gence, 214; Dale v. St. Louis R. R. Co., 63 Mo. 455; Mehan v. Syracuse etc. R. R. Co., 73 N. Y. 585.)

It has been expressly held that mere continuance of a servant in his work in the face of a known danger only raises a question for the jury. (McMahon v. Port Henry Iron Co., 24 Hun, 48; Hawley v. Northern Central R. R. Co., 17 Hun, 195; 82 N. Y. 370.)

In fact, judgments for damages have been sustained in many cases where the servant had knowledge of the particular defect or danger which resulted in his injury. (Clarke v. Holmes, reported in 2 Seymour on Negligence, 953; Fairbank v. Haentzsche, 73 Ill. 236; Dorsey v. Phillips, 42 Wis. 583.)

In Clark v. Holmes, supra, Cockburn, C. J., said: "But the question whether the injury of which plaintiff complains is to be ascribed wholly to the negligence of the defendant, or whether the plaintiff had any share in bringing it about, is one wholly for the jury."

The motion for nonsuit was properly overruled. Consistently with the views above expressed, we not disturb the order denying the motion for a new trial. There is no evidence that the plaintiff knew of the particular defect or danger which resulted in his injury. He knew that cattle had previously been on the track, but he did not know that effective measures had not been taken before the occurrence of which he complains, to prevent their coming on. We think he had a right to assume that such measures had been taken as would prevent the recurrence of that danger. At least, there was evidence to justify the jury in finding that he had no knowledge of the particular defect or danger which resulted in his injury.

In Trask v. Cal. S. R. R. Co., 63 Cal. 96, where a trainhand was injured, and the court found that the injury was caused by the unskillful, improper, and negligent manner in which the defendant constructed its road, it was held that "the plaintiff did not assume the risk

arising from the unskillful, improper, and negligent manner in which defendant's road was constructed."

"It has been often said that the master is not liable for defects in such things to a servant whose means of knowledge thereof were equal to those of the master. But this is an erroneous statement. The master has no right to assume that the servant will use such means of knowledge, because it is not part of the duty of the servant to inquire into the sufficiency of these things. The servant has a right to rely upon the master's inquiry, because it is the master's duty so to inquire; and the servant may justly assume that all these things are fit and suitable for the use which he is directed to make of them. The true definition is, that when circumstances make it the duty of the servant to inquire, it is contributory negligence on his part not to inquire. A servant is chargeable with actual notice as to matters concerning which it was his duty to inquire; and especially should this rule be applied where the servant's action is founded upon the assumption that the master ought to have known of something which he did not actually know." (Shearman and Redfield on Negligence, sec. 287.)

We think that rule fairly deducible from a majority of the cases in which the question was involved. There are cases, however, to the contrary, at least, seemingly so, among which is Sweeney v. C. P. R. R. Co., 57 Cal. 15, in which it was held that a new trial was properly granted on the ground of insufficiency of the evidence to justify the verdict, because "from the testimony of the plaintiff's witnesses, and as the case stood when the plaintiff rested, it would hardly be rational to deny he had known for months, indeed years, before the accident which caused his death, that the road at or for miles each side of the point where the collision occurred was not protected by fences and cattle-guards; and being an intelligent, reasonable human being, and engaged constantly as a locomotive engineer over this particular portion of the road,

he must be deemed to have known that cattle were likely to intrude upon the track, and that thereby there was danger of just such an accident as resulted in his death."

In that case, the motion for a new trial was granted. In this case, it was denied. In that case, it does not appear that the road had ever been fenced, a fact of which an employee might more reasonably be supposed to take notice than of the fact that there was a defect in an existing fence.

And a very large discretion has been accorded to trial courts in the matter of granting or refusing new trials in this state. But we will not attempt to parry the force of that decision by suggesting a distinction which is not obvious.

The principle upon which the court proceeded in that case is not, in our opinion, supported by the weight of authority, and does not commend itself to our favorable consideration.

We think the question of the plaintiff's knowledge of the danger to which he was exposed by reason of the omission to fence the road was one for the jury.

In this case we are satisfied that the verdict of the jury ought not to be disturbed on the ground that it was not justified by the evidence.

It appears to us that the questions discussed were fairly submitted to the jury by the court in its instructions. Judgment and order affirmed.

THORNTON, J., BEATTY, C. J., and WORKS, J., concurred.

[No. 12531. In Bank.-March 21, 1889.]

JAMES W. GATES, RESPONDENT, v. CARQUINEZ PACKING COMPANY, APPELLANT.

SALE DELIVERY TO CARRIER-CONSTRUCTION OF CONTRACT.-Under a contract for the sale of fruit, to be shipped to the buyer by a specified carrier at the expense of the buyer, a daily statement of weights of fruit shipped to be forwarded to the buyer, and the fruit to be weighed by the buyer at place of destination, and notice given to the seller of a substantial difference in weights, and thereupon the fruit to be held for twelve hours for adjustment of weights, the shipping weight to be conclusively taken as correct upon failure to give such notice, held, that the fruit was delivered to the buyer immediately upon its delivery to the carrier, and that loss from shrinkage in weight during trànsit, attributable to natural causes, must be borne by the buyer, notwithstanding the right given by the contract to the buyer to weigh the goods at the place of destination.

APPEAL from a judgment of the Superior Court of Solano County.

The facts are stated in the opinion.

George A. Lamont, for Appellant.

J. F. Wendell, and O. P. Dobbins, for Respondent.

BELCHER, C. C.-This action was brought to recover the sum of $301.60, balance alleged to be due for fruit. sold and delivered by plaintiff to defendant. The court below gave judgment for plaintiff, and defendant appealed.

The facts are these: The plaintiff owned a tract of land in Vaca valley, on which he was raising apricots, peaches, and Bartlett pears, and the defendant was engaged in the business of canning fruit at Benicia. On the 15th of October, 1886, the parties entered into a written contract for the sale and purchase of the fruit to be raised on the plaintiff's trees during the five years then next ensuing. The portions of the contract material to the determination of the questions presented on this appeal are as follows:

"Said party of the first part sells, and said party of the second part buys, said fruit, upon the terms and conditions hereinafter expressed. The party of the first part, at his own cost and expense, shall, during said term, gather said fruit each season when the same is in a suitable condition of ripeness for canning purposes, and deliver the same on board the cars at the railroad station at Vacaville, in said Solano County, consigned to party of the second part at Benicia, in open fifty-pound boxes, such as are now used to transport fruit from said point to canneries. Freight from Vacaville to Benicia, and all charges thereafter, to be paid by said party of the second part.

"Said fruit shall be consigned to the party of the second part at its cannery at Benicia, in said Solano County, and immediately upon its arrival at said cannery shall be weighed by said party of the second part.

"The party of the first part shall send to the party of the second part, at the cannery at Benicia, a daily statement of the weights of the fruits shipped that day, and in case the weight at the cannery shall not substantially correspond with the same, or in case the quality of the fruit shall not be according to contract as herein provided, the party of the first part shall be immediately notified by telephone or telegraph, and the fruit shall be held twelve hours for inspection and adjustment of weights, and arrangement as to rebate in case of defective quality, should the party of the second part be willing to accept the same at a rebate. Should said party of the second part fail to give such notice, or so hold said fruit, the quality of the fruit and the shipping weight shall be conclusively taken as correct."

It is further provided in the contract that the fruit "so delivered" shall be of certain sizes and quality, and that for "the fruit so delivered" the party of the second part shall pay certain named prices.