er witnesses who were present at the time, I work in the same way as other ripsaws in and gave testimony with reference to this the factory were doing. It is a well-estabfact. We must presume that this question lished principle of law that the servant, was squarely submitted to the jury, being one when he accepts the service, assumes all of the material issues involved in the trial the risk incident to the employment; that of this cause, and the verdict of the jury is, incident to the employment when the with reference to that fact would be conclu- employer furnishes proper and reasonably sive and binding upon this court. safe machinery, an obligation to do which is always upon the master. A risk or accident which arises from the use of defective machinery is not a risk incident to the employment. Harvey v. Alturas Gold Min. Co., 3 Idaho, 510, 31 Pac. 819. Did the plaintiff, as a matter of law, assume whatever risk, if any there was, incident to his employment by the defendant corporation? From the testimony it appears that the defendant corporation received, in a knocked-down condition, a short time prior to the time that the plaintiff entered its employment, a ripsaw and other apparatus appurtenant thereto, and, before the ripsaw was set in place in the mill, there was some conversation had between the general superintendent and the foreman of the company with reference to certain defects in the ripsaw which consisted in the abnormal length of the saw table in front of the saw, rendering it exceedingly difficult to operate, and another peculiarity that was discussed by the superintendent and the foreman at the time was the lightness of the frame. But, notwithstanding these defects, it was installed by the foreman, under the instructions of the uperintendent, with directions to make certain minor alterations in order to shorten the distance between the end of the table at which the operator stood and the saw, and which it appears from the testimony was later done. Immediately after the saw was installed, it was noticed by the foreman and other employés of the mill, those who were called upon to operate the machine and others who saw it in opertion, that the vibration of the saw, saw frame, and saw table was excessive, that the motion was up and down and sideways; in other words, that its vibration was such that it moved about in all directions. effort as made to remedy this condition, which was only partially successful. The plaintiff in this case had nothing to do with the operation of the saw in question, but was employed as a saw filer, tool sharpener, and adjuster, and just before the accident the plaintiff was engaged in this employment. It is therefore apparent from the testimony that the defendant knew at the time when the ripsaw in question was received from the factory in its knocked-down condition that it was different in its construction from the ripsaws then in use in its factory, or the ordinary ripsaw used for the purpose of doing the work that was done by that character of machinery; and it is further apparent from the testimony that when the ripsaw in question was put up and placed in operation, it was not so construct ed that it worked as it should have done, or as an ordinary ripsaw worked, and as a result of this fact efforts were made by the superintendent and the foreman to so support the machine that it would perform the An The question of whether or not the machinery when installed was unsafe, and while in operation endangered the lives of the employés of the defendant company, was a question of fact for the jury to determine; and also the question of whether or not the defendant company or its officers had knowledge of the defects in the machinery, and the danger incident to its operation, was equally within the province of the jury. The plaintiff was not required, in order to protect himself from a charge of contributory negligence, or to relieve himself from responsibility for the negligent act of a fellow servant, to first go over and familiarize himself with each piece of machinery in the factory of the defendant, where it is apparent from the testimony that the master failed to provide his servants with suitable machinery and appliances with which to perform their work. The law makes it the duty of the master to make all needed inspections and examinations; and when the defendant in this case installed a piece of machinery that was different in its general construction from machinery of a similar character already installed in its factory, and which would require greater care in its operation, coupled with greater hazard, though of standard make, but, when in operation, it was apparent that it was unsafe, and this was known to the defendant, or by the use of ordinary care could have been ascertained by the defendant or its agents, it cannot excuse itself upon the ground that the plaintiff assumed the risk, and that as a matter of law the plaintiff could not recover. Section 66, Labatt, Master and Servant, in discussing this principle, says: "That no person has a right to keep his property in such a condition that persons who with his consent are brought into close relations with it will be likely to receive injury, even though they may exercise all the care which it is justifiable to expect from them under the circumstances." And this doctrine is supported by the decision in the case of International & G. N. R. Co. v. Clark (Tex. Civ, App.) 125 S. W. 959: "A master cannot plead assumed risk