#### CAIN, Respondent, *v.*GOLD MOUNTAIN MINING COMPANY, Appellant.

(No. 1,500.)

(Submitted March 20, 1903.

Decided March 27, 1903.)

*Appeal*— Insufficiency *of Evidence.*— *Sufficiency of Specifications*—- *Talcing Case from Jury-*— *Motion to*Nonsuit— *Waiver.*

1. Code of Civil Procedure, Section 1173,, provides, *inter alia,*that, when the notice of motion for a new trial designates as the ground the insufficiency of the evidence, the statement shall specify the particulars in which such evidence is insufficient, otherwise the statement shall be disregarded. *Held,*that under a specification of the insufficiency of the evidence to support the verdict, the supreme court will not consider what the evidence does show, but only what it does not show, and a specification that the evidence is insufficient because it conclusively shows contributory negligence, etc., will be disregarded.

2. A motion for nonsuit is not waived by the moving party putting in evidence after the motion has been overruled, hut he assumes the risk of supplying any deficiency in the other party’s case by the testimony of his own witnesses.

3. upon a motion for a nonsuit, everything will be deemed to be proved which the evidence tends to prove.

4. No case should be taken from the jury unless it appears as matter of law that no recovery can be had on any view which can reasonably be drawn from the facts which the evidence tends to establish.

*530*Appeal from District Court, Jefferson Qouníyj M. 3. Par- . her, Judge.*

ActioN for personal injuries by Thomas Cain against the Gold Mountain Mining Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

Affirmed.

*Mr. Jesse B. Rooie,*and *Mr. William A. Olark, Jr.,*for Appellant.

Mr. *Richard B. Shepard*was on their brief.

When the facts are undisputed the effect of the testimony is a question of law, unless reasonable men might fairly draw different conclusions from the testimony. *(Olsen*v. *Ry. Go.,*9 IJtah, 129 ; *Bunnel*v. *Ry. Go.,*44 Pac. Pep. 927.)

When the evidence is undisputed or is of suc-h conclusive character that the court in the exercise of a sound, judicial discretion would be compelled to set aside a verdict returned in opposition to it, the court should withdraw the ease from the jury. *(Anderson*v. *Beal,*113 IT. S. 227-241; *Scofield*v. *Ry. Go.,*114 IT. S. 615; *R. R. Go.*v. *Comerse,*139 IT. S. 469-472; *Elliott*v. *Ry. Go.,*150 IT. S. 245; *Ry. Go.*v. *McDonald,*152 IT. S. 262-282; *Victor Goal Go.*v. *Muir,*20 Colo, 320-331.)

Where the facte are undisputed and but one reasonable inference can be- drawn therefrom, whether there was contributory negligence on the part of the plaintiff, is a question of law for the court. *(Butte*v. *P. V. Goal Go.,*47 Pac. Pep. 77; *Wormell*v. *Ry. Go.,*79 Me. 397; *Schepers*v. *Union Depot R. Co.,*126 Mo. 665; *Hilsenbech*v. *Qwhrmg*(N. Y.), 30 N. E. Pep.- 580; *Apsey*v. *Railroad*Go., (Mich.), 47 N. W. Pep. 513; *Naylor*v. *Railway Go.,*5,3 Wis. 661.)

Where plaintiff's own evidence shows contributory negligence, a nonsuit should be granted. *(Butte*v. *P. V. Goal Go.,*47 PaG. 77; *Hott*v. *Peters,*55 Wis. 405 ; *Hoyt*v. *City of Hudson,*41 Wis. 105.)

If the evidence introduced by the plaintiff establishes the *531defense of contributory negligence the motion for a nonsuit should be granted. *(McQuillcen r. C. P. P. B. Go.,*50 Cal. S.)

Plaintiff knowing, as shown by the undisputed evidence, the dangerous position one would be placed in in entering the tunnel, then when he voluntarily entered it, he assumed the risks arising from his position and condition, and the court should have granted defendant’s motion for a nonsuit. *(Bunt*v. *Mining Go.,*11 Sawyer, 178; *Bunt*v. *Miming Go.,*138 IJ. S. 483; *OooTc*v. *Mining Go.,*12 TJtah, 57; *Kilroy*v. *Foss,*161 Mass. 138; *Naylor*v. *Railway Go.,*53 Wis. 661; *Victor Goal Go.*v. *Muir,*20 Oblo. 320.)

The rule at one time seamed *to*prevail that if there is a *scintilla*of evidence, the case must go to the jury, is now abandoned by nearly all the courts. If the court would set aside a verdict for plaintiff, a, nonsuit should he granted. *(Connor*v. *Giles,*76 Me. 132-134; *McQuillcen*v. *C. P. B. B. Go.,*50'Cal. 8.) ,

Where the facts are undisputed and but one reasonable inference can be drawn therefrom, whether there was contributory negligence on the part of plaintiff is a question of law for the court. *(Fowler*v. *P. V. Goal Go'.,*52 Pae. Pep. 594; *Kilroy*v. *Foss,*161 Mass. 138; Section 1004 of the Code of Civil Procedure of Montana., and cases cited.)

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. If a servant from any source has the same information that! the master has he is bound to act on it. (Wood on Master and Servant, Secs 349 and 372; *Chicago & Alton B. B.*v. *Monroe,*85 Ill. 25; *Mad River & L. E. B. B.*v. Barber, 5 Ohio St. 541; *McMillan*v. *Saratoga & W. B. B. Go.,*20 Barb. 449; *Thayer*v. *St. Louis <& G. B. B. Go.,*22 Ind. 556; *Buzzell*v. *Laconia Mfg. Go.,*48 Me. 113; *Crutchfield*v. *Richmond <& D. B. B. Go.,*78 N. C. 300.)

*Mr. T. J. Walsh,*for Respondent.

If it was error in the court to overrule the motion for non-suit, that error was waived when the defendant proceeded with *532tbe case, and it cannot now be reviewed. . *(Bogle*v. *Gassert,*149 IT. S. 17; *U. P. Go.*v. *Callaghan,*161 IJ. S. 91; *Hansen*v. *Boyd,*161 U. S. 397; *Lynch*v. *Johnson,*67 N. W. 908; *Lake Shore*v. *Richards,*152 Ills. 59; *Thompson*v. *Avery,*39 Pac. 829; *Hobson*v. *Milk Go.,*49 N. T. S. 209; *Pollock*v. *Iron Works Go.,*157 N. T. 699; *Tot'len*v. *Bwrhans,*61 N. W. 58; *Bowmcm*v. *Bppinger,*44 N. W. 1000; *Illstad*v. *Anderson,*49 N. W. 659.)

Tbe ease, viewed simply as involving tbe proposition as to whether the plaintiff is to be deemed conclusively to have known that a car could not pass a man in the tunnel, is analogous to that large class of cases in which railroad employes sue to recover for injuries sustained by coming in contact with struct nres too close to tbe railroad track. Tbe duties of their position frequently require them to pass these places and repass them, and tbe question arises as to whether they are not to be deemed conclusively to know that the structures are too near and so near as to' be dangerous. The modern rule is that except under the most extraordinary circumstances no conclusive presumption of knowledge can be indulged by the court. *(Potter ■v., Ddroit,*81 N. W. 80'; *Wood*v. *Louisville,*88 Fed. 44; *Southern Kansas Ry.*v. *Michaels,*46 Pac. 938; *Valley Ry. Go. Keegan,*87 Fed. 849 ; *New York*v. *Railroad Go.,*41 N. E. 1037; *Whipple*v. *New York,*35 At. 305; *Dorsey*v. *R. R. Go.,*42 Wis. 598; *Murphy*v. *Wabash,*21 S. W. 862; *Johnson*v. *Ry. Go.,*44 Nl W. 884;' *Pidcock*v. *U. P. Ry. Go.,*19 Pac. 193; *Sweet*v. *Ry. Go.,*49 N. W. 882; *Johnstone*v. *Oregon,*31 Pac. 283; *Boss*v. *N. P.,*49 N.' W. 655; *Kelleher*v. *Milwaukee Ry. Go.,*50 N. W. 942; *Keist*v. *Ry. Go.,*81 N. W. 181; *Voorhees*v. *L. S. & M. S. Ry. Go.,*44 At. 335 ; *Galveston*v. *Ry. Go.,*47 S. W. 1050; *Guthrie*v. *Louisville,*47 Am. Pep. 286; *Kelley*v. *Fourth of*July. *Go.,*16 Mont. 484.)

When a servant is put in imminent peril by the negligence of the master, he is not to be charged with contributory negligence by reason of the fact that be does not do tbe safest thing under tbe circumstances, or act with tbe same degree of prudence that be would under conditions permitting greater delib*533eration and calmer thought. *(Hass*v. *By. Go.,*57 N. W. 894; *International*v. *Neff,*28 S. W. 283; *Gulf By. Go.*v. *Knott,*36 S. W. 491.)

ME. JUSTICE HOLLOWAY

delivered tbe opinion of tbe court.

Tbe plaintiff, Thomas Cain, was employed as a miner by the defendant, tbe Gold Mountain Mining Company, in tbe Euby mine, in Jefferson; county, Montana, working in the slopes getting out ore1. Tbe operations of that portion of tbe mine were reached through a tunnel about 600 feet in length. A track of iron rails was laid in tbe tunnel, and ordinary tram cars were used to haul out the ore and waste. Tbe tunnel bad sufficient grade that tbe cars ran out by force of gravity and with considerable velocity. On January 19, 1898, tbe plaintiff left bis work in tbe stopes, went to tbe mouth of tbe tunnel, and, in attempting to return to bis work, met a loaded car, and was by it crushed against tbe side of tbe tunnel and severely injured. He brought this action for damages, alleging negligence on tbe part of tbe defendant company in that tbe tunnel through which be bad to go to bis work was too narrow to permit a man and car to pass in it. Tbe answer denied any negligence on tbe part of tbe defendant; alleged contributory negligence on tbe part of the plaintiff; that tbe plaintiff assumed the risks incident to bis employment when be went to; work for tbe defendant company; and that tbe narrowness of tbe tunnel was apparent to the plaintiff, and constituted a risk which be so assumed. Upon tbe trial of tbe cause, after tbe plaintiff x-ested, tbe defendant interposed a motion for a nonsuit, which was overruled, and defendant then offered its testimony. A verdict in favor of tbe plaintiff for $2,500 was returned, and from a judgment entered'on that verdict^ and from an order overruling defendant’s motion for a new trial, these appeals are prosecuted.

Tbe only errors relied upon are, first, tbe insufficiency of tbe evidence to justify tbe verdict;, and, second, error of tbe court in refusing to grant defendant’s motion for a nonsuit.

*5341. The specifications of insufficiency of the evidence to justify the verdict are alike, and are wholly inadequate for the purpose intended. In form they are substantially as follows: The evidence is insufficient to support the verdict in this: that the evidence conclusively shows contributory negligence on the part of the plaintiff, knowledge of certain facts on his part, or something to the same effect. Section 1113 of the Code of Civil Procedure, among other things, provides: “When the notice of the motion designates as the ground of the motion the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. ** * **If no such specifications be made the statement shall be disregarded on the hearing of the motion.” Under a specification of the insufficiency of the' evidence to- support the verdict, this court will not consider'' what the evidence does show, but only what it fails to show *(First Nat’l Bank*v. *Roberts,*9 Mont. 323, 23 Pac. 718; *Zickler*v. *Deegan,*16 Mont. 198, 40 Pac. 410; *Bardwell*v. *Anderson,*18 Mont. 528, 46 Pac. 443; *Kumle*v. *Grand Lodge,*110 Cal. 204, 42 Pac. 634; *Dawson*v. *Schloss,*93 Cal. 194, 29 Pac. 31), and, the specifications having wholly failed to point out any particulars in which the evidence is insufficient to support the verdict, we are bound by the terms of Section 1173, above, to disregard them on this hearing.

2. Did the district court err in overruling defendant’s motion for a nonsuit ? The respondent contends that this question is not before this court, and that the error, if error at all, was waived' by the defendant when it proceeded to put in its evidence after the motion had been denied. Upon this proposition the courts are hopelessly divided in opinion. All the federal courts, and a number of Hie state courts, hold that the motion for nonsuit is waived by the moving party putting in evidence afterwards; while, on the other hand, very respeotable authorities hold to the contrary. It can hardly be said to be unfair to the lower court for this court to review its action in overruling a motion for a nonsuit merely because other testimony has been offered since that ruling was made, for, upon *535sucb bearing in tbis court, tbe alleged error will be treated from tbe standpoint of tbe district court, and witb reference to tbe evidence it bad before it in making tbe ruling, and not otherwise. It would seem that tbe better rule is that tbe motion is not waived, any more tban a demurrer is waived by pleading further after tbe demurrer bas been overruled. However, tbe defendant assumes tbe risk of supplying the deficiency in tbe plaintiff’s case by testimony elicited from bis witnesses, and, if sucb occurs, tbe error in overruling tbe motion would be entirely cured. Tbis is tbe doctrine adhered to in California, Oregon, Washington, Colorado, Utah (by statute), and Missouri. *(Elmore*v. Elmore, 114 Cal. 516, 46 Pac. 458; *Ferguson*v. Ingle, 38 Oregon, 43, 62 Pac. 760; *Matson*v. *Port Townsend; etc. Co.,*9 Wash. 449, 37 Pac. 705; *Alta Investment Co.*v. *Worden,*25 Colo. 215, 53 Pac. 1047; *Weber*v. *Kansas City C. Ry. Co.;*100 Mo. 205, 13 S. W. 587, 7 L. R. A. 819, 18 Am. St. Rep. 541.) In tbis state it bas heretofore been an open question. *(T. C. Power & Bro.*v. Stocking, 26 Mont. 478, 68 Pac. 857.)

Considered from tbe standpoint of the district court in passing upon tbe motion for a nonsuit, we are satisfied that no error was committed in overruling it. Tbe evidence was sufficient to go to tbe jury. Upon a, motion for a nonsuit, everything will be deemed to1 be proved which tbe evidence tends to prove. *(State ex rel. Pigott*v. *Benton,*13 Mont. 306, 34 Pac. 301; *Morse*v. *Granite County*Commissioners, 19 Mont. 450, 48 Pac. 745.) Tbe rule is well established “that no cause should ever be withdrawn from the jury unless tbe conclusion from tbe facts necessarily follows, as a matter of law, that no recovery could be bad upon any view which could reasonably be drawn from the facts which the evidence tends to establish.” *(Great Northern Ry. Co.*v. McLaughlin, 17 C. C. A. 330, 70 Fed. 669.)

For the reasons herein set forth, the judgment and order appealed from are affirmed.

*Affirmed.*