The contention of the appellant wife is that on the facts alleged there is no such showing of irreparable injury to the plaintiff, or of inadequacy of a remedy at law, as to justify the interposition of a court of equity by means of an injunction. building on said premises, or from removing the ruling sustaining plaintiff's demurrer to therefrom any sand, gravel, or rock. The the cross-complaint, since the appellants have complaint contains the usual allegations not seen fit to argue this question. that said defendant wife will, unless restrained, carry out her threats and prevent plaintiff from entering the property, and from performing the terms of the lease on his part, and will prevent him from carrying out his obligations to persons with whom he has contracted to deliver sand, rock, and gravel, and with whom he has made contracts for the erection of a plant on said premises, "all to the great and irreparable damage of the plaintiff herein." It is also alleged that defendant Martha H. De Turk is insolvent and unable to respond in damages for any judgment that might be obtained against her. The demurrer of the defendant Martha H. De Turk having been overruled, she answered and filed a cross-complaint, in which she at tacked the validity of the lease, asserting that she owned an interest in the land. J. G. De Turk filed a separate answer, in which he, in effect, joined in the request that plaintiff be granted an injunction against the defendant Martha H. Plaintiff's demurrer to the cross-complaint having been sustained with leave to amend, and no amendment having been made, the cause came on for trial. Findings were waived, and the court entered judgment granting the plaintiff the relief for which he had prayed. The notice of appeal states that the defendant Martha H., "and for her husband, J. G. De Turk," appeals from the judgment and the order of the court overruling the demurrer of the defendants and the or der of the court sustaining the demurrer of the plaintiff to the defendants' cross-com plaint. [1, 2] The only appeal that can be considered is that from the judgment, since our law does not authorize an appeal from an order overruling or sustaining a demurrer. The rulings on demurrer are, however, reviewable on the appeal from the judgment itself. [3] The court in its judgment recites that it finds all of the allegations of the complaint to be true, and all of the allegations in the answer of the defendant Martha H. De Turk, claiming an interest in the property, to be untrue. Even without this, the judgment itself would, in view of the fact that findings were waived, import that the court had found in favor of the plaintiff on all material issues. No evidence being brought up in the record, we must assume that such findings are fully supported. [4] The only question to be decided is whether the complaint states facts entitling the plaintiff to the relief sought. We are not called upon to consider the propriety of [5, 6] It is, no doubt, the general rule that injunction will not lie to restrain mere trespasses on land, and this for the simple reason that an action at law will ordinarily afford an ample and adequate remedy for the wrong. Mechanics' Foundry v. Ryall, 75 Cal. 601, 17 Pac. 703; Cal. Nav. Co. v. Union Trans. Co., 122 Cal. 641, 55 Pac. 591; Randall v. Freed, 154 Cal. 299, 97 Pac. 669. And, on like grounds, it is not the usual practice of courts of equity to issue injunctions for the purpose of restoring land to a claimant out of possession-in other words, to permit an injunction suit to be substituted for an action of ejectment. 22 Cyc. 826. The injunction may, however, be granted, even in such cases, where the threatened injury would be irreparable, and the legal remedy inadequate. 22 Cyc. 827. [7] These requisites are shown to exist in the case at bar. We have more here than a threat of repeated trespasses, or a bare withholding of possession. The plaintiff is entitled to enter under an agreement which authorizes him to remove the very substance of the land itself, and makes his right dependent upon the construction of improvements within a limited time and a continuing activity thereafter. He is excluded from the land by physical obstructions wrongfully erected pellant Martha, who is, in fact, the only deand threatened to be maintained by the apfendant complaining of the decree. An action at law would not give him an undisturbed possession in time to enable him to carry out his obligations under his lease. These facts, entirely apart from the allegations of insolvency, make out a case of irreparable damage sufficient to warrant relief by way of injunction. if allowed to continue, might ripen into a [8] Furthermore, the acts of the defendant, in itself, calls for the interposition of a court prescriptive right, and this consideration, works, 68 Cal. 146, 8 Pac. 816; Mendelson of equity. Moore v. Clear Lake Waterv. McCabe, 144 Cal. 230, 77 Pac. 915, 103 Am. St. Rep. 78. The claim that Martha H. De Turk was improperly joined as a party defendant is obviously without merit. and sustaining demurrers are dismissed. We concur: SHAW, J.; LAWLOR, J. SCHUH v. R. H. HERRON CO. (Supreme Court of California. (L. A. 4040.) Dec. 19, 1917.) 