where the ground of the plea is knowledge or means of knowledge of the defect complained of, where the master has knowledge of the defect, or the superior of the employé intrusted with the duty of repairing the defects knows thereof, and the servant is not under duty to report the 365, 1 L. R. A. 173. We think that there is defect." There is some evidence in the rec- a distinction between the rule which makes ord which might tend to show that the plain-it incumbent upon the operator of the matiff had knowledge of the defects of the machine, or that he was placed in a position so that if he had used ordinary care he could have had this knowledge. But we think the rule of law well established that a master cannot plead such knowledge upon the part of a servant if he himself had a knowledge of the defect, and failed and neglected to repair the same, and that by reason thereof the plaintiff sustained the injury. "Risks ordinarily incident to the work is * * a risk or injury that does not grow out of an act of negligence on the part of the defendant." Freeman v. Fuller (Tex. Civ. App.) 127 S. W. 1194. "A servant assumes only those hazards which are natural incidents of the employment. Tools which are dangerously defective are not the natural incidents of any employment. It is the master's absolute and unassignable duty to supply safe ones." M., K. & T. Ry. Co. v. Quinlan, 77 Kan. 126, 137, 93 Pac. 632636. We think that the syllabus of the case of Buoy v. Milling Co., 68 Kan. 436, 75 Pac. 466, furnishes us the proper rule, when applied to the facts in this case, and that is that "the furnishing of a safe place to work, and safe appliances with which to do the work, are among the absolute duties of the master; and unless the servant's attention is drawn to defects, or the dangerous conditions of the place or the appliances furnished, or he should have known of them, he is not required to make an investigation, but may rest upon the assumption that the master has performed his duties in these respects." The furnishing of a safe place to work and safe appliances with which to do the work are among the absolute duties of the master. From the testimony in this case a fair inference may be drawn that these duties were not performed upon the part of the defendant in this case, and we do not believe that it can be successfully contended that the attention of the plaintiff in this action was called to the condition of the machine before it was set up, or after it was set up, or that he knew of the support that had been placed under the machine in order to prevent or lessen the vibration, or that he was in a position so that he must have known of the condition of the machine with reference to these defects. Where different opinions might well be entertained upon the question of whether the plaintiff must have seen, or whether his attention was called to the defects (and different opinions might well be entertained upon these questions), the question was one for the jury, and was properly submitted to the jury, who found adversely to the defendant. See Mo., K. & T. Ry. Co. v. Quinlan, 77 Kan. 126, 93 Pac. 632-636; Sherman v. Menomi chinery to know or to use reasonable diligence in ascertaining the condition of the machinery that he is called upon to operate, and he would be held to a stricter rule with reference to assumption of risk than an employé whose duties did not require him to operate the machine; and we do not think that he would be required to familiarize himself with the machinery or its appliances, and he would be entitled to presume that his safety had been reasonably provided for. In the case of Moran v. Harris, 63 Iowa, 390, 19 N. W. 278, the Supreme Court of Iowa holds that “an employé, by remaining in the service of his employer without objection, assumes the risk of such dangers as are occasioned by defects in the machinery about which he is employed, of which he has knowledge, or by the exercise of reasonable diligence might gain knowledge. But, when the employé is not engaged to work with the machinery, he is not bound by this rule." There is no testimony that would warrant this court in holding that the plaintiff was working with the machinery from which the accident resulted in this case. It is admitted in the answer of the defendant that the plaintiff was engaged in a different line of occupation, to wit, saw filer, tool sharpener, and adjuster. We are of the opinion that the question of whether or not the machine was defective or unsafe, and was known by the defendant to be unsafe at the time of the accident, were questions of fact, to be submitted to the jury. See Wheeler v. Wason Mfg. Co., 135 Mass. 294. "Where there is any evidence of the master's negligence, and that it was the proximate cause of the injury complained of, the issues must be determined by the jury, and an appellate tribunal will not disturb the verdict, unless manifestly against the clear preponderance of the evidence. Where the evidence on an issue is such that reasonable minds may differ in their conclusions drawn from it, the verdict of the jury must be taken as conclusive." Producers' Oil Co. v. Barnes (Tex. Civ. App.) 120 S. W. 1023. See, also, German American Lbr. Co. v. Brock, 55 Fla. 577, 46 South. 