1. MASTER AND SERVANT (§ 286*)-INJURIES TO SERVANT-SUBMISSION TO JURY-SUFFICIENCY OF EVIDENCE.

Plaintiff, while in defendant's employ as a helper in its shops at Devils Lake, met with an accident while assisting a machinist in forcing a bushing into a link by means of an air press. The injury was caused on account of certain blocking giving way, resulting in the link falling from the press table onto plaintiff's foot. The complaint charges negligence on defendant's part: (1) In furnishing a defective air press; and (2) in furnishing unsuitable and defective blocking irons for the safe operation of said press.

Evidence examined, and held insufficient to authorize a submission to the jury of the question of defendant's negligence on either of the alleged grounds.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. § 286.*]

2. MASTER AND SERVANT (§ 217*)—INJURY TO

SERVANT-ASSUMPTION OF RISK.

Both plaintiff and the machinist with whom he was engaged as a helper admit that there were no imperfections, to their knowledge, either in the machinery or appliances in use by them at the time of the accident, and the proof also shows that there were a lot of pieces of iron near at hand suitable for blockings from which they were at liberty to make a selection. The blocking irons used had been in use for such purpose for a long time prior to the accident, and plaintiff and the machinist knew, or should have known, as much or more about their condition as the master. Held, in the light of such facts, that no recovery can be had, even though the irons used for blocking were not the most suitable for such purpose.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 574-600; Dec. Dig. 217.*]

in the evidence must be disregarded and the evidence construed most favorably to plaintiff.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 2912, 2917, 3748, 3758, 4024; Dec. Dig. § 927.*]

Appeal from District Court, Ramsey County; C. W. Buttz, Judge.

Action by Arthur Ness against the Great Northern Railway Company, a corporation. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

Murphy & Duggan, of Grand Forks, for appellant. Frederick T. Cuthbert and Arthur R. Smythe, both of Devils Lake, for respondent.

FISK, J. Plaintiff and respondent sustained personal injuries while in defendant's employ in its machine shops at Devils Lake, and he brought this action to recover damages therefor, alleging that such injuries were occasioned by the negligence of the defendant in failing to provide suitable machinery and tools for doing the work in which plaintiff was engaged. He recovered judgment in the court below in the sum of $1,400 and costs. Thereafter defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial, which motion was denied, and the appeal is both from the order and from the judgment.

The statement of facts made in the brief of respondent is, in the main, correct, and such statement is substantially as follows: "Plaintiff was engaged as a machinist's helper by defendant company at its shops in Devils Lake. At the time of receiving the injury to his foot he was acting as a helper to Carl Lund, a machinist, and was under Lund's control and authority. They were 3. MASTER AND SERVANT (§ 276*)—Injury To Working at an air press engaged in pressing SERVANT-PROXIMATE CAUSE-SUFFICIENCY a bushing into a link which is a part of a OF EVIDENCE. Evidence, as to the alleged defect in the locomotive. The link which fell on plaintiff's air press on account of certain play or loose-foot weighed about 150 pounds. ness at the points where such press was fastened by bolts to side arms and to the table, examined, and held insufficient upon which to base a recovery; it being apparent that such alleged defect could in no manner have caused the plaintiff's injury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. $$ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.*]

(Additional Syllabus by Editorial Staff.) 4. MASTER AND SERVANT (§ 265*)-INJURY TO SERVANT-BURDEN OF PROOF-PROXIMATE

CAUSE.

In an employé's action for injuries from a defective air press and the employer's failure to furnish suitable blocking irons, the burden was on plaintiff to prove that at least one of the proximate causes of the accident was either one or both of these alleged defects.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]

5. APPEAL AND ERROR (§ 927*)-REFUSAL TO DIRECT VERDICT EVIDENCE.

On review of the refusal of the trial court to direct a verdict for defendant, all conflicts

The air

press and its appurtenances consist of a table with an iron top or surface about five ines thick and three feet wide and five feet long. The legs of the table or framework upon which this iron cover is placed is made of wood. The air cylinder and piston are set or suspended over this table by two arms made of wrought iron having hooks or lips on each which are bent to a right angle and fit underneath the iron that forms the surface of the table and over flanges on the lower head of the air cylinder respectively and bolted to their respective fastenings. Such arms or bars of iron are about eight inches wide and two inches thick. Where these arms or upright pieces are fastened to the table and to the cylinder head there was some play or lost motion, owing to the fact that the respective irons forming the top of the table, the flange on the cylinder head, and the arms were not bolted or fastened snugly or securely together. The piston of