1. WITNESSES 379 (7) — CROSS-EXAMINATION-INCONSISTENT PLEADINGS. Where plaintiff machinist, in action against his employer for injuries, in his last amended complaint and in his testimony stated that his hand was caught between the plies on defective belt, and his arm drawn down between the cone of the lathe and the body of the machine, whereas his previous complaints alleged his hand was drawn in between the belt of the lathe and the cone thereof, and did not allege his hand was caught between the plies of the belt, such prior pleadings were admissible in his cross-examination to show prior inconsistent statements. 2. EVIDENCE 208(6) --- ADMISSIONS CROSS-EXAMINA PRIOR PLEADINGS. A pleading which has been superseded by an amendment can no longer perform any office as a pleading, and cannot be used on the trial as admissions to contradict an allegation in a subsequent amendment. 3. WITNESSES 379(7) TION-INCONSISTENT PLEADINGS. Where the person who files and verifies a pleading subsequently amended is himself a witness on the trial, he may, on cross-examination, be questioned concerning the portions of his original pleadings which are inconsistent with the pleading upon which the trial is had, to show statements inconsistent with his testimony on the stand. 4. MASTER AND SERVANT 274(7)—ACTION -EVIDENCE-CONTRIBUTORY NEGLIGENCE. In a machinist's action against his employer for injuries received while attempting to shift a moving belt claimed to be defective, evidence that defendant had posted notices expressly directing employés to examine tools before use, and report and not use them if defective, and not to shift belts while the shafting was in motion, which notices it was inferable plaintiff had seen and knew the contents of, was admissible on the issue of contributory negligence, since, if plaintiff had this knowledge, it would tend to show him negligent, first, in proceeding to use the defective belt without examination or without reporting it, and, second, in attempting to shift it while the shaft was in motion. ERROR 171(3)-THEORY to 5. APPEAL AND "As does so and is injured thereby, he would be [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Assumption of Risk.] SHAW, J. In an action for personal injuries the plaintiff recovered judgment against the defendant for damages. The defendant appeals from the judgment, and from an order denying its motion for a new trial, the latter having been taken before the law abolishing such appeals was enacted. The defendant was carrying on a machine shop. It had therein a lathe, built on a steel EM-table and fastened to a horizontal shaft turn The abolition of the defense of assumptioned by a belt from a countershaft above. For of risk by the Employers' Liability Act (St. the purpose of changing the speed of the lathe 1911, p. 796) did not destroy the defense of the shaft and countershaft are each fitted contributory negligence. 247(5) CON 7. MASTER AND SERVANT with what are called "cones." A cone is a succession of pulleys, each slightly larger than the one before, with an approach or inclined plane connecting them so that the belt will easily pass from one to the other. The cone on the countershaft above increases in size from right to left; that on the lathe shaft was to the left of the lathe and increases in size from left to right. On the upIf an employé, ordered not to shift a belt per cone the belt is shifted by means of a while the shafting is in motion, nevertheless stick or lever hanging down from a point 8. MASTER AND SERVANT TRIBUTORY NEGLIGENCE. 247(5) CON above the cone and by the side of the belt. I was torn, worn, patched, and split, and said By pressing it against the belt the latter may lever difficult to move because it was impropbe moved to another part of the upper cone. erly adjusted and connected, and its connecOn the lower cone the belt may be moved tions loose, rusty, and worn out, and that sidewise by pressing against it with a stick by reason of said defects, and while plaintiff or tool or with the bare hand. But in doing was operating said lathe, his left arm "was this when the belt is in motion it is neces- caught between the shifting belt and the cone sary first to shift the belt on the upper cone of said lathe," and thereby severely injured, to a smaller part thereof so as to loosen it. as afterwards alleged. On the cross-examinaIn the complaint upon which the trial was tion he was first asked whether at any time had plaintiff alleged that he was in the serv- prior to the filing of the last amendment to ice of the defendant, and was operating a the complaint, filed a few days before, he had lathe which was turned by means of a belt filed any pleading intimating that there was so arranged that it could be shifted along the shaft to make the lathe run faster or slower, any opening in the plies of the belt. This was ruled out as not proper cross-examination. as desired; that the power to operate the The evidence would perhaps have been incombelt, and