740; Kaukola v. Oliver Min. Co., 159 Mich. 689, 124 N. W. 591. In the case of Thomas v. Exeter H. & A. St. Ry., 73 N. H. 1, 58 Atl. 838, the plaintiff, an employé of the defendant, was injured while operating a steam ironing machine or mangle by hav ing her right hand caught and drawn between two inwardly revolving cylinders. The court says: "It is the province of the jury to sift and weigh conflicting evidence, and find the truth. Generally they are greatly aided in performing this service by the appearance of the witnesses. There was evidence from which, if believed, reasonable and impartial men might properly find that the We un that her injury would not have happened but I required more than ordinary skill. for a sudden swaying of the machine to-derstand the general rule to be in cases of wards her, owing, among other things, to this kind, as expressed by Judge Story, defective gearings and instability of the ma- "that a verdict will not be set aside in a chine supports-defects of which she did not case of tort for excessive damages, unless the actually or impliedly have knowledge, so far court can clearly see that the jury have comas appears, and the risk of which she did mitted some very gross and palpable error, or not assume as matter of law." In the case have acted under some improper bias, inof Atchison, T. & S. F. R. R. Co. v. McKee, fluence, or prejudice, or have totally mis37 Kan. 592, 15 Pac. 484, the court says: taken the rules of law, by which the dam"Whether this injury of the plaintiff was an ages are to be regulated.' In such cases the accident, or the result of the defective con- court should consider whether the verdict is dition of a machine of the defendant, was fair and reasonable and in the exercise of submitted to the jury. By their verdict we sound discretion, under all the circumstances may safely infer that they found it was of the case; and it will be so presumed uncaused by the negligence of the defendant, less the verdict is so excessive or outrageous rather than by an accident. There is testi- with reference to those circumstances as to mony to sustain the verdict, and we do not demonstrate that the jury have acted against feel at liberty to disturb it." the rules of law, or have suffered their passions, their prejudices or their perverse disregard of justice to mislead them." 13 Cyc. 121. There is no question from the testimony in this case but that the plaintiff is permanently injured, that he will not be able during the balance of his life to perform manual labor, and will be dependent wholly upon the amount of the verdict recovered in this case or the charity of his friends or relatives for his support and maintenance. The character of the testimony offered at the trial with reference to this phase of the case, the eminence of the physicians who testified, and the condition of the plaintiff at the time of the trial establish to our minds that we are right in the position we take with reference to that matter. There is no evidence or intimation in the record that the jury acted by reason of any bias or prejudice or that the instructions given by the court were not in keeping with the evidence adduced at the trial upon this question. It will therefore be presumed that the jury, after hearing all the testimony and receiving the instructions of the court with reference to the matter of There are numerous other cases we might cite in support of this doctrine, but in conclusion we think that the question has been settled by this court, and in the language of Justice Stewart in the case of Wheeler v. Oregon R. R., etc., Co., 16 Idaho, 375, 102 Pac. 347: "It is generally conceded by the authorities that the question of negligence may be one of law or law and fact. If from the evidence different minds of prudent and reasonable men might come to different conclusions as to whether there was negligence, then the question is one of fact to be submitted to the jury under proper instructions; but, if only one conclusion is deducible from the facts, then the question becomes purely a question of law." If, then, from the facts detailed by the evidence in this case reasonable and prudent men might disagree as to whether the company was negligent in installing or in permitting the operation of the ripsaw, in the condition it was at the time the accident happened, it would become a question of fact, to be determined by the jury under proper instructions; and we must presume that this phase of the case was prop-damages, took into consideration all of the erly submitted to the jury by the trial court. See, also, Herbert v. S. P. R. R. Co., 121 Cal. 227, 53 Pac. 651; Wahlgren v. R. R. Co., 132 Cal. 656, 62 Pac. 309; Peters v. McKay, 136 Cal. 73, 68 Pac. 478; McAlpine v. Laydon, 115 Cal. 68, 46 Pac. 865. The evidence was sufficient to justify the jury in returning a verdict for the plaintiff. This brings us to a consideration as to the alleged excessive character of the verdict rendered in this case. The plaintiff asked for a judgment for $15,000. The jury returned a verdict for $12,500. The plaintiff was 45 years of age at the time of this accident. He was earning $3.75 per day, and was an ablebodied man, capable of performing labor that elements of damage set out in the instructions of the court, the pain and the suffering, the expense incident to the sickness of the plaintiff, the fact that the plaintiff would be incapacitated from performing manual labor, and that he was permanently injured; and we do not feel that we should interfere with the conclusion of the jury in this respect. See Maloney v. Winston Bros. Co., 18 Idaho, 740, 111 Pac. 1080. The judgment of the lower court is therefore affirmed. Costs are awarded to the respondent. STEWART, C. J., and AILSHIE, J., con cur. (19 Idaho, 504) (Syllabus by the Court.) 