the press has a nine-inch stroke, and when | different sizes in and about the shop which at the farthest possible distance from the he was at liberty to select at his discretion, table it is eighteen inches, and its closest and the custom was for the different workpossible distance is nine inches. When the men to get whatever tools and blockings they air is turned on, the piston moves quite wanted. Lund testified that the channel rapidly, but not fast enough to strike a blow. irons which were used were perfectly satisSuch air press has a pressure of fourteen factory for the purpose. The blocking which tons. Immediately under the piston in the was used on the occasion in question consistface of the table is a hole which is left open ed of these two channel irons which were when pushing out bushing, etc., but when placed on the table over the hole and under putting in bushing it must necessarily be the piston, then the end of the link containcovered with blocking or bars of iron. To ing the hole into which the bushing was to use the press effectively for the work Lund te forced was placed on top of these irons, and his helper were doing, it was necessary and the bushing on top of such link over the to block the link or rocker arm upon blocks hole, and another flat piece of iron about so that the piston of the air press would eight inches long on top of the bushing. The reach the bushing in order to drive or push piston was then forced down on top of such it in. For the purpose of this blocking the blocking, forcing the bushing into the link railway company furnished what is known about three-quarters of the way when it or called channel irons, and such irons had stopped, and while plaintiff was still holding been in use for a long time prior to the such link, Lund, as before stated, struck a accident and for a short time thereafter, at glancing blow with a sledge hammer on top which time other irons were furnished for of such blocking, whereupon the blocking such purpose. The testimony shows that the gave way, and the link fell on plaintiff's foot, flanges of these channel irons were partly as above stated. broken off and there were some pieces cracked or chipped off along the edges. (Such fact, however, did not render the same unfit for such purpose.) Lund, the machinist, and Ness, his helper, took this link or rocker arm to the air press, where Lund arranged the blocking upon which to lay such link, and he and plaintiff lifted the link onto this blocking. Ness held or steadied the link while Lund turned on the air by a valve which drove the piston down. When the bushing had gone about three-quarters of the way into the hole, it stopped. The fourteen tons pressure being unable to move it farther, Lund took a sledge hammer and hit the blocking on top of the bushing in order to give it a fresh start, whereupon the blocking for some reason gave way, and the link fell from the table onto the plaintiff's foot, causing the injury complained of."

The air press is correctly shown by photographs which were introduced in evidence, from which we are enabled to understand the mechanism thereof much better than would be possible from a mere description of such machine. The testimony discloses that this link or rocker arm into the end of which Lund and the plaintiff were engaged in inserting such bushing could have been, and properly should have been, entirely blocked up on such table to the proper height, instead of being held at one end by the plaintiff; but presumably plaintiff obeyed Lund's instructions in holding the same in his hand, and it is fair to assume that the foreman of the shop, who frequently passed by such press while in operation, had knowledge of and presumably acquiesced in the method thus employed by such machinist. The testimony also discloses that the machinist was not restricted to the use of these particular channel irons for blocking purposes, but there were numerous other suitable irons of

In view of our conclusion that the trial court erred in denying the motion for a directed verdict, we need notice but the one assignment of error predicated upon such ruling.

[4] As stated by appellant's counsel, the negligence alleged in the complaint is: (1) That the air press was defective; and (2) that the irons furnished for blockings were defective and unsuitable for such purpose. In order to sustain the recovery, therefore, the proof must reasonably tend to disclose that the proximate cause, or at least one of the proximate causes, of the accident, was either one or both of these alleged defects.

[5] The rule which must guide us in determining whether there is any evidence sufficient to require its submission to the jury upon either of such issues is well settled. All conflicts in the evidence must be disregarded, and such evidence is to be construed most favorably to the plaintiff.

As stated by this court in Cameron v. Great Northern Railway Co., 8 N. D. 124, 77 N. W. 1016: "The test is whether there is any competent evidence in the case reasonably tending to sustain the cause of action alleged; and, if the evidence is such that intelligent men may fairly differ in their conclusions thereon upon any of the essential facts of the case, it is error to withdraw the evidence from the consideration of the jury." See, also, Zink v. Lahart, 16 N. D. 56, 110 N. W. 931, and Hall v. N. P. Ry. Co., 16 N. D. 60, 111 N. W. 609, 14 Ann. Cas. 960.

[1] In the light of the above rule, we will first examine the evidence with reference to the alleged negligence of defendant in failing to furnish suitable blocking irons for use in operating said air press. The testimony seems to be uncontradicted that the channel irons which were used at the time of

they were handling and using the same almost daily and sometimes more frequently, and it is undisputed that plenty of other pieces of iron suitable for blocking were near at hand and at their disposal. Surely, under these conditions, the master cannot be held liable, even though such channel irons were not the most suitable for the purpose. Ling v. St. Paul, M. & M. Ry. Co., 50 Minn. 160, 52 N. W. 378. See, also, Labatt, Master & Servant, §§ 603-621, and cases cited. In section 603 this author states the rule as follows: "It is well settled that, where the master has provided an adequate and readily accessible stock of suitable appliances in good condition, from which to make a selection, and the imperfection of an instrumentality selected therefrom was, or ought to have been, apparent to the servant who selected it, the master cannot be held responsible for injuries which were sustained by the use of that instrumentality, whether the sufferer be the servant himself who made the selection or a coemployé." The above rule is, we believe, in accordance with the unanimous holdings of the courts.

