. If the load went into the shaft before the brake was applied, it would as certainly descend and produce danger of injury and death when three as when two men were operating it, for the law of gravity is uniform and incessant in its work. The loads differed in size and weight, but both at this and at other shafts where similar devices were used they were generally, if not universally, so heavy that they could not be held up by the cranks upon the drums after they swung over the shafts, and this fact was well known to all the workmen about them, and was clearly proved to the jury. This was the reason why the friction brake was provided and used.

The evidence was uncontradicted that it was necessary before the load was swung over the shaft and after the chain had been thrown around its ends that the rope should be wound up so that it was taut, to the end that the timber might be drawn together in a compact body before it started to descend, so that sticks of it would not slip out of the chain and fall down the shaft. The evidence was clear and undisputed that it was the duty of the chainman to steady the chain with his hand as the rope was wound up, to determine when the tension upon it was sufficient to hold the timber together, and insufficient to slide, or tip, or swing the load into the shaft, and then to give the signal to take off the crank and put on the brake, and, after that was done, to push or slide the load into the shaft. This entire duty devolved upon the chainman whether there were two or three men at the shaft, and, in the discharge of this duty, was the one place where the exercise of judgment conditioned the safety of the operation. If the chainman failed to give the signal that the chain was sufficiently taut until the tension became so great that the load slid or swung into the shaft, immediate danger of injury was produced, and that danger was greater when but two men were operating than when there were three, because, if there was a third man at the lever, it was possible that he might catch and hold the load after it swung into the shaft, although he did not receive any signal to apply the brake. The apparatus was simple. It was nothing but a windlass with a crank and a rope attached, the latter of which ran over a pulley above. No workman of intelligence sufficient to use the simplest tools could have assisted in operating this windlass with two la

borers for a month and with one for an hour as Laurila did without plenary knowledge that the law of gravity would draw the load down the shaft if it was permitted to swing over it; that in such an event it could not be held up with the cranks; that the application of the brake before the load slid or swung into the shaft was indispensable to the safe operation of the machine; that he had but one assistant at the time of the accident; that, when he operated the chain, the timely application of the brake depended entirely upon his judgment and his signal; and that, if he failed to rightly exercise the former or to give the latter in time, disaster and injury were the natural and probable consequences of his dereliction. Yet, without objection or protest, he entered upon the discharge of the duty of chainman with a single assistant, and by his failure to give the signal to his companion to cease winding up the rope and to put on the brake until the latter had wound it so taut that it lifted or slid the load into the shaft he brought down upon himself the direful result.

A servant by entering or continuing in the employment of a master without complaint assumes the risks and dangers of the employment which he knows and appreciates. St. Louis Cordage Co. v. Miller, 61 C. C. A. 477, 490, 493, 126 Fed. 495, 508, 511, 63 L. R. A. 551, and cases there cited; Glenmont Lumber Company v. Roy, 61 C. C. A. 506, 510, 126 Fed. 524, 528; Burke v. Union Coal & Coke Co., 84 C. C. A. 626, 157 Fed. 178, 180, 181. Counsel argue that the deceased did not fall under this rule because he did not know the weight of the load, because he did not know how much tension on the rope would raise the load or slide it into the shaft, and because he did not appreciate the danger from the act that he and his companion were performing that the load would slide into the shaft. They call attention to the testimony of the superintendent of the defendant that if the load lay as stated by the witnesses, and if it weighed 1,500 pounds, it could not have been sent into the mine by the use of one of the cranks by a workman because he could raise only about 300 pounds thereby, and to the testimony of the surface boss that in his opinion one man at the crank could not slide a load into the shaft if it rested on a few little projections on the top of a round surface of timber and to varying estimates made by witnesses of the weight of the load. There were, however, two men at the cranks-Tikka, who devoted all his energy to one of them, and Laurila, who used one hand upon the other. The superintendent testified that in his opinion the load weighed only 750 pounds, that a lift of 400 pounds on the rope would have sent it into the shaft, and that one man could lift 300 pounds upon the rope by the use of the crank. It follows that two men could lift 600 pounds, and, if both men exercised their powers, they could have thrown the load into the shaft. Moreover, an appreciation of the risk and danger was not conditioned by an exact knowledge of the weight of the load, or of the amount which one man could lift upon the rope by the use of one of the cranks. There was a crank upon each end of the drum and there was a man at work at