[3] The law applicable to the defense of assumption of risk under the federal Employers' Liability Act is that of the common law as it existed prior to the passage of said act, except where the common carrier has violated some section of the statute enacted for the safety of employees. [4, 5] On the issue of assumption of risk by a servant who has sustained injuries, where the evidence is harmonious and consistent and the circumstances are such that all reasonable men must reach the same conclusion, the question whether plaintiff assumed the risk is one of law for the determination of the court; but where the facts are controverted, or are such that different inference may be drawn therefrom, the question as to the assumption of risk should be submitted to the jury under proper instructions from the court. 26 Cyc. 1479; 18 R. C. L. § 166, p. 676.

Upon these issues the court instructed the jury as follows:

"(5) If you find by a preponderance of the evidence that the deceased was engaged in interstate commerce and that he was on the yards of the defendants preparatory to comemncing actual work, and that the defendants kept and maintained a pit in said yards, and by for any reason in the discharge of his said duties, to go in, around or near said pit or excavation, if you find such pit or excavation was kept, and that the defendants negligently failed to keep said pit lighted, and the deceased fell into said pit and lost his life, and that the negligence of the defendants in failing to maintain lights to light said pit was the proximate cause of the injury to the deceased, then your verdict will be for the plaintiff, unless you find for the defendants under other instructions herein given."

(Defendants except. Exceptions allowed.)

"(6) You are further instructed that if you find that from the evidence in this case that the pit alleged was open, and that the location of the same was known to the deceased, and that said pit was an instrumentality of his employment, then you are instructed that the deceased assumed the risk of the danger connected with said open pit.

"On the other hand, if you find that said pit was disconnected and was not incident to the discharge of the duties of the deceased, and was not one of the instrumentalities incident to his employment, then the deceased should not assume such risk."

(Defendants except. Exceptions allowed.)

(7) You are further instructed that in case you find that the negligent acts of the deceased, if any, contributed to his death, that such negligence, if any, on the part of the deceased would not entirely relieve the defendants of liability for his death, provided you find by a preponderance of the evidence that the defendants were guilty of negligence in keeping and maintaining such unlighted excavation or pit, but that such contributory negligence of the deceased diminishes his right to recovery in proportion to the amount of negligence attributable to said deceased employee; therefore, if you reach that point in your deliberations where you find it necessary to consider the defense of contributory negligence, that negligence of the deceased is not a bar to recovery, but that the damages shall be diminished by the jury in proportion to the negligence of the deceased as compared with the combined negligence of himself and the defendants."

(Defendants except. Exceptions allowed.)

The issue as to whether or not, at the time of the accident complained of, the deceased was engaged in interstate commerce in the sense that his status was such as to bring him within the provisions of the federal Employers' Liability Act, was made by both the pleadings and the evidence, and that issue was submitted to the jury by the court in paragraph 4 of his charge, which is as follows:

"You are instructed that if you find a preponderance of the evidence in this case that the deceased on the 2d day of November, 1915, was engaged as boiler washer in the town of Francis, Okla., in washing boilers used to haul commerce from the state of Oklahoma to another state, or from another state to the state Oklahoma, and that he register off about o'clock p. m., and that he was requested to return to wash the boiler of the pile driver, which boiler was used in hauling said pile driver, or commerce from the state of Oklahoma to another state, or from another state to the State of Oklahoma, and that in obedience to said duty he returned to the defendants' yards in Francis preparatory to entering upon the duty of washing said boiler, and that while there, waiting to further engage in duties as boiler washer, in that event he would be engaged in interstate commerce."

(Defendants except, Exceptions allowed.)

We think this instruction sufficiently informed the jury as to the law upon the question involved, and that the court committed no error in giving the same.

The defendants' requested instructions which were refused by the court 9 to 15, inclusive, were upon the question of assumed risk and contributory negligence.

The rule in the United States courts is that a servant assumes all the ordinary risks of his employment which are known to him, or which could have been known to him with the exercise of ordinary care by a person of reasonable prudence and diligence under like circumstances and that risks which are not naturally incident to the servant's occupation, but which arise from the negligence of the master are not assumed by the servant until he becomes aware of such negligence and of the danger arising therefrom, unless the negligence and the risks are so apparent and obvious that an ordinarily prudent person would, under the circumstances, observe the one and appreciate the other. C., R. I. & P. Ry. Co. v. Ward, 173 Pac. 212; C., R. I. & P. v. Hughes, 166 Pac. 411; Dickinson, Rec'r, v. Granbery, Adm'r, 174 Pac. 776; Gila Valley G. & N. Ry. Co. v. Hall, 232 U. S. 94, 34 Sup. Ct. 229, 58 L. Ed. 521; Seaboard A. L. R. Co. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; M. O. & G. R. Co. v. Overmyre, 58 Okla. 723, 160 Pac., 933; C. C., M. & O. Ry. Co. v. Roe, 180 Pac. 371, decided April 15, 1919, not yet officially reported.

