county and was hurt in the eye by a piece of timber in the course of his employment. The complaint alleges that at the time of said injury defendant maintained and operated in connection with his lumber-mill a certain machine known as a "hog," which was used for grinding and cutting up edg. ings and waste pieces of lumber into small pieces to be conveyed to the furnaces in said mill to be burned. That such waste pieces of lumber were conveyed to said "hog" from the main floor of said mill by means of a chute about eight feet wide at the lower end and had sloping sides so that said waste pieces of lumber would slide down said chute and into said "hog." Said chute was inclined at an angle of fortyfive degrees. It is further alleged that the sides, bottom and end of said chute were constructed of planks about two inches thick, and that said chute was partially covered on the inside with sheet iron or boiler iron, so as to prevent the edgings and other pieces of waste lumber from coming into contact with the planking of said chute, thereby preventing said planking from becoming worn and damaged and also to prevent said waste pieces from protruding through sides or end of said chute. That on December 17, 1902, the day of the accident, and for a long time prior thereto defendant maintained said chute in an unsafe, defective and dangerous condition in this: That the planks of the end or face thereof were so negligently and carelessly fastened that one of said planks became and was loose and dropped down at one end, thereby leaving a crack or hole in the end or face of said chute about three inches wide, through which edgings and other pieces of waste lumber could pass, thereby rendering said chute defective, dangerous and unsafe. That on said day and for ten days prior thereto, plaintiff was and had been employed by defendant to attend said "hog," and that on said day plaintiff was engaged in attending said “hog” in pursuance of said employment. That in order to perform his duties it was necessary for him to stand near said "hog" and directly in front of the end or face of said chute and very close to the end thereof, and with the aid of an iron bar stir up the edgings and other pieces of lumber that might be thrown into said chute, so that they would slide down said chute and into said “hog,” and in order to perform said work it was necessary for plaintiff to stand very close to the end of said chute. That on said day, while plaintiff was in the per

a

formance of his duties a piece of edging about six feet long was violently forced through said hole or crack in the end or face of said chute and struck plaintiff in the left eye, and and so impaired it that it had to be and was removed.

The appeal is here on a bill of exceptions containing th: evidence, but as it is admitted that there is a conflict in the evidence on all the material issues raised by the pleadings, and no errors in the admission of evidence being pointed out, we will not consider the evidence at all. The answer denies specifically all the allegations of the complaint and alleges that the injury suffered by plaintiff was caused by one of the ordinary risks of the employment in which he was engaged, and which he assumed and of which he had full knowledge, and that the injury suffered by plaintiff was proximately and directly caused by reason of his own carelessness and negligence. Error is assigned by appellant in giving so much of instruction eight as we place in italics. The whole instruction reads as follows: “The defendant also alleges that the injury suffered by plaintiff was caused by one of the ordinary risks of the employment in which plaintiff was engaged and which he assumed and of which he had full knowledge, but I charge you that while the servant assumes all the ordinary risks of the business in which he is employed, yet he does not assume the risk from defective premises, machinery or structures furnished him by the master, if the defect was either known to the master or could have been discovered by him by a reasonabiy careful inspection to discover defects; unless the servant also knew the dangers and risks arising therefrom; and I charge you that a servant will be held to have known of such defect only when he had actual knowledge thereof, or when the defect was so obvious that he must have known or simply refused to open his eyes and see, or when he was put upon inquiry by some discovery or suggestion of danger which it was gross negligence for him to neglect. And I charge you that the burden of showing such knowledge on the part of the plaintiff rests on defendant."

This instruction was given and upheld in Silveira v. Iversen, 128 Cal. 187, [60 Pac. 687). But appellant insists the doctrine thus laid down was overruled in Thompson v. California Const. Co., 148 Cal. 35, [82 Pac. 368). In that case a like instruction was given, and upon a motion for a new trial being made, the lower court granted the motion upon the sole ground that it had made an error in giving the following instruction: “It is the duty of the employer to furnish an employee with a reasonably safe place in which to do any work the employer shall require of the employee, and to keep that place reasonably safe, and the employee has the right to assume that the employer has performed that duty, and the employee is not required to use any degree of care or diligence to discover danger to which he shall be exposed by reason of the failure of his employer to do his duty, and the employee shall be held to have assumed the risk only when he knew, and will be held to have known only when the danger was so obvious that he must have known or simply neglected to open his eyes and see, or when he was put upon inquiry by some discovery or suggestion of danger which it was gross carelessness for him to neglect."