which ran the lathe, was controlled petent, for the pleadings were the best eviby a lever directly over and above tue lathe; dence of their contents. But that was not that the lathe was defective and unsafe; that the ground of the objection. Thereupon the the plies or layers of the belt had become un- original and amended complaint referred to glued or split in certain places so that they were introduced in evidence. Later, however, would separate; that said lever was difficult the court ordered that said pleadings be to move and operate because it was improper-stricken out, and instructed the jury that ly connected and adjusted, and its connec- they should not be considered. It will be obtions were rusty and old; that while plain-served from the foregoing statement as to tiff was operating said lathe he attempted to the pleadings that there was a distinct varishift said belt, and by reason of its defective ance between the statements of the witness condition his left hand was caught between in his testimony and in his last amendment the plies of the belt, and thereby his left arm on the subject and his statement concerning was drawn down between the cone of the it in the previous pleadings, in this, that in lathe and the body of the machine or table, the last pleading and in his testimony he causing the arm to be cut and bruised and stated that his hand was drawn down bethe bone fractured, for which injury the dam-tween the cone of the lathe and the body of ages were claimed. The particulars concern- the machine, whereas in the previous pleading the manner in which the injury occurred ings he had alleged that it was drawn in bewere inserted in the complaint by an amend- tween the belt of the lathe and the cone there. ment made three days before the trial. This of. Also, in the first complaint he did not was the third amendment of this part of the state that his hand or fingers were caught complaint. between the plies of the belt, or that the belt [1-3] The first error complained of is the was defective by reason of the plies coming ruling of the court below upon cross-examina- apart. The court erred in striking out the tion of the plaintiff while testifying as a wit- pleadings. It is true, as stated by the court ness in his own behalf. His testimony in in making its ruling, that a pleading which chief was that in shifting the belt he attempt has been superseded by an amendment can ed to do so with his bare hand; that the belt no longer perform any office as a pleading, was slack at that instant and the plies open and cannot be used on the trial as admiswide enough to admit his fingers; that they sions to contradict a fact alleged in a subsewere caught between the two plies, which im- quent amendment. Mecham v. McKay, 37 mediately became taut, and drew his arm Cal. 165. But this rule is not universal, and down between the cone of the lathe and the there is an exception in cases where the perbody or table of the machine. The original son who files and verifies the pleading is himcomplaint alleged on this subject that the self a witness on the trial. In such a case shifting arrangement and its connections, and he may, on cross-examination, be questioned the lever by which it was operated, were concerning the portions of his original pleadloose, rusty, and worn out, and were by rea-ings which are inconsistent with the pleading son thereof unsafe to operate, and "that by upon which the trial is had, for the purpose reason of said worn-out condition of said of showing statements inconsistent with his shifting arrangement, lever, and the belts con- testimony on the stand. Johnson v. Powers, nected thereto," the plaintiff's "left arm was 65 Cal. 180, 3 Pac. 625; Estate of O'Connor, pulled in under and between the belt and the 118 Cal. 71, 50 Pac. 4. It was proper, therecone of said lathe," instead of it having been fore, for the jury to have before it the caught in the plies and "drawn down in and varying statements of the plaintiff on the between the said cone of said lathe and the subject of the exact manner in which he re body of said machine," as alleged in the final ceived his injury. amendment. In another amendment thereto the plaintiff had alleged that the lathe was [4] Evidence was given that the defendant had posted notices in a number of conspicu tice to Employés," wherein the employés | show that it was deemed a matter in issue were forbidden to use or work with any tools to be submitted to the jury. Under these or machinery which through use had become circumstances a defective plea cannot be defective, and were ordered to examine all made available in support of an erroneous tools before using, and if found defective to ruling on the subject. Kelly v. Santa Barrefrain from using them and report to the bara, etc., Co., 171 Cal. 421, 153 Pac. 903, foreman or superintendent, and that belts Ann. Cas. 1917C, 67; Perry v. Angelus H. should not be shifted except while the shaft- Ass'n, 172 Cal. 316, 156 Pac. 449. ing was not in motion, and that if any em- [6-11] The injury occurred in 1913, after ployé violated these rules he did so at