on the ground that the records in the journals were not made by the people, nor even by the legislatures, but by the clerks of the latter; that the concurrence of these clerks in the presentation of a constitutional amendment was not an essential matter; and that any want of the performance of their duties would not be permitted to invalidate an amendment which had confessedly been proposed by the legislature, and submitted to and ratified by the people. The other case in which the question was considered is that of Koehler v. Hill, 60 Iowa, 543. In that case it did not appear that there had been an attempt to ignore the constitutional provision, nor even to accord it the construction given in the principal case. The proposed amendment had been entered upon the journals, but there was a substantial difference in its phraseology as found upon the journals and that found in the amendment as it was submitted to and adopted by the people of the state. The court, however, considered the general question, and reached a conclusion diametrically opposed to that of the supreme courts of California and of Kansas. It argued that while the words "to enter" may not necessarily mean an entry in full, yet that such is their manifest meaning, as found in the constitution of the state; that the object of the constitutional provision was to provide such entries upon the journals of the legislature as should leave no reasonable doubt of the terms of the proposed amendment, and of the action of the legislature thereon; and therefore, that an entry which failed to accomplish these objects was substantially defective; and a constitutional amendment, submitted and voted for in its absence, could not be conceded to have become a part of the fundamental law of the state.

[IN BANK.]

FISK V. CENTRAL PACIFIC RAILROAD COMPANY.

[72 CALIFORNIA, 38.]

MASTER IS NOT ANSWERABLE TO SERVANT for injuries inflicted on him by negligence of another servant in same common employment, and not traceable to personal negligence of master.

SERVANT ASSUMES ORDINARY RISKS of employment, including risk of injury, from neglect of fellow-servants.

ORDER OF EMPLOYEE DIRECTING MINOR EMPLOYEE to undertake a dangerous task without proper advice as to such danger, if it be negligence, is the negligence of the fellow-servant, for which no recovery can be had against the master.

MINOR OR INFANT EMPLOYEE CANNOT RECOVER FOR INJURIES caused by negligence of a fellow-servant.

WHERE NEGLIGENCE OF MASTER, COMBINED WITH THAT OF HIS SERVANT, PRODUCES injury to a fellow-servant, the latter may recover damages of the master.

SERVANT HAVING EQUAL KNOWLEDGE WITH MASTER of the dangerous character of the work upon which he enters assumes the risks thereof. DUTY OF MASTER TO INFANT OR MINOR EMPLOYEE is to warn and instruct him regarding the dangers of the employment, and the means of avoiding them.

MINOR EMPLOYEE PROPERLY INSTRUCTED CONCERNING DANGERS of his employment thereafter stands on the same plane with other servants, with respect to the risks incident to the employment.

Boss OF TOOL-ROOM WHOM MINOR EMPLOYEE is instructed to obey has not, arising from such instructions, authority to direct such minor to go into other shops of the same master to look for work; and if such minor employee does go to such shop, and is there placed in a dangerous employment, without proper warning or instructions, and while in such employment is injured, he cannot recover therefor from the master. Freeman, Johnson, and Bates, for the appellant.

S. C. Denson, for the respondent.

By Court, SEARLS, C. This is an action to recover damages for a personal injury received by plaintiff while in the employ of defendant.

A judgment of nonsuit was entered in the court below, from which judgment, and from an order denying a new trial, the plaintiff appeals.

The defendant is a corporation organized under the laws of the state of California.

At the trial there was testimony tending to show that in September, 1883, the plaintiff, who was of the age of about twelve years, applied to Price Davis, assistant foreman in defendant's boiler-shops in Sacramento, for work, and was informed he would have to see Charles Hooper, the foreman. He saw Mr. Hooper accordingly, who gave him work in the tool-room under David Snape, who was the boss of such room, and whom he was instructed to obey.

His principal work was in cleaning the tools, putting them in place, giving them to the men, doing errands, etc. He also seems to have been engaged for nearly a month in heating rivets.

On the 1st of May, 1884, plaintiff went to the shop, and there being no work for him in the tool-room, he was told by the boss to go into the shop and see if there was anything for him to do there. In the shop he was requested by Price Davis, Jr., a young man aged nineteen, and a son of the assistant foreman, to go into the fire-box of a boiler and wipe a tap, in place of another boy named Downs, who was engaged in the work, and whom, young Davis said, he wanted to help him at something else.

The precise testimony on this point is as follows:

"I went into the shop and met Price Davis, Jr., and he asked me if I was doing anything; I told him no, I was not doing anything; and he told me that he wanted me to go in and wipe the tap for him. He said he wanted another boy to help him. Before that there was a boy named Downs that

was inside of the fire-box, and Downs was going to help him do some work. I asked him if I could not help do the work, and he said no. He went off and staid about five minutes, and came back and said his father told me to go into the firebox. . . . . He was the son of Price Davis, the assistant foreman," etc.

The tap was being used by one John Soule to drill holes through the fire-box, and to cut threads in them to receive screws, and was propelled by machinery on the outside, which gave to it a revolving motion at the rate of one hundred revolutions a minute.

The office of plaintiff was to receive the tap when it came through, clean it from the particles of iron which adhered to its oiled surface, and pass it outside the boiler to Soule for readjustment.

