2 cution issued upon her judgment. The plaintiff stated no facts constituting a cause of action against the defendant sheriff. It certainly cannot be contended that, because a complaint states a good cause of action against the real party in interest, it therefore states a good cause of action against another who is made, and who may be, a necessary party defendant to the action. Nor can it be doubted that, in an action by which it is sought to enjoin the collection of a judgment, the judgment creditor, or his legal representative, is a necessary party. We know of no rule of law or practice which authorizes a court to pass upon the legal rights of any person without making him a party to the action or proceeding by which it is attempted to pass upon such rights. While, ordinarily, the objection that there is a defect of parties must be taken by special, and not by general, demurrer, where the defect appears from the face of the complaint, yet there, as in this case, the complaint also fails to state a cause of action against the only party to the action, it cannot constitute prejudicial error to sustain a general demurrer to the complaint, although a good cause of action is stated therein against one not a party to the action. In view, therefore, that the complaint did not state a cause of action against the only defendant to the action, the court did not err in sustaining the general demurrer. 3 4 The judgment, therefore, should be, and it accordingly is, affirmed, with costs to respondent. STRAUP, C. J., and MCCARTY, J., concur. TADD v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY. No. 2062. Decided January 21, 1910. (106 Pac. 943). 1. MASTER AND SERVANT-INJURY TO SERVANT-NEGLIGENCE-EVI DENCE. In an action by a section hand for injuries received in a box car, from which he was unloading ties piled therein, by the fall of one of the ties on plaintiff's foot, evidence held not to show that the method adopted by the foreman of pulling the ties down from the pile with a pick was not reasonably safe. (Page 211.) 2. MASTER AND SERVANT-INJURIES TO SERVANT-NEGLIGENCE-EVIDENCE. The fact that plaintiff's foreman was vexed and in a hurry, while engaged in pulling down ties froom the end of a box car for unloading, did not tend to prove negligence; it not appearing that he used more force than was necessary in pulling down the ties. (Page 211.) 3. MASTER AND SERVANT-ASSUMPTION OF RISK-OBVIOUS DANGER. The unloading of ties piled crosswise in one end of a box car requiring no special skill or experience, and the danger of the work being obvious to a section hand doing it, he assumed the risk of injury from ties falling upon him which were pulled down; especially where he admited, that he fully understood the danger when the ties were pulled down. (Page 211.) 4. MASTER AND SERVANT-INJURIES TO SERVANT-SUFFICIENCY OF EVIDENCE SERVANT'S APPRECIATION OF DANGER. In a section hand's action for injuries by cross-ties falling upon him, which were being pulled down from the end of a box car for unloading, evidence held to show that plaintiff fully appreciated the danger to which he was exposed in doing the work. (Page 212.) Appeal from District Court, Fourth District; Hon. J. E. Booth, Judge. Action by Thomas Tadd against the San Pedro, Los Angeles & Salt Lake Railroad Company. Judgment for plaintiff. Defendant appeals. REVERSED. Pennel Cherrington, Dana T. Smith and W. E. Rydalch for appellant. A. B. Morgan and Powers & Marioneaux for respondent. MCCARTY, J. Plaintiff brought this suit to recover damages for personal injuries alleged to have been sustained by him through the negligence of defendant. The answer denies the acts of negligence charged in the complaint, and alleges contributory negligence and assumption of risk upon the part of the plaintiff. A trial was had, which resulted in a verdict for the plaintiff in the sum of two thousand dollars. From the judgment entered on the verdict, defendant appeals. Plaintiff was sworn as a witness in his own behalf and testified in substance: That on the afternoon of May 6, 1907, when he received the injury complained of, he was in the employ of defendant as a section hand, and had been so employed for several years prior thereto; that at about two o'clock on the afternoon in question, after having performed some other duties in the line of his employment, he joined his foreman, a Mr. Garrett, and another section hand by the name of Johns, who were unloading ties from a box car; that the north end of the car was filled to the door with ties, but to the south Garrett and Johns had removed a quantity of ties, leaving about eight feet of clear space in the car; that the ties were piled crosswise of the car, and in tiers eight feet high; that when he entered the car about half