his September 1, 1911, when the Employers' Liaown risk. It was further shown that the bility Act of 1911 took effect, and before the plaintiff had been a machinist and had Workmen's Compensation Act of 1913 (St. known about the operation of lathes and the 1913, p. 279), was in force. The act of 1911 handling of pulleys and shifting levers for provides that, in any action by an employé about 17 years; that for 10 years his special against an employer for damages from an work had been in connection with lathes, and injury caused by the employer's neglect, "it that he had been working in the defendant's shall not be a defense: (1) That the emshop on lathes and otherwise, as general ployé either expressly or impliedly assumed machinist, for 6 or 7 months prior to the ac- the risk of the hazard complained of." cident. Objection to this notice was made on Stats. 1911, p. 796. The respondent argues the ground that it was immaterial, and that that the only effect of the notice as evidence the defendant could not, by posting such no- was to show that the plaintiff had assumed tice, relieve itself of responsibility or lia- the risks incident to his employment, and bility for neglect. This objection was sus- that, as the above statute abolishes that detained and the evidence excluded. In this fense, the notice was immaterial to the case. ruling the court erred. The evidence was of The court below apparently based its ruling such a character that the jury might rea- upon that theory. It is obvious that the sonably have inferred that the plaintiff had abolition of the defense of assumption of seen the notice and knew its contents. It risk does not destroy the defense of contribexpressly directed that employés should ex-utory negligence. The act of 1911 itself recamine all tools before using them, and report ognizes this fact. The notice was offered as them and not use them if defective, and that evidence of contributory negligence by plainbelts should not be shifted while the shaft- tiff, and it had a direct tendency to prove ing was in motion. If the plaintiff had this such negligence, if, as the jury might have knowledge, it would tend to show that he inferred, the plaintiff was aware of its con.was negligent, first, in proceeding to use the tents. If the employé is ordered to examine defective belt without examination or with- a tool for defects, and report the same, if out reporting the same; and, second, in at- any, before using it, and, failing to do so, tempting to shift it while the shaft was in he is injured from a defect which an ordimotion, as the evidence shows that he did. narily careful examination would have disThe defendant was entitled to have this evi- closed to him, it is obvious that the order dence go to the jury in order that they might made it his duty to make the examination, determine the question whether or not the that his failure to obey would be a neglect plaintiff was guilty of contributory negli- of that duty, and that this neglect would be gence. a contributing cause of his injury. Likewise, if he is ordered not to shift the belt while the shafting is in motion, and nevertheless does so, and is injured thereby, it may be true that he assumes the risk of injury from so doing, but by the same act he would be guilty of negligence contributing to his injury. "Violation by an employé of a rule promulgated by his employer for his protection is an act of negligence per se, and, when it contributes to his own injury, precludes a recovery." Dallas Coal Co. v. Rotenberry, 85 Ark. 240, 107 S. W. 997. To the same effect see Shanny v. Androscoggin Mills, 66 Me. 420; Foley v. Boston, etc., Co., 198 Mass. 532, 84 N. E. 846; Haynes v. Penfield, 231 Pa. 329, 80 Atl. 565; Carlson v. Marston, 68 Minn. 400, 71 N. W. 398; An [5] The plaintiff contends that the ruling cannot be reviewed, because, as he claims, there was no issue on the subject of contributory negligence, pointing out that the only allegation thereof in the answer was that the injury to plaintiff "was solely and proximately caused by the failure of plaintiff to exercise ordinary care on his own behalf for his own safety"; and, further, that "the negligence of plaintiff and his failure to exercise ordinary care on his own behalf for his own safety contributed to any injury or damage suffered by plaintiff"; in support of which claim he refers to Crabbe v. Mammoth, etc., Co., 168 Cal. 505, 143 Pac. 714. In this case, however, the defense of contributory negligence was considered as properly pleaded throughout the trial. No objec-drews v. Valley Ice Co., 167 Cal. 21, 138 tion was made at any time on the ground that it was not pleaded. A large part of the testimony on the trial was devoted to that Pac. 699; Thompson on Negligence, § 5395. The doctrine of assumption of risk means that the law implies, as a part of the con consider the objection that the evidence does not sustain the verdict. The judgment is reversed. We concur: SLOSS, J.; LAWLOR, J. Judge. (S. F. 8383.) (Supreme Court of California. Dec. 18, 1917.) 