We are forced to the conclusion, therefore, that no recovery can be sustained upon this alleged ground of negligence.

the accident are the same irons which had been in use for such purpose ever since the air press was installed some two years prior to the accident, or at least for a considerable length of time. The testimony also discloses that such irons were used for some time after the accident, and then other irons were furnished for use in place of the old ones. It seems to be undisputed that the flanges on these channel irons were broken or chipped off in many places, but it does not appear that they were for this reason unsuitable for the use to which they were put, although the witness Hann gave it as his opinion or conclusion, based on a description of the blocks, "that if the same play was in this machine at the time of the accident that they would have a number of these accidents and an accident would almost be unavoidable no matter how they placed the blocks; that is, if they were in the condition they said they were." And the witness Tideman testified that he thought the regular steel irons are better blocking than the channel irons. But plaintiff's witness Lund, the machinist who placed these blocks on the air press table just prior to the accident, testified: "We get the different pieces of iron we use for blocking there on the press. There were quite a few of them of different shapes and [2] This brings us to the consideration of sizes lying around the press. If we did not the only other ground of negligence relied on see what we wanted, we would get it; we by plaintiff, to wit, that the air press was had all we wanted there." And referring to defectively constructed. In this connection the two particular pieces of iron in question, we deem it proper to state that, while the he testified: "The uprights or perpendicu- complaint alleges such fact in a general way, lars are two channel pieces and are intact. I it is very apparent that the main act of examined these pieces of iron right along be- negligence relied on is the alleged failure of fore the accident. We used them every day defendant to furnish suitable blocking irons pretty near. They were pieces we used to for use in the operation of such press. This cover the hole with, and were considered is made quite clear from an examination of good for the purpose." This witness also the complaint and also of the bill of particutestified that there were a lot of pieces of lars furnished on defendant's demand. The iron within 10 or 15 feet from the press of portion of the complaint with reference to dedifferent shapes, and he supposes he could fendant's alleged negligence is as follows: have used them to build up the four inches "That said air press was defectively confrom the table to the bushing and the link, structed, and the tools and irons used in conand, if there was not a piece of iron at the nection with said air press were not the proppress that suited his purpose, he would go and er tools and irons for that purpose, and that get one, and both this witness and the plain- | said air-prèss tools and irons were imperfecttiff, Ness, made a written statement after ly constructed, defective and unsafe and unthe accident to the effect that there was no fit for the purposes for which they were beimperfection in the machinery or appliances. | ing used, and the same were inadequate, and There is much more testimony bearing upon this question, but it is all of like character, and we are firmly convinced from a consideration of all of such testimony that there was no room for intelligent men to differ as to the fact that such channel irons were suitable for the use to which they were put and that the accident cannot be attributed to any defects therein. Furthermore, we fail to see how actionable negligence can be predicated upon the use of such channel irons for the obvious reason that the testimony conclusively shows that both Lund and the plaintiff knew or must have known as much or more about the condition of such irons

that said imperfect defectiveness, inadequacy, unsafeness, and unfitness could have been discovered and known by the use and exercise by said defendant of ordinary care and diligence, and that the same were, at the time aforesaid, known to said defendant, and the same were unknown to this plaintiff.

* That the said injury was wholly without fault or negligence of this plaintiff whatsoever and was caused on account of the defective condition of said machinery and tools as more specifically herein set out."

And the bill of particulars thus furnished is as follows: "You will please take notice that the following is a bill of particulars as

These side arms are about eight inches in width and two inches thick and made of wrought iron. The evidence is undisputed [3] It is therefore quite apparent, as above that the press at the time of such accident stated, that the chief, and in fact the sole, was and ever since has been in the same genact of negligence relied on at the time the eral condition as it was in when first inbill of particulars was prepared and served stalled, some two years prior, with the exwas the alleged failure of defendant to fur- ception of the addition of an oil cylinder nish proper irons for blocking, and it ap- which does not materially affect the question parently did not occur to plaintiff that any here involved. Such press was used for other ground existed until some time later. about two years prior to the accident and We refer to this merely as a circumstance had been used ever since such accident down proper to be considered in determining wheth- to the time of the trial-two years—without er plaintiff established a sufficient case to any change whatever, and, so far as the recrequire a submission to the jury of the ques-ord discloses, it worked perfectly during all tion as to whether the air press was defec- this time. While there is a great deal of tively constructed, and, if so, as to whether testimony in the record of a conflicting na

arms. This being self-evident, the inevitable conclusion must follow that the cause of the blocking giving way must be accounted for on some other theory, and it is very apparent that the true cause was the failure of Lund to properly build up the blocking and for which failure the defendant is, of course, not responsible.

