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This is an appeal from a judgment of nonsuit in an action for personal injuries.

The case has already been before the supreme court, where it was held that the plaintiff was a casual employee, and therefore not entitled to compensation under the Workmen’s Compensation Act (Maryland Casualty Co. v. Pillsbury, 172 Cal. 748 , [ 158 Pac. 1031 ]). Plaintiff thus being relegated to an action for damages, he seeks judgment against defendant, by whom he was employed at the time of the injury complained of, alleging that defendant was negligent in two particulars: First, in that he supplied an improper helper, whose negligence contributed to the injury; second, that he failed to supply proper tools with which to do the work. To avoid the common-law defenses on the part of the defendant of assumption of risk and act of fellow-servant, plaintiff contends that the provisions of section 1 of the Roseberry Act (Stats. 1911, p. 796), abolishing these defenses and modifying the defense of contributory negligencé were not repealed by the Boynton Act (Stats. 1913, p. 279), and that they govern this action.

[1] Whether this be time or not, a discussion of the question becomes unnecessary, for, in…