[9] The defendants complain in their fifth and sixth assignments of error that the court erred in receiving the verdict of the jury apportioning the damages among the widow and minor children, and in rendering judgment upon the verdict.

We hold that there is no merit in these contentions, as a procedure in that respect has been approved in the following cases: St. L. & S. F. R. Co. v. Clampitt, 55 Okla. 686, 154 Pac. 40; Central Vermont Railway Co. v. White, 238 U. S 507, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252; Norfolk & W. R. Co. v. Stevens, 97 Va. 631, 334 S.. E. 525, 46 L. R. A. 367; I. & G. N. R. Co. v. Lehman (Tex. Civ. App.) 72 S. W. 619.

[7] The defendants complain of the ruling of the court in admitting and rejecting testimony upon the trial of this case.

We have examined the record and fail to find wherein prejudicial error is shown in the ruling of the court upon the law questions presented during the trial. The evidence in this case was conflicting, and in such cases where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial error is shown in the ins ructions of the court and its rulings upon the law question presented during the trial, the findings of the court will not be disturbed on appeal. Bunker v. Harding et al., 174 Pac. 749; Blasdel et al. v. Gower, 173 Pac,

Vol. IV-Comp. 47.

644; Shawnee National Bank v. Pool, 167 Pac. 994; Chicago, R. I. & P. Ry. Co. v. Pruitt, 170 Pac. 1143.

The judgment is affirmed.

SUPREME COURT OF OREGON.

GARVIN, ALIEN PROPERTY CUSTODIAN,

V.

WESTERN COOPERAGE CO.*

1. MASTER AND SERVANT- -COMPLAINT

SUFFICIENT WITHOUT ALLEGING MASTER'S REJECTION OF WORKMEN'S COMPENSATION ACT.

There being no presumption under the Workmen's Compensation Act as to whether the employer is subject thereto, the injured servant's complaint is not insufficient for failure to allege that defendant had elected not to come under the act, the matter being one of affirmative defense.

(For other cases, see Master and Servant, Dec. Dig. § 401.)

2. ALIENS-NONRESIDENT ALIEN'S ACTION FOR SON'S DEATH PROPERLY BROUGHT BY DIRECTION OF FOREIGN CONSUL.

Under the treaties of the United States with Austria-Hungary, the Austrian consul general has authority to direct an attorney to bring an action under the Employers' Liability Act on behalf of a mother who is a subject and resident of Austria, for the death of her son.

(For other cases, see Aliens; Dec. Dig. § 16.)

3. DEATH-NONRESIDENT ALIEN MAY SUE EMPLOYER FOR DEATH OF SON.

A nonresident alien may maintain an action, under the Employers' Liability Act, for the death of her son against his employer.

(For other cases; see Death, Dec. Dig. § 31[2].)

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow, Judge.

Action by Marja Rjacich against the Western Cooperage Company, in which Francis P. Garvin, as alien property custodian, was substituted for the plaintiff. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This is an action wherein it is sought to recover damages for the death of one Mjo Riacich, of whom the plaintiff claims to be the mother. The substantial facts, as alleged in the complaint, are that Mjo Rjacich was a member of the section crew upon defendant's logging

Decision rendered, Oct. 7, 1919. 184 Pac. Rep. 555. .

railroad; that at the time of the accident resulting in his death he was, riding upon one of defendant's engines; that at the same time other employees were loading a logging car, and that after it was partially loaded a bolt in the hand brake attached to the car broke, thereby releasing the brake, whereupon the car "ran wild," colliding with the engine upon which Rjacich was riding, and thereby caused the injuries which resulted in his death. The alleged negligence upon which the right of recovery is based consisted in spotting the car upon a dangerous and steep grade without using the necessary methods of anchoring the car during the' operation of loading it, as follows:

(1) The defendant failed to provide "snubbing lines," consisting of a steel cable, one end of which is attached to the car, and the other end to some stationary object, which would safely hold the car in place.

(2) It neglected to safeguard the car with "safety chains," with. which the car might be chained to the track.

(3) It neglected to provide safety or derailing switches with which to derail a "runaway" car.

(4) That the defendant, at the time of the accident, had a derailing switch installed below the grade where the car was being loaded, but it was spiked to the main line so as to be useless as as safety device.

(5) That it neglected to provide sound and substantial brakes on the logging car, and failed to take measures to see that the brakes were in good working condition.