1. PREVIOUS DECISION EXPLAINED. Irrigation Dist. v. Brose, 11 Idaho, 474, 83 Pac. 499, was decided under the provisions of the irrigation act of 1903 (Sess. Laws, p. 150). Section 11 of that act required the board of directors to commence special proceedings to confirm the assessment of benefits, and section 15 of that act required a like proceeding for the approval of any proposed bond issue. Section 16 of said act contains the general provisions now found in section 2401, Rev. Codes, and provides that the board of directors of an irrigation district may go into the district court for a confirmation of all of the proceedings in regard to the organization of a district, and the entire proceedings may be confirmed in one action. 2. WATERS AND WATER COURSES (§ 225*) IRRIGATION DISTRICTS-ESTABLISHMENT RECONFIRMATION. Where confirmation proceedings were had of the organization of the district and thereafter assessment of benefits was made, and a proceeding brought for the confirmation of such as essment, and a reconfirmation of all the proceedings in connection with said district, the application for a reconfirmation did not waive any benefits secured to the district by the confirmation. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 225.*] 3. WATERS AND WATER COURSES (§ 225*)-IR- Under the following provision of section 2377, Rev. Codes, to wit: "No action shall be commenced or maintained, or defense made affecting the validity of such organization after two years from and after making and entering said order" (the order referred to being the one made by the board of county commissioners declaring the due organization of an irrigation district) the time is limited to two years in which any action may be commenced or maintained, or defense made, affecting the validity of the organization of such district. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 225.*] 4. WATERS AND WATER COURSES (§ 225*)—IR- court. LIMITA [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 225.*] 6. LIMITATION OF ACTIONS (§ 175*)-WAIVER OF BAR. Held, that the filing of a petition for reconfirmation of proceedings for the organization of an irrigation district does not waive the statute of limitations. [Ed. Note.-For other cases, see Limitation of Actions, Dec. Dig. § 175.*] 7. WATERS AND WATER COURSES (§ 225*)-IRRIGATION DISTRICTS-PROCEEDINGS TO CONFIRM ORGANIZATION. sioners did not declare the district duly organThe fact that the board of county commisized on the day that they canvassed the vote cast for the organization of the district does not affect the order declaring the organization of the district. [Ed. Note.-For other cases. see Waters and Water Courses, Dec. Dig. § 225.*] 8. WATERS AND WATER COURSES (§ 225*)— Where it appears to the court in the proceedings for confirmation that said district contains some lands not benefited, the court has jurisdiction to exclude such lands. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 225.*] Appeal from District Court, Bingham County; James M. Stevens, Judge. Action by the Progressive Irrigation District against Christian Anderson, to have confirmed the organization of the district and the issuance of bonds thereby. Judgment of confirmation, and defendant appeals. Affirmed. O. E. McCutcheon, for appellant. Otto E. McCutcheon, for respondent. It appears that the district court of Bingham county had confirmed the proceedings If the district officers do not move to have for the organization of said district on Nothe proceedings for the organization of such ir-vember 17, 1909, in which decree the court rigation district confirmed within two years, found that all of the proceedings had been any one interested may by proper action have From that the question as to the legality of the organiza- regular and according to law. tion of such district determined by the district petition it appears that on June 8, 1907, the petition for the organization of said district was filed with the board of county commissioners of said county; that said district was in Bingham and Fremont counties, the greater part being in Bingham county. Notice of intention to present the petition to said board at its regular July meeting, 1907, was duly given, and the petition was presented at said meeting. The hearing thereon was ordered for August 6, 1907, and the clerk of said board gave due notice thereof. The proper papers were filed in the state engineer's office more than four weeks before said date. Upon said day the state engi 5. WATERS AND WATER COURSES (§ 225*)-IRRIGATION DISTRICTS - ORGANIZATION-CONFIRMATION. The provisions of the statute concerning the confirmation of all proceedings in the organization of such districts were enacted for the object and purpose of binding the state as well as all others in regard to all of the proceedings for the organization of such districts, their boundaries and the land included therein, and to set at rest at an early date the legal existence of the district. [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 225.