Palmer v. Howard, 72 Cal. 293, 1 Am. St. Rep. 60, is full of meaning, and sheds a flood of light upon this question of construction. It is there said: "But, in applying this rule, it must be remembered in general that the policy of the law is against upholding secret liens and charges to the injury of innocent purchasers or encumbrancers for value, and, in particular, that mortgages of personal property are permitted only in certain specified cases, and then only upon the observance of certain formalities, designed to secure good faith and to give notice to the world of the character of the transaction. These provisions as to mortgages cannot be evaded by any mere shuffling of words. When it is clear from the whole transaction that for all practical purposes the ownership of property was intended to be transferred, and that the seller only intended to reserve a security for the price, any characterization of the transaction by the parties, or any denial of its legal effect, will not be regarded. The question, it is true, is one of intention; but the intention must be collected from the whole transaction, and not from any particular feature of it." (See, also, Walls v. Preston, 25 Cal. 63.) For the foregoing reasons we conclude this contract was an attempt to obtain the advantages of a chattel mortgage without complying with the provisions of the statute upon that subject.

As a condition precedent to the beginning of this action, plaintiff made a demand upon the attaching officer for the return of the property attached. It is now claimed by defendant that the demand was materially defective; but, without passing upon that question, we are able to say the written demand is pregnant with meaning, as showing the interest claimed by plaintiff in this grain. In that demand it is clearly shown what plaintiff considered the status of this property to be, and also the construction put upon this contract by it. In its demand upon the sheriff, plaintiff did not even claim to be the owner of the property, but simply asserted a lien thereon. The demand asserts that said crops "were,

and are now, subject to the lien of the Stockton Savings. and Loan Society for rent reserved, to the amount of two thousand one hundred and forty dollars." Above every one else, the plaintiff should know what its own intentions were in entering into this contract.

There are some cases which would seem to be opposed to the views here expressed, notably Smith v. Atkins, 18 Vt. 461, Edson v. Colburn, 28 Vt. 631, 67 Am. Dec. 730, and Andrew v. Newcomb, 32 N. Y. 417. With those cases we will not here deal. Possibly, to a large degree, those decisions were made from necessity, by reason of the absence of any chattel mortgage act, but we pass them. by, and come to a consideration of the cases found in our own reports upon this question. The first and principal case in this state, and which at first glance seemingly looks the other way from the views we have expressed, is Howell v. Foster, 65 Cal. 169. The conclusion there arrived at is based upon the decisions we have cited from other states; but, whatever the court might do if another case with identical facts to those there shown was presented before it, it is unnecessary to say, for this case is different in material respects from Howell v. Foster, supra. That was not a case of cash rent. Indeed, there is no agreement to pay any rent whatever. The word "rent," or its equivalent, is not found at any place in the contract. It is practically a contract for hiring, the wages of the man performing the labor and cultivating the land to be paid by threefourths of the grain raised upon the land, delivered to him by the owner, after deducting certain moneys for advances previously made. Wentworth v. Miller, 53 Cal. 9, Sunol v. Molloy, 63 Cal. 369, and Blum v. McHugh, 92 Cal. 497, which are cited in respondent's brief, are not in point upon the question here involved.

For the foregoing reasons the judgment is reversed and the cause remanded.

HARRISON, J., VAN FLEET, J., MCFARLAND, J., TEMPLE, J., and HENSHAW, J., concurred.

[L. A. No. 22. Department Two.-April 1, 1896.]

PATRICK F. RYAN, RESPONDENT, v. LOS ANGELES ICE AND COLD STORAGE COMPANY, APPELLANT.

NEGLIGENCE EXPLOSION OF GAS GENERATOR EMPLOYMENT OF INEXPE RIENCED MEN-ABSENCE OF PROPER INSTRUCTIONS.-In an action to recover damages for personal injuries caused by the explosion of a gas generator, where it appears that the plaintiff was inexperienced, aud that the explosion was caused by the defendant allowing the plaintiff and another inexperienced man to tighten the nuts on the bolts upon the gas generator with an increasing pressure of gas, without proper warning to them of the danger, and of the care and skill required to make the pressure an equal strain upon all the parts of the generator, a verdict for the plaintiff will not be disturbed upon appeal. ID. UNFORESEEN CAUSE-LIABILITY OF DEFENDANT.-The fact that the cause of the accident was unforeseen, and that the defendant did not know that it would probably occur, cannot relieve the defendant from liability resulting from the employment of unskilled and inexperienced workmen to do a dangerous task, without proper warning and instruction as to the danger, and as to the proper manner of doing the work. ID. INSTRUCTION-PROVINCE OF JURY-MATTERS OF FACT HYPOTHETICALLY An instruction does not invade the province of the jury as to matters of fact, where it states facts hypothetically which are within the issues, and instructs the jury to find for the plaintiff or for the defendant, according as they may find, by a preponderance of evidence, whether such facts are proved or not, and does not refer to the evidence as sustaining, or tending to sustain, any fact. ID. FELLOW-SERVANTS-ENGINEER IN CONTROL AS MANAGER-INSTRUCTION.-It is not error to refuse to instruct the jury that an engineer having sole charge of the generator in the absence of the superintendent and general manager, and under whose direction the work of tightening the bolts was done by inexperienced men, was a fellow-servant of the plaintiff, it appearing that such engineer had the same power to control the men, in the absence of the general manager, that the latter had when he was present.