I do not think instruction eight in the case at bar is subject to the criticism made in Thompson v. California Const. Co., 148 Cal. 35, [82 Pac. 368). The following instruction

. , nine might be. The objection is taken to the italicized part, and it reads as follows: “I instruct you that the servant is not required to use any degree of care or diligence to discover defects. It is not his duty to inquire into the safety of the machinery or structures or place of work furnished him by the master with or upon which to do work. The servant has a right to rely upon the master to furnish him a reasonably safe place to work and reasonably safe machinery and structures to work with, because it is the master's duty to do so, and the servant may justly assume that the master has done his duty and furnished him such reasonably safe place, machinery and structure.'

This instruction, or that part objected to, would be error standing alone. But with the words of instruction 8 ringing in their ears how could it be possible under these words, the • servant is not required to use any degree of care or diligence to discover defects,” to understand that if the danger was one that he could not help seeing, and the plaintiff did see, and yet kept on at work with such danger staring him in the face, and under such circumstances he would not assume the risk himself? Besides, the court, in Thompson v. California Const. Co., 148 Cal. 35, [82 Pac. 368), says: “We express no opinion upon the question whether or not this part of the instruction was correct as applies to this partic. ular case.

The court then cites sections 1970 and 1971, Civil Code, which it says is declarative of the law upon this subject and these sections read as follows:

"1970. An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless the negligence causing the injury was committed in the per. formance of a duty the employer owes by law to the employee, or unless the employer has neglected to use ordinary care in the selection of the culpable employee."

"1971. An employer must in all cases indemnify his employee for losses caused by the former's want of ordinary

care."

Applying the instruction to this case where there was a hole three inches wide in the end or face of said chute through which edgings and other pieces of lumber could pass, rendering the chute dangerous and unsafe for any person to work around it, and it was while the chute was in this condition and plaintiff working around and about it and in front of the end or face very close to the end of the chute, that a piece of edging or lumber about six feet long was forced through said hole and struck him in the eye. It would seem to us that under instructions 8 and 9, reading them together, as the court must have done, the jury must have understood that if the plaintiff could have observed this three-inch holes while standing where and as close to it as he was required to to perform his labor and without hunting around to find it, and kept on at work, he would be contributing to the neg. ligence and likewise to the injury, and thus under said instructions would not be entitled to recover, and the burden of proving this knowledge on the part of the plaintiff was upon the defendant. Thus considering the two instructions, we do not think that there was any reversible error in them. The following instruction is assigned as error: “The preponderance of evidence in a case is not alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify; their conduct and demeanor while testifying; their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements, in view of all the other evidence, facts and circumstances proved in the trial; and from all these circumstances determine upon which side is the weight or preponderance of the evi. dence." It is claimed that this instruction is argumentative. It does not appear so to us. The court has simply told the jury the common-sense circumstances known to every intelligent juror by which the statements made by witnesses may be weighed. The court is not limited to the circumstances enumerated in sections 1847 and 2061 of the Code of Civil Procedure. (People v. Miles, 143 Cal. 640, (77 Pac. 666].) This instruction is general and not applied to any particular witness, and is therefore not subject to the criticism made in People v. Hertz, 105 Cal. 663, (39 Pac, 32), People v. Shattuck, 109 Cal. 681, (42 Pac. 315), and People v. Van Ewen, 111 Cal. 149, (43 Pac. 520]. In the case of People v. O'Brien, 130 Cal. 1, [62 Pac. 297], a criminal case, the lower court, after having instructed the jury as to admissibility of circumstantial evidence or presumptive evidence, further in. structed them as follows: “When direct evidence cannot be produced, minds will form their judgments on circumstances, and act on the probabilities of the case. The supreme court held this language to be clearly erroneous, declaring that, “In its explicit statement it purported merely to state a very common, though not always commendable, tendency of the human mind to act on probabilities and without satisfactory evidence, but it implied that the jury were at liberty to pursue this course. But the law requires the jury to be satisfied or convinced of the guilt of the accused before convicting. and hence permits them to act only on evidence sufficient to produce belief or conviction, or, as expressed in the code, on 'that degree of proof which produces conviction in an un. prejudiced mind.'". But this is not a criminal case where the liability of the defendant must be established beyond a reasonable doubt. We think the reasoning of the supreme court in People v. O'Brien, 130 Cal. 1, [62 Pac. 297], has no appli. cation to a civil action. In a civil case “the weight of the evidence or preponderance of the probabilities is sufficient to establish a fact.” (Murphy v. Waterhouse, 113 Cal. 467,