ture upon the question of the play or looseness at the ends of the side arms which extend from the table to the cylinders, there can be no doubt from such testimony, and we must accept it as a fact, that there was more or less play both vertically and horizontally when the power was not applied. But it nowhere appears that this in any way caused, or could have caused, the accident, and the jury could not properly so find. Plaintiff relies upon the testimony of Hann and Robison who were permitted to state as a conclusion that with such play or loose-recting the lower court to set aside the judgness the press would be more dangerous, but neither of these witnesses ventured an opinion as to the real cause of the accident. They did not, nor could they, in the light of the other testimony, claim that such accident was caused by this play or looseness.

While we regret plaintiff's serious injury and sympathize with him in his misfortune, we at the same time feel that our duty is plain, and that we must discharge it by di

ment herein and to enter a judgment in defendant's favor, and it is accordingly so ordered.

ENGLERT v. DALE.

Court of North Dakota.

May 24,

1913. On Petition for Rehear-
ing, June 19, 1913.)

(Syllabus by the Court.)

1. MORTGAGES (§ 86*)-VALIDITY-FRAUD AND DURESS-PROOF REQUIRED.

Before a mortgage which is valid and regular upon its face can be set aside by a court of equity for the reason that its execution was obtained by fraud and duress, there must be clear and convincing proof of such facts.

The machinist Lund, who was plaintiff's chief witness, and who was necessarily very (Supreme familiar with this press, having operated it frequently, testified as follows: "At the time of the accident there might be a little play here in these arms. I would say the play is about the same as it is now. * * I don't mean to say there was any imperfection or defect in the machinery. The machinery was all right." True, the latter testimony was stricken out on plaintiff's motion, but such ruling was manifestly erroneous. This witness, however, gave in effect the same testimony thereafter. Shortly after the accident he made and signed a written report of such accident, in which report he stated in sub-2. MORTGAGES (§ 86*)-FRAUD AND DURESSstance that there were no defects in the machinery, tools, or appliances, and the plaintiff made a similar report which was also introduced in evidence. Both Lund and the plaintiff swore at the trial that such reports were correct.

It would serve no useful purpose to quote at length from the testimony. It is sufficient to say that from a careful consideration of the entire evidence we have no hesitancy in concluding therefrom that the air press was in reasonably good working condition and that in any event the slight play or the socalled lost motion could not possibly have

caused the blocking to give way, for the conclusive reason, to our minds, that there could have been no such looseness when the 14 tons' pressure was applied as it was when the accident occurred. With the bushing pressed two-thirds of its way into the hole, as the evidence discloses, it was, and with a 14 tons' pressure thereon it does not require a mechanical expert to know that it would be an utter impossibility for the piston or the cylinders operating such piston to assume a slanting line toward the table without bending or breaking the heavy iron side arms connecting such cylinders to the table below, and it is equally absurd to contend, under these circumstances, that there could possibly have been at such time any play or looseness whatever at the ends of such

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1350, 1355, 1364; Dec. Dig. § 86.*]

SUFFICIENCY OF EVIDENCE.

Evidence examined, and held not to furnish such clear and convincing proof.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 1350, 1355, 1364; Dec. Dig. § 86.*]

3. MORTGAGES (§ 79*)-GROUNDS THREATS OF ARREST.

Threat of a lawful arrest for an offense

which has actually been committed is not in itself a sufficient ground for the cancellation of the mortgage which has been executed as a result of such threat, and to secure the maker of the threat for the loss occasioned to him by the commission of such crime.

[Ed. Note. For other cases, see Mortgages,

Cent. Dig. §§ 182-185; Dec. Dig. § 79.*]
4. PUBLIC LANDS (§ 136*)-MORTGAGES (§ 25*)
CONSIDERATION
ΤΟ
- RIGHT
MORTGAGE

HOMESTEAD.

Section 2296, Rev. St. (U. S. Comp. St. 1901, p. 1398), which provides that no lands acquired under the provisions of the Homestead Act shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor, is intended as a prohibition on the involuntary appropriation of the homesteader's land by way of execution or attachment, and does not contemplate a restriction upon his power to voluntarily mortgage his interest therein, and a release of such a mortgage may constitute a valid consideration for the execution of another by another person and upon a different piece of land.

Lands, Cent. Dig. 88 364-366; Dec. Dig. 8 [Ed. Note.-For other cases, see Public 136;* Mortgages, Cent. Dig. §§ 29-42, 1364; Dec. Dig. § 25.*]