Sterne

This is an appeal by defendant from a judgment in favor of plaintiff for seven thousand dollars damages for personal injuries, alleged to have been suffered by him through the negligence of defendant, and from an order denying its motion for a new trial.

Plaintiff, a boy nearly seventeen years of age, was in the employ of defendant at its mine in Mariposa County. There was a hoisting plant operated by steam used in the mining work, and plaintiff was employed as fireman and in assisting around the engine used as a part of such hoisting plant, and to perform certain other duties such as running the air compressor, etc., and there was evidence sufficient to sustain a conclusion that he was required to work wherever directed by one Pettis, the engineer of defendant. On March 13, 1903, certain repair work was done on the bearings on the pillow block of the hoist, on which bearings revolved the shaft of a cogged wheel. This work was done by Maguire, the general foreman and representative of the company at the mine, Pettis, Mills (a machinist), and one Thom. This work having apparently been satisfactorily completed, Maguire ordered the engineer to start up the engine, and he and Thom…

I dissent from the order denying a rehearing upon the ground that the error of the superior court was, in view of all the evidence in the ease, without prejudice. The answer of plaintiff which the court refused to strike out meant nothing more than that a socket wrench would not have slipped, and, as to that, there was no controversy. One of the defendant’s witnesses testified to the same effect.v