-

STATED.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. W. H. CLARK, Judge.

The facts are stated in the opinion.

Wells & Lee, and Calvin Edgerton, for Appellant.

The evidence shows that plaintiff had been thoroughly instructed as to the nature of the work, the manner in which it should be done, and the danger of not doing it

in accordance with the instructions given. The jury ought to have found, as matter of law, that plaintiff was not inexperienced and without knowledge of the danger incurred from doing the work. (Ingerman v. Moore, 90 Cal. 423; 25 Am. St. Rep. 138.) This was an accident arising from an unforeseen and unaccountable cause, the consequences of which cannot with certainty be traced to the negligence of the defendant, and the court is powerless to render relief. (Cahill v. Hilton, 106 N. Y. 512; Milwaukee etc. Ry. Co. v. Kellogg, 94 U. S. 469-75; Goshen etc. Turnpike Co. v. Sears, 7 Conn. 86; Phillipps v. Dickerson, 85 Ill. 14; 28 Am. Rep. 607; Hart v. Allen, 2 Watts, 116; Henry v. Southern Pac. R. R. Co., 50 Cal. 183; Sjogren v. Hall, 53 Mich. 274; Wabash etc. Ry. Co. v. Locke, 112 Ind. 404; 2 Am. St. Rep. 193; Loonam v. Brockway, 28 How. Pr. 473, 474; Iron etc. Works v. Nuttall, 119 Pa. St. 158; Atlas Engine Works v. Randall, 100 Ind. 293; 50 Am. Rep. 798; Hickey v. Taaffe, 105 N. Y. 26; Burke v. Witherbee, 98 N. Y. 562; Buckley v. Gutta Percha etc. Mfg. Co., 113 N. Y. 540; Kean v. Detroit Mills, 66 Mich. 277; 11 Am. St. Rep. 492; Schroeder v. Michigan Car Co., 56 Mich. 135; Sanborn v. Atchison etc. R. R. Co., 35 Kan. 292; Palmer v. Harrison, 57 Mich. 182–84; Prentiss v. Kent Mfg. Co., 63 Mich. 478.) Employers are only bound to give such instructions as are reasonably necessary to guard employees against danger. Ciriack v. Merchants' etc. Co., 146 Mass. 182; 4 Am. St. Rep. 307; Russell v. Tillotson, 140 Mass. 201; Melzer v. Peninsula Car Co., 76 Mich. 94-100; Foley v. Pettee Machine Works, 149 Mass. 294-97; Berger v. St. Paul etc. Ry. Co., 39 Minn. 78; Goodnow v. Walpole Emery Mill, 146 Mass. 261.) The verdict is against law, because, upon the evidence. and plaintiff's own showing, he was not inexperienced and knew the danger, as the jury so find in their answer to question 8. (Field v. Shorb, 99 Cal. 666.) Instructions 1 and 2, given by the court of its own motion, and instructions 1 and 3 are against the provisions of the constitution, that judges shall not charge juries with respect to matters of fact, as the

court instructed the jury as to the particular evidence they were to give weight and which was alone entitled. to receive their consideration, and took from them any choice of the consideration of any other testimony by giving the equivalent of a mandatory direction to find for plaintiff on that evidence. (Kauffman v. Maier, 94 Cal. 282, 283.) The court should have granted defendant's motion for nonsuit, as there were not facts proven sufficient to constitute a cause of action, there was no evidence that the explosion occurred from screwing the machine up while it was hot or without stopping it, and it appears that plaintiff was directed to do this by the foreman, and if there was any trouble it was caused by a man in the same general employment. The refusal to give the instructions requested by the defendant was error, as they were founded upon the evidence and supported by the law.

E. H. Lamme, and Anderson & Anderson, for Respond

ent.

As the machinery was properly made, and was used by a skilled engineer for its ordinary purposes in the ordinary way, except as to tightening the bolts, the presumption must be that the explosion was caused by the manner in which, or the means by which, the nuts were being tightened. (Madden v. Occidental etc. S. S. Co., 86 Cal. 448.) When an employee is injured as a consequence of this work, without negligence on his part, as has been found by the jury, the employer is liable. (Ingerman v. Moore, 90 Cal. 421; 25 Am. St. Rep. 138.) The employee has a right to be informed of the danger, that he may decide whether or not he will do the work for the compensation he is receiving. (Baxter v. Roberts, 44 Cal. 187; 13 Am. Rep. 160.) The objections to the instructions are not well taken, as the court simply told the jury that if certain facts were found to be true, then, as a legal conclusion, their verdict should be for plaintiff.