*] this case, with the required exhibits attached, was filed October 1, 1910, and on the same day the court made an order for a hearing on November 7, 1910, due notice of which was given. General default was entered November 21, 1910, against all defendants except appellant, who demurred November 10, 1910. His demurrer was overruled on November 21, 1910, and on the same day the court entered a decree of confirmation, confirming and reconfirming all of the proceedings had in the organization of said district. The decree confirms the organization of said district, the issue of said bonds, and the assessment of benefits. This appeal is from said judgment and decree and the whole thereof. In limine we will state that the decision in the case of Irrigation District v. Brose, 11 Idaho, 474, 83 Pac. 499, was a confirmation proceeding under the irrigation act of 1903 (Sess. Laws, p. 150). Section 11 of that act required the board of directors to commence proceedings to confirm the assessment of benefits; section 15 required said board to commence special proceedings for the approval of any proposed issue of bonds; and section 16 of said act contains the general provisions now found in section 2401 of the Revised Codes, and provides that the board of directors of an irrigation district may go into the district court for confirmation of all of the proceedings, and the entire proceedings in regard to the organization of a district may be confirmed in the one action. While the laws of 1903 do not expressly authorize separate confirmation proceedings at different stages of the matter, said act, as amended by section 2401, Rev. Codes, authorizes a proceeding for confirmation after the organization of the district is completed, or after the authorization of bonds, and again after subsequent proceedings. In some respects the act of 1907 (Sess. Laws, p. 484) is declaratory of the law as it existed in California. See Board of Directors v. Tregea, 88 Cal. 334, 26 Pac. 237. neer's report had not been received and said | ing given the notice required by section 2400, board adjourned the hearing until September Rev. Codes. The petition for confirmation in 2, 1907, and on the last-mentioned date a further adjournment was taken until the 14th of October, 1907. Due notice of said adjournments were given. The board considered the matter on October 14th, and, there being no objection to the organization of said district, an election was ordered to be held December 18, 1907, and notice thereof given by publication in two newspapers. Said election was held on that date and on December 23, 1907, the county commissioners met and canvassed the vote and found the result to be 74 in favor and 2 against, and further found that John Empey, James E. Steele, and J. H. Emery had been elected directors. The board of county commissioners, however, did not make their order declaring the district organized until their regular meeting, January 13, 1908. The directors of said district, at a meeting, held October 6, 1908, formulated its general plan and concluded that it was necessary to issue bonds in the sum of $350,000, and on February 5, 1909, ordered an election to determine the question of issuing said bonds, which election was held on March 22, 1909, pursuant to notices given, and resulted in favor of the bonds, 91 votes to 18. A petition was filed in the district court of Bingham county on October 11, 1909, praying for the confirmation of the organization of said district, and on the same day an order was entered by the court fixing the hearing for November 17, 1909, and notice thereof properly given. Sundry defendants appeared and demurred, and a part of the same defendants answered and filed cross-complaints. The cross-complaints alleged that said defendants had lands under the Enterprise Canal, which was an independent canal system, and that they had been erroneously included in the Progressive irrigation district and by consent the decree of confirmation left such parties out of the district, on the ground that they received no benefits. On December 17, 1909, the court entered its decree, whereby it found that all proceedings in connection with the organization of said district had been regular and It appears in this case that after the oraccording to law, and that there had been ganization of the district and the bond issue no errors, irregularities, or omissions affect- provided for, confirmation proceedings were ing the substantial rights of any of the inter- had. Then, after the assessment of benefits, ested parties. It appears that said irriga- this proceeding was brought for the confirmation district was duly organized and became tion of the assessment of benefits and also a lawful district January 13, 1908, the date for a reconfirmation of all of the proceedwhen the county commissioners declared that ings in connection with said district. By exto be the result of the proceedings had before press allegation in the petition, the petitionit. The court also decreed that the proceed- ers did not waive any benefits secured to the ings in regard to bonding said district were district by the first decree of confirmation according to law, and ratified and confirmed While it was not necessary to have the forall of said proceedings. Thereafter, on Au- mer proceedings reconfirmed, the decree of gust 4, 1910, the directors of the irrigation reconfirmation did not deprive the district district made their estimate of $350,000 and of any rights it acquired under the first depassed their resolution declaring benefits of cree. It may not have given the district any $11.75 per acre, and made the list of appor- further rights than it then had, and even if tionment and distribution under the provi- the pleader had not pleaded the first decree, sions of section 2399, Rey. Codes, after hav- the second petition would have authorized 1 114 P.-2 |