expressly provides that a peace officer (a sheriff or a constable, or, in certain cases, the coroner, or the deputy or deputies of either) must serve in his county any subpoena delivered to him for service, either on the part of the people or of the defendant, and must make a return of the service thereof, subscribed by him, stating the time and place of service.

There are, it is true, certain occasions on which a person not a public official and denominated an elisor may, by an order of the superior court, be designated and appointed to serve and execute legal processes or orders. This may occur where both the sheriff and the coroner are disqualified for any reason from performing that duty. (See Pol. Code, sec. 4173.) And it doubtless is correct to say that in the cases mentioned by said section an elisor, duly appointed as so provided, would be competent to serve in the county in which he resides subpoenas issued by the district attorney (Pen. Code, sec. 1326, subd. 1) for such witnesses as the grand jury, for the purposes of an investigation pending before them, may desire. But, in any case where the appointment of an elisor becomes necessary there must be a showing made of the disqualification of the sheriff and the coroner to serve and execute processes and orders. There was no such showing made in this case.

In the second place, if we assume that the grand jury, under the authority of the superior court, may legally employ persons to assist it in the investigation of crime or other matters coming within the legal competence of that body, and thereby bind the county to the payment of the expenses following from such employment, or, if it be assumed that the expenses incurred in the employment of persons other than the public official charged with such duties to subpoena witnesses for the grand jury or gather testimony to be presented to that body may be considered as coming within the expenses contemplated by subdivisions 2 and 3 of section 4307 of the Political Code, then it is very clear that the same cannot be allowed or paid until they shall have been presented and filed in the form and manner prescribed by section 4076 of the Political Code and thereupon considered, approved, and allowed as provided by section 4075 of said code. Nor has the auditor authority to audit such claims until they are so presented and filed and approved and allowed. (Pol. Code,

sec. 4091.) There are, it is true, some cases where claims against a county may be made upon an order of the judge of the superior court, or in a certain instance we have in mind (Pen. Code, sec. 869; McAllister v. Hamlin, 83 Cal. 361, [23 Pac. 357]) by a magistrate. These cases, however, are exceptions to the general rule laid down upon the subject by the legislature. In such cases, the law expressly confers upon the judge or magistrate the power to order the claims to be paid; and the judge or magistrate is then himself the auditor of the claim, the treasurer being required to pay the same upon the order of the judge and in the absence of the approval or auditing of the claim by the county auditor. But, unless there is some provision of law expressly authorizing a different course of procedure, all claims or charges against a county must be presented and filed and approved and allowed as provided by the sections of the Political Code above named, in which cases only is the auditor required to interpose his official approval as a prerequisite to the payment thereof by the treasurer. As was said by this court in White v. Mathews, 29 Cal. App. 634, [156 Pac. 372]: "We must look only to the statute to ascertain the extent of the authority of any tribunal to determine and fix the liability of the county for any claims that may be presented.' (See, also, Ex parte Widber, 91 Cal. 367, [27 Pac. 733]; Ex parte Truman, 124 Cal. 387, [57 Pac. 223]; Murphy v. Madden, 130 Cal. 674, [63 Pac. 80]; County of Yolo v. Joyce, 156 Cal. 429, [105 Pac. 125].) We have been cited to no law authorizing the judge of the superior court to fix the amount of, allow and audit such a claim as the one involved herein, assuming that it constitutes the foundation for a valid charge against a county.

But there is still another view to be taken of the question submitted here for decision, viz.: Conceding that the services rendered by the claimant to the grand jury constitute a legal charge against the county, and that it was legally required that the auditor rather than the judge of the superior court should audit the claim to authorize its payment by the treasurer, the remedy of the claimant as against the refusal of the auditor to audit the claim or demand would be by mandate; for in such case the duty of the auditor to audit the claim would be one expressly enjoined upon him by law. (Code Civ. Proc., secs. 1085, 1086.) And in such case, the

auditor would be made and become a party to the action and accorded an opportunity to defend his position. If, then, the claim was determined to be a valid charge against the county and it had been regularly and duly allowed, and the auditor still refused to give it his official approval as prescribed by the law, he then might and probably would be subject to an adjudication of contempt of the court's mandate. In the present case, however, the auditor, who is not an officer of the court, was not a party to the proceeding in which the order allowing the claim was made, and the court certainly had no inherent power to make an order placing him in the perilous position of either auditing the demand or suffering imprisonment for contempt. (Ex parte Widber, 91 Cal. 367, 370, [27 Pac. 733]; Ex parte Truman, 124 Cal. 387, [57 Pac. 223].)