There were two methods for cleaning the tap; one was to wait until it came entirely through, and was detached from the machine, which was entirely safe, but slow; the other was to wipe it as it came through, and while in motion, which was dangerous.

Plaintiff testifies that Soule "told me to wipe off the tap in a hurry, and told me to wipe it off while it was running."

While engaged in wiping the tap with a piece of coarse cloth, the instrument caught the cloth, which was around the plaintiff's hand, twisted and broke his arm, and injured him severely and permanently.

Plaintiff had previously been employed in a boiler-shop at Oakland, and so informed Hooper, the foreman of the shop, when he applied for work.

Soule was a workman in the shop, and usually had charge of the tap. Plaintiff says: "When I went up to the tap, Soule asked me what I was going to do. I told him I had come to wipe off the tap. He said, 'What are you going to wipe it off with?' I told him with a sack, and he told me to go inside, and he said wipe it off while it is running."

From the nature of the employment and the instrument described in the testimony, we have no doubt of two propositions:

1. It was dangerous business to wipe the tap while in rapid motion, in the manner pursued by plaintiff.

2. A man of mature years, in full possession of his faculties, and gifted with ordinary ingenuity, could have performed the task while the instrument was in motion, without material risk.

The rule is well settled in England and the United States that the maxim respondeat superior does not apply so as to make a master responsible for injuries inflicted on one servant by the negligence of another servant, in the same common employment, unless such injuries are traceable to the personal negligence of the master.

The law implies a contract on the part of the servant, when he enters into the service, that he will assume the ordinary risks which are incident to the employment, among which is the risk of suffering hurt and injury from the negligence of his fellow-servants.

The boy (plaintiff) was directed to go into the fire-box to work by Price Davis, Jr., who seems to have been a hand in the shop, who was a son of the assistant foreman, and who told the plaintiff that his father (the assistant foreman) so directed; but there is no evidence to show that the assistant foreman gave any such order.

The order of Soule directing the plaintiff to clean the tool while in motion was improper, but it was the negligence of a fellow-servant engaged in the same general employment.

The rule which excuses a master from liability where an injury is caused by the negligence of a fellow-servant is not altered by the fact that the party injured is a child: King v. Boston etc. R. R. Corp., 9 Cush. 112; Chicago etc. R. R. Co. v. Harney, 28 Ind. 28; 92 Am. Dec. 282; Ohio etc. R. R. Co. v. Hammersley, 28 Ind. 371; Gartland v. Toledo etc. R. R. Co., 67 I!!. 498; Brown v. Maxwell, 6 Hill, 592; 41 Am. Dec. 771.

We conclude, therefore, that the plaintiff cannot recover for the injuries which he received, either by being placed by a fellow-servant in a dangerous place, or by the negligence of his fellow-servant in directing him in the manner in which he was to perform his work, unless the negligence of his fellowservants was in some way combined with the negligence of the defendant, so as to produce the result.

If the negligence of the master combines with the negligence of a fellow-servant, and the two contribute to the injury, the servant injured may recover damages of the master: Crutchfield v. Richmond etc. R. R. Co., 76 N. C. 320; Booth v. Boston etc. R. R. Co., 73 N. Y. 38; 29 Am. Rep. 97; Paulmier v. Erie R. R. Co., 34 N. J. L. 151; Cayzer v. Taylor, 10 Gray, 274; 69 Am. Dec. 317.

Was the defendant guilty of any such negligence as rendered it liable?

There is nothing in the testimony to show any negligence in the selection of Soule as an employee, or tending to bring home to the defendant knowledge of his carelessness.

We must, therefore, look to the circumstances under which the plaintiff sought work in the boiler-shop for a basis upon which to determine whether or not defendant, or its servants in authority, were guilty of wrong.

The first question, manifestly, is as to the extent of the authority conferred upon Snape, the boss of the tool-room; and if it shall be found that he possessed the requisite power to bind the defendant by his direction to plaintiff, then, second, we may inquire into the manner in which his authority was exercised.

Recurring to the testimony, we find, — 1. That Snape was boss of the tool-room, presumably connected with the boilershop, and as such had charge of the tool-room; 2. That Hooper was foreman of the boiler-shop, and had authority to employ men therein; 3. That when plaintiff applied for work, Hooper employed him to labor in the tool-room, took him to Snape, the boss, and told him to obey the latter, which he did; 4. At the end of eight months, and on the first day of May, 1884, there being nothing for plaintiff to do in the tool-room, he was directed by Snape to go into the boiler-shop and see if he could get any work there; and he went to the shop, where he obtained the employment in the manner and with the result herein before mentioned.

"Where the servant has equal knowledge with the master of the danger incident to the work, he takes the risk upon himself if he goes on with it": Wood on Master and Servant, sec. 349.

This doctrine presupposes that the servant has sufficient discretion to appreciate the dangers incident to the work, and has no application to the case of young and inexperienced children.

In such a case, it is the duty of the master, not only to warn the child, but to instruct him as to the dangers of the employment and the means of avoiding them.

To a mere child, like the plaintiff in this case, dangers which would be patent to the adult of experience are, or may be, latent: Coombs v. New Bedford C. Co., 102 Mass. 572; 3 Am. Rep. 506; Grizzle v. Frost, 3 Fost. & F. 622; Dowling v. Allen, 74 Mo. 16; 41 Am. Rep. 298; Railroad Co. v. Fort, 17 Wall.