court found, refused to deliver any. In such case, by the terms of the statute, "the right of selection passes to the other party." It is not necessary to resort to text-books or to the decisions of the courts. Sufficient to say, how ever, that our code states the rule accepted generally by writers upon the law of contracts and by the courts. We agree with the statement made by the learned trial court in the concluding paragraph of his written opinion:

"In this case there being no pretention that performance was even as much as attempted, it seems that under wellrecognized principles of equity the defendant should not be permitted to limit his liability to the minimum delivery required by this agreement. To do so would allow the most flagrant abuse of such an agreement."

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.

[Civ. No. 1934. Third Appellate District.-July 11, 1919.]

ETHEL JULIA WARD, as Administratrix, etc., Respondent, V. SOUTHERN PACIFIC COMPANY a (Corporation), Appellant.

[1] NEGLIGENCE-ATTEMPT TO AVOID DANGER-INJURY-CONTRIBUTORY NEGLIGENCE.-A foreman may not be charged with contributory negligence because, in seeking to escape the danger from a heavy timber caused to fall toward him through the negligence of the employees under him, he changes his position and brings himself in contact with such timber and consequently loses his life. [2] ID.-ACTION FOR DEATH-EVIDENCE-VERDICT.-In this action for damages for the death of the husband of the plaintiff through having been struck by a falling timber while engaged in tearing down and removing certain snowsheds along the line of the defendant railroad company, the jury was justified in concluding that death was due to the negligence of the defendant through its servants in violating the orders given by the deceased.

[3] ID. ALLEGATIONS OF LOSS SUFFICIENCY OF COMPLAINT.—In an action for damages for the death of the husband of the plaintiff, an allegation that the plaintiff "has been damaged through the negligence of said defendant and by the death of her husband" in a stated sum is a sufficient allegation of pecuniary loss on the part of plaintiff in the absence of objection thereto in the trial court.

[4] ID.

NEGLIGENCE OF WORKMEN-DUTY OF FOREMAN TO ANTICIPATE. A foreman is not required, as a matter of law, to anticipate that workmen employed under him will act negligently, and his right of recovery for injuries received will not be barred by their negligent acts. (Opinion of district court of appeal on denying rehear ing.)

APPEAL from a judgment of the Superior Court of Sacramento County. Charles O. Busick, Judge. Affirmed.

The facts are stated in the opinion of the court.

Devlin & Devlin for Appellant.

Hyman Zagoren, Downey, Pullen & Downey and A. M. Seymour for Respondent.

BURNETT, J.-The action was for damages for the death of Joseph G. Ward, the husband of plaintiff, and the jury found a verdict in her favor for the sum of four thousand five hundred dollars. The particular acts of negligence on the part of defendant upon which the action was based are set out in the complaint as follows: "That on and prior to the nineteenth day of May, 1916, the said defendant was engaged in the business of interstate commerce as a common carrier of freight and passengers in the county of Placer, state of California; that at said time said defendant was engaged in tearing down and removing certain snowsheds. along its railroad line near Immigrant Gap, in said county; that on said day, and immediately prior thereto, said Joseph G. Ward, deceased, was employed by said defendant as foreman of certain other employees of said defendant who were engaged in said work upon said snowsheds; that on said. day there were two other employees of said defendant, whose