We conclude: 1. That if the claim in question constituted a legal charge against the county, it is not one of those the amount of which may be fixed and then allowed by the judge of the superior court, but is of that character of claims which must be presented and filed, and approved and allowed and audited as provided by sections 4075, 4076, and 4091 of the Political Code; 2. That, even if it be a claim which may be fixed and ordered paid by the judge of the superior court, the county auditor is not required to audit it to authorize its payment by the treasurer; 3. That, if it is a claim which cannot be paid without the official approval of the auditor, then mandate or some other appropriate proceeding, after the claim has been regularly passed upon and allowed, is the remedy to be resorted to against the auditor in case he refuses to audit the demand or claim.

It follows from the foregoing that the order adjudging petitioner guilty of contempt of court is absolutely void, and that the same must be annulled, set aside, and vacated. It is so ordered.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 2250. First Appellate District.-December 13, 1917.] EGIDIO RONCONI, Respondent, v. NORTHWESTERN PACIFIC RAILROAD COMPANY (a Corporation), Appellant.

NEGLIGENCE INJURY TO RAILROAD EMPLOYEE - DEFECTIVE HANDCAR DUTY OF EMPLOYER-INSTRUCTION.-In an action for injuries sustained by a railroad employee while engaged in the operation of a handcar, where it appears from the evidence that the foreman of the crew had his attention directed to the defective condition of the handle of the car, which broke under plaintiff's manipulation, and he said that it was all right and to go ahead, an instruction that the law does not permit an employer to take any chances as to the safety of its employees is not an incorrect statement of the law, or inconsistent with other full and correct instructions upon the duty of an employer toward an employee.

ID. VISUAL INSPECTION OF APPLIANCE-WHEN INSUFFICIENT.—An instruction that a merely visual or ocular inspection of external conditions does not satisfy the measure of the employer's obligation where the servant's safety depends upon the soundness of the material or the firmness of attachment of the several parts of the instrumentality is not misleading, when considered with respect to the particular appliance which the plaintiff was using.

ID.-HANDLE OF HANDCAR-DUTY TO INSPECT.-The handle of a handcar which is to be used in its propulsion by one standing in such a position that if it should suddenly give way its user would be precipitated in front of the moving car cannot be classed in the category of those simple tools, such as a hammer, a crowbar, a pick, or a shovel, for which a mere visual or external inspection might ordinarily be sufficient to satisfy the employer's duty to inspect.

ID. MASTER AND SERVANT-RES IPSA LOQUITUR.-The doctrine of res ipsa loquitur applies to cases of master and servant.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order deny. ing a new trial. Wm. D. Dehy, Judge Presiding.

The facts are stated in the opinion of the court.

Stanley Moore, for Appellant.

James A. Bacigalupi, and Edmund Nelson, for Respondent.

RICHARDS, J.-This is an appeal from a judgment in favor of the plaintiff and also from an order denying a new

trial in an action for damages arising out of injuries sustained by the plaintiff as one of the defendant's employees while engaged in the operation of a handcar upon its railroad line.

The handcar in question was one of regular standard make equipped with wooden handles which were used by the men in propelling the car. At the time of the accident which caused his injuries the plaintiff was standing on the front end of the car facing backward, and was engaging in "pumping" or pulling upon one of the handles used in operating the car, when said handle broke, and he fell backward in front of the car, which ran over him and seriously and permanently injured him.

The evidence is strongly conflicting as to the condition of the handle at the time of the accident. The appellant does not question its sufficiency, but rests his appeal upon certain alleged errors in the instructions of the court to the jury.

The first instruction assailed in the briefs of counsel for appellant is one which reads as follows: "You are further instructed that the law does not permit an employer to take any chances as to the safety of his employees." The appellant insists that this instruction constitutes an erroneous statement of the law, and also that it is contradictory to other instructions given by the court. The appellant, however, concedes that the court quite fully instructed the jury upon every phase of the case, and that with the exception of the particular instructions it criticises the court correctly laid down the law as to the degree of care which an employer should exercise in relation to his employees and to the appliances with which they were expected to work. The instruction above quoted appears to have been taken from the language of the decision of the supreme court in the case of Brown v. Sharp-Hauser Contracting Co., 159 Cal. 89, 94, [112 Pac. 874]. Its precise words were used in that case as applying to a state of facts where a foreman, representing the employer in relation to its employees, in the presence of a known danger concluded to "take a chance." The evidence in the case before us discloses a similar situation, for there is testimony to the effect that the foreman of the handcar crew had his attention directed to the defective condition of the handle which broke under the plaintiff's manipulation, and that he said "It is all right. Go ahead." From this testi

35 Cal. App.-36