1. COSTS ~277(1)—STAY OF PROCEEDINGS COMMON LAW. Under the common law, a court of general jurisdiction had power to stay proceedings upon a second action or a retrial following a re versal on appeal, where the costs of the prior action or appeal had not been paid, on the ground of power to prevent a vexatious multiplicity of suits. 2. COSTS 277(1)-STAY OF PROCEEDINGSPOWER OF SUPERIOR COURT-DISCRETION. law is vested in the superior courts of the state, Such inherent power of courts of common the superior court may stay a retrial following a reversal on appeal if the costs of the appeal had not been paid, and, if the facts show the mere nonpayment of costs not coupled oppression or hardship in the particular case, with other circumstances not being a cause for a stay, but such power should be exercised with discretion. and assumes all the ordinary risks of personal injury incident to the business and not caused by the direct negligence of his employer. Beeson v. Green Mountain, etc., Co., 57 Cal. 29. If a servant goes to work in a place which he knows to be dangerous, he assumes the risk arising from such known dangers. So, if he accepts for his use a WEILE v. STURTEVANT, Superior Court tool furnished by the master, knowing it to be defective, and that such defect makes it dangerous, he assumes the risk of injury that may be caused to him therefrom. This doctrine has no necessary relation to the doctrine of contributory negligence. If the doctrine of assumption of risk were not a part of the law of master and servant, as it has not been since the act of 1911, the law of contributory negligence would remain, and if the servant contributes to his own injury by negligent disregard of his master's orders, given to him for his own safety, he cannot recover, notwithstanding the abolition of the defense of assumption of risk. [12] These errors were not trivial or unimportant. There was evidence that, while it was safer to shift the belt on the lower cone by means of a tool or other article, it was not unusual in the defendant's machine shop for those using such lathes to shift the belt below by striking it with the bare hand. There was evidence that this was the custom. This, however, does not of necessity establish the proposition that this method of shifting the belt was not negligent or dangerous. It might also be said to establish the proposition that the employés of the defendant, by constant exposure to danger, had grown careless of their own safety against such danger. It was for the jury to determine which was LAWLOR, J. This is a proceeding for a the correct theory. And in any event, if the writ of mandate. J. M. Brown, Inc., a cordefendant had positively forbidden the shift-poration, had recovered a judgment in the ing of the belt while in motion, or the use superior court in San Francisco against W. of a defective tool without examination for P. Fuller & Co. Thereafter, on appeal, the defects, when such defects were easily dis- judgment was reversed and a new trial orcernible with ordinary care, the act of the dered. Subsequently J. M. Brown, Inc., havservant in doing so would be negligent, and he could not recover for the consequent injury if, at the time of committing the act, he knew of the order forbidding him to do So. We cannot say that the defendant did not suffer substantial prejudice from these rulings. The judgment must therefore be reversed. In Bank. Mandamus by C. M. Weile against Geo. A. Sturtevant, as Judge of the Superior Court of the State of California in and for the City and County of San Francisco. Application denied. See, also, 28 Cal. App. 676, 153 Pac. 960. Howard Harron, of San Francisco, for appellant. Andros & Hengstler, of San Francisco, for respondent. ing been adjudicated a bankrupt, the trustee sold the chose in action which the bankrupt had against W. P. Fuller & Co. to the petitioner, who then had the cause set for a retrial in the court below in the department presided over by the respondent. Before the day set for the retrial, W. P. Fuller & Co. filed its bill of costs on appeal and moved to stay all further proceedings in the cause until such costs be paid. This motion was granted by the respondent, who also denied petitioner's motion to vacate the order staying proceedings. The purpose of this proceeding is to secure a writ compelling the respondent to proceed with the retrial of the cause. Numerous objections are made to the instructions given, and to the refusal to give instructions asked. We do not deem it necessary to consider these objections. For the most part the grounds of the criticisms are entirely removed by other parts of the instructions given, which complete the statement of the law on the subject, and the others are not of sufficient importance to justify [1, 2] Respondent's contention, in answer consideration. The instructions upon an- to the alternative writ issued in this case, other trial will probably not follow the ex- is that it is one of the inherent powers of act verbiage of those given by the court up- a court of general jurisdiction to stay proon the trial below. It is also unnecessary to ceedings upon a retrial until costs of appeal |