true and correct names are unknown to this plaintiff and are therefore styled as John Doe and Richard Roe, who were engaged in throwing certain pieces of timber from the top of said snowsheds to the ground after removing them from said snowsheds; that while engaged in throwing said timber from the snowsheds to the ground as aforesaid, the said employees, John Doe and Richard Roe, so carelessly and negligently conducted themselves as to cause said timber which they were throwing to the ground to fall in an opposite direction from that to which they had been directed to throw it, thereby causing said timber to fall against an upright post, a portion of said snowsheds, causing said upright post to be broken away and knocked loose from the supports which maintained said upright post in an upright position. That immediately prior thereto the said Joseph G. Ward, deceased, had caused a rope to be tied to the upright post last above referred to and had caused said rope to be wound loosely around another upright post, situate about twenty feet, more or less, north of the upright post first hereinabove mentioned; that at the said time last mentioned the said Joseph G. Ward, deceased, instructed and directed another employee of said defendant, whose true and correct name is unknown to the plaintiff and who is therefore styled as Peter Smith, to manage and hold the other end of said rope in such manner as to control the falling of the upright post to a point designated by the said Joseph G. Ward, deceased; that at the time said upright post was broken away and knocked loose from its supports, through the carelessness and negligence of the said. John Doe and Richard Roe, as above mentioned, the said Peter Smith so carelessly and negligently conducted himself as to cause said upright post first above mentioned to fall upon the said Joseph G. Ward, deceased, whereby the skull of the said Joseph G. Ward was fractured and death ensued therefrom almost immediately thereafter." The claim is thus apparent that two acts of negligence concurred in producing the unfortunate result; one being the careless removal of the timber from the top of the snowshed, and the other the improper use of the rope attached to the upright, which fell against the deceased and caused his death.

The following diagram and reference points will tend to elucidate the situation:

started to fall.

F-Upright which fell.

G-Cross-beam which De Neef and
Clark rolled off.

H-End of cross-beam where De Neef
was working.

I-Upright supporting north end of cross-beam "G."

J-Upright to which Marsh tied rope. K-Joist upon which De Neef was sitting while rolling off crossbeam "G."

L-End of cross-beam where Clark was working.

M-Where plate broke when upright "F" fell.

O-Where Ward was struck by post.

W-Point where Ward and Marsh were when Ward gave orders to Marsh and Smith.

X-Post around which Smith had taken turn with rope "8" attached to upright "I."

Y-Plate that broke when cross-beam "G" was rolled off.

Z-Where Ward stood before timber

Of the undisputed facts, we may state that the two employees engaged in removing the timber from the top of the snowshed, named Clark and De Neef, at the time of the accident, were using crowbars to detach a beam, sixteen feet in length and weighing seven hundred pounds, from the top of two uprights twenty-two feet from the ground and each upright weighing about four hundred pounds. These uprights and the beam were standing on a north and south line. Clark, seated on a support near the top of the southern upright, was working at the south end of the beam, and

De Neef, similarly situated, was engaged at the north end of the beam.

The case of plaintiff, as to the first instance of negligence, really hinges upon the conduct of De Neef in prying off the northern end of the beam while the southern end was still attached to the southern upright. That this condition existed appears from the testimony of De Neef himself and of one Thomas J. Smith. As to the testimony of the former the record shows the following: "Q. Describe to the jury how the beam was removed in this particular case, how it fell to the ground if it did. A. My end of the beam seemed to go down a little ahead of the other end. Q. Describe what happened after that. A. I believe that although I am not certain-that it struck the brace, started to strike the brace which is attached to the post and in that way started the post to fall in Ward's direction, or across the track. Q. I understand you to say that your end of the beam was pried off before the other end, is that correct? A. That was evident."

Mr. Smith testified: "The end Mr. De Neef was working on came off at the plate before the other end had-dropped in kind of a diagonal, here it struck on this brace, this small end of that about where the braces were fastened to the posts somewhere in that neighborhood. It may be added that he and other witnesses illustrated their testimony and no doubt made it plainer to the jury by reference to a model of the snowshed, which model was used at the trial and also at the oral argument in this court.

The beam was fastened to the plates and uprights by spikes, and it is a reasonable, if not necessary, inference that De Neef pried off his end of the beam before Clark had loosened his from the plate to which it was spiked. Of course, this was a very important matter. They were engaged in a very dangerous business at best, but the danger to themselves and others would be greatly increased by casting one end of the beam from the uprights while the other was still attached. This would be manifest to the average juror, as indeed to anyone familiar with the fundamental laws of physics and such a simple mechanical contrivance as the snowshed. No doubt Clark and De Neef knew that the safer course-indeed, the only proper coursewas to project both ends of the beam from the uprights at