of the first tier of ties remaining therein had been removed; that in removing the remainder of this tier, consisting of about six or seven ties, Garrett, with the use of a pick, pulled them down one at a time as plaintiff and Johns shoved them out of the car; that Garrett then stuck his pick in the top of the next tier of ties and pulled them down; that when the ties fell they caught him (plaintiff) across the foot; that he got back into the southeast corner of the car, but could not keep out of the way of the falling ties because of the limited amount of clear space in the car. On cross-examination plaintiff testified: "After we began unloading the ties it was two or three minutes before I was injured. In the first tier that was pulled down there were six or seven ties. It was only about half a tier. Garrett pulled them down and we threw them out. He stuck the pick in and pulled off the tier and Johns and I shoved them out through the door. Garrett pulled the next tier down with a pick. I knew he was going to do it. I understood that after we got through taking out the half tier of ties, we were to throw out some more after they were pulled down for us. Garrett pulled them down with the pick he used on the others and I got back as far as I could in the end of the car to get out of the way of the ties when they fell, because I knew that when he stuck his pick in and pulled them down they would fall. I got back as far as I could in the car because I was afraid they would hit me. Common sense would tell you why I got back." Johns was called as a witness and testified in part, as follows: "When Tadd (plaintiff) got in the car there was eight or nine feet of clear space. I told Garrett not to use the pick, but he said he had taken down ties that way and never hurt anyone. I told him I was afraid of those ties coming down on us. I told him he was liable to get hurt. Garrett was in a big rush and hurry, and was vexed. The ties were water-soaked and would weigh one hundred and fifty pounds. We took out a half a tier of ties and then started on another tier. Before pulling them down Garrett said, 'Look out!' and I hollered to Tadd, 'Look out!' and the first thing I knew Tadd was caught. Garrett said 'Stand back boys!' and I got up on the ties (lying lengthwise of the car in the south end thereof), and was looking for the ties to fall, and the old man got back in the corner. It was maybe half a minute that elapsed before the ties fell on Tadd. The next thing I heard the old man groaning in the corner of the car. There was a tie lying on his foot and I threw it off. I remonstrated with Garrett about the way he was pulling the ties down in the presence of Tadd, and told 37 Utah-14 him it was dangerous. It was the second full tier that was pulled down after Tadd got in the car that fell on him. Both times Garrett warned us to get back." . Garrett was then called as a witness by defendant, and testified, in part, as follows: "The car was thirty-six feet long. The doors were six feet wide. While Tadd was working there the doors were entirely open on both east and west sides. There were six or seven ties in the first tier after Tadd came in. I pulled them down with the pick. After that I went to another tier. We unloaded that tier in the same way, and then pulled down another tier in the same way with the pick. I saw the tie hit Tadd. It hit the floor first and then rolled towards me. I stepped over it and it passed me and on to Tadd's toe. When the ties were pulled down Mr. Johns stood on the end of a tie which was running lengthwise from the south end of the car. There were other ties projecting out and Tadd could have gotten on one of them." The foregoing is, in substance, the evidence bearing upon the question of defendant's negligence, the alleged contributory negligence of plaintiff, and assumed risk. When the evidence was all in and both parties had rested, defendant asked the court to peremptorily instruct the jury to return a verdict in its favor. The refusal of the court to so instruct the jury is assigned as error. Appellant contends that it was entitled to a directed verdict: First, on the ground that there was no evidence whatever that tended to show negligence on its part; and, second, that the evidence, without conflict, showed that whatever risks and dangers were involved in the unloading of the ties were open and obvious to plaintiff, and that he thereby assumed them. The only particulars in which respondent claims that appellant was negligent are: First the way in which the tiers of ties were pulled down by Garrett; and, second, "the unreasonable haste and vexation" with which Garrett pulled them down. The only proof relied upon to show that the method by which the ties were pulled down by Garrett was |