a witness had testified falsely and had done so knowingly and willfully as to any material matter, his testimony may be disregarded, was not prejudicial error, where the court also gave elaborate instructions on the credibility of witnesses. ID.-ENACTMENT OF WORKMEN'S COMPENSATION ACT-LAW GOVERNING PRIOR INJURIES.-The Workmen's Compensation Act of 1913, in view of the saving clause therein declaring that the compensation provisions of the act should not apply to any injury sustained prior to the taking effect thereof, continued in force existing laws as to injuries sustained prior to such time.

ID. RIGHT TO COMPENSATION UNDER EMPLOYERS' LIABILITY ACT-REPEAL OF ACT-Right not DeSTROYED.—The right of an employee to compensation under the Employers' Liability Act of 1911 is a vested right, which was not taken away by the repeal of such act.

APPEAL from a judgment of the Superior Court of Tehama County, and from an order denying a new trial. John F. Ellison, Judge.

The facts are stated in the opinion of the court.

H. P. Andrews, W. A. Fish, A. H. Jarman, Gavin McNab. Edward C. Harrison, and Maurice E. Harrison, for Appellant.

Frank Freeman, and James T. Matlock, for Respondent.

BURNETT, J.-Plaintiff had the verdict in an action for damages resulting from personal injuries. The accident was caused by her dress being caught by a revolving iron shaft while she was engaged at work on a hop-picking machine, and she was seriously hurt. We attach hereto a diagram to illustrate the situation and to make clearer the testimony to which we shall refer. "A" represents the platform on which plaintiff stood, "B" the shaft on which her dress was caught, "C" the south post close to or against which she stood when her clothing came into contact with the shaft, "D" the grate with its iron bars on which the hops fell from above, "E" the post at the north end of the platform and distant from “C” nearly eight feet, "F" the brace to post "C." The platform was twenty inches, and the shaft twenty-nine and three-fourