273 F. 369 | 9th Cir. | 1921
(after stating the facts as above).
"caused by aujf accident due to a condition or conditions of such occupation, * * * in all casos in which such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured.”
By section 3159:
“The question whether the employee may have been guilty of contributory negligence, or has assumed the risk, shall be a question of fact and shall at all times, regardless of the state of-the evidence relating thereto, be left to the jury, as provided in section 5 of article XVIII of the state.Constitution: Provided, however, * * * the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.”
Section 5, art 18, of the Arizona Constitution is as follows:
“Sec. 5. The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.”
'The statutes cited were considered in Calumet & Arizona Min. Co. v. Chambers, 20 Ariz. 54, 176 Pac. 839, where the court held that it was incumbent upon one who relies upon the Employers’ Liability Law to prove that while engaged in the performance of duties required of him lie was injured, and that the injuries were caused by an accident due to a condition of such employment, and not caused by the negligence of plaintiff.
Plaintiff’s evidence met the obligation imposed. Assuming that he was telling the truth, he was on his first shift, shoveling waste from the floor where he was told to work. The place was about 15 feet from the face of the drift; he did not know the height of the tunnel, except that the top was too high for him to reach with his pick; there was no timbering at the point above him, and while bending over to get a shovel
“At any time before trial, on motion of defendant, supported by affidavit showing that the plaintiff is a nonresident of the state, or that the plaintiff is not the owner of property out of which the costs could be made by execution sale, the court shall order the plaintiff to give security for the costs; and if the plaintiff fails so to do within ten days next after the order is made, the ease shall stand dismissed.”
Inasmuch as the record fails to show that the defendant saved an exception to the ruling of the court, there is no question for decision. It would seem, however, that an affidavit “showing” that plaintiff is not the owner of property out of which the costs could be made ought to contain more than the mere statement that, so far as affiant is able to ascertain, plaintiff is not the owner of any property.
We cannot agree with that position. Plaintiff below, having commenced his action within two years after the cause accrued, ought not to be denied a right to proceed with it merely because the court delayed ruling upon the demurrers or failed to make an order of election until more than two years passed after the accrual. After careful examination of the record, we find no prejudicial error, and must affirm the judgment.
Affirmed.