The answer, after denials, pleads affirmatively as 'follows:

That on or about the 13th day of September, 1915, defendant was, and for some time prior thereto had been, conducting a logging business in Clatsop County, Ore.; that in connection with said logging business defendant operated a logging railroad; that, on or about the said 13th day of September. 1915, Mjo Rjacich was in its employ as a section hand. and at the time of his accident aforesaid he was riding on a locomotive belonging to defendant: that some distance away from the point of the accident a set of logging trucks were being loaded with logs at a logging rollway; that said trucks were practicallyy new, and had been purchased from a reputable concern, and had been manufactured by a reputable manufacturer; that the said trucks were of standard make, such as are used commonly in work of that kind, and had been properly inspected by the defendant; that each truck had a standard brake, with a brake-staff which could be tightened from the side; that when tightened the said brake-staff was held in place by means of a pawl, which fitted into a ratchet; that the said ratchet was attached to said said brake-staff by means of a metal pin, which ran through the said ratchet and said brake-staff; that while the said trucks were being loaded with logs the pin holding the ratchet attached to the forward brake-staff broke in some manner, thereby allowing the brakes to loosen from the wheels, and the said trucks, loaded with two logs, started down the track, colliding with the trucks loaded with logs attached to the locomotive aforesaid, on which locomotive the said Mjo Rjacich was riding; that by reason of said collision the said Mjo Rjacich received injuries from which he afterward died; that the pin which broke appeared amply sufficent, and was put in place by the manufacturers; that an inspection would not disclose any defect in said pin, and so far as this defendant knew, or could have known by the exercise of ordinary care, said pin was in good, first-class condition; and so far as defendant is concerned said accident was wholly unavoidable, accidental, and unforeseen, and could not have been prevented by it through the exercise of ordinary

care.

A reply having been filed, there was a trial, resulting in a verdict and judgment for plaintiff, and defendant appeals.

F. S. Senn, of Portland (Senn, Ekwall & Recken, of Portland. on the briefs), for appellant.

Charles T. Haas and M. H. Clark, both of Portland (Woerndle & Haas and A. E. Clark, all of Portland, and John T. Collier, on the briefs). for respondent Western Cooperage Co.

A. P. Dobson, of Portland, for respondent Garvin.

BENSON, J. (after stating the facts as above). [1] The first assignment of error is that the complaint is insufficient because it fails to allege that defendant had elected not to come under the Workmen's Compensation Act (Laws 1913, c. 112). The contention thus presented has been settled adversely to defendant's theory in Olds v. Olds, 88 Ore. 209, 171 Pac. 1046.

[2] It is then urged that the court erred in permitting plaintiff's attorney to testify that he was authorized and requested to commence the action in behalf of plaintiff at the request of and under the direction of the Austrian consul genera. The objection to this evidence was based upon the ground that under the statute no one but the mother is entitled to bring action, and that the consul cannot authorize the proceeding. This question also has been set at rest in the recent case of Ljubich v. Western Cooperage Co., 184 Pac. 551 (not yet officially reported), wherein it is held that, under the treaties of the United States with Austria-Hungary, the consuls of that country are, in effect, ex officio attorneys in fact, with ample authority in cases like the one at bar.

[3] The next assignment is that the court erred in holding that the plaintiff can maintain this action, being a nonresident alien. Although this question has been frequently discussed and passed upon in many other states, this is the first time that it has been presented for our consideration. The leading case in the United States supporting defendant's theory of the law is that of Deni v. Pennsylvania R. Co., 181 Pa. 525 37 Atl. 558, 59 Am. St. Rep. 676, which has been followed by a few of the other states, notably Wisconsin and Indiana, but a great majority of the states have held to the contrary. A leading case in support of plaintiff's right to maintain the action is that of Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309, wherein the court, speaking by Mr. Chief Justice Holmes, says:

"In all cases the statute has the interest of the employees in mind. It is on their account that an action is given to the widow or next of kin. Whether the action is to be brought by them or by the administrator, the sum to be recovered is to be assessed with reference to the degree of culpability of the employer or negligent person. In other words, it is primarily a penalty for the protection of the life of a workman in this state. We cannot think that workmen were intended to be less protected if their mothers happen to live abroad, or less protected against sudden than against lingering death. In view of the very large amount of foreign labor employed in this state, we cannot believe that so large an exception was silently left to be read in."

In the comparatively recent case of Anustasakas v. International Contract Co., 51 Wash. 119, 98 Pac. 93, 21 L. R. A. (N. S.) 267, 130 Am. St. Rep. 1089, the Supreme Court of Washington in an interesting opinion, wherein are cited a large number of the cases supporting either contention, speaking by Mr. Justice Rudkin, says:

"The plea of alienage is not favored in law, and we are of opinion that the rule which permits nonresident aliens to maintain actions of this kind is supported by the weight of authority, and is more in harmony with the liberal cosmopolitan spirit of the age than the narrow, provincial rule which would close our courts to widows and orphans solely because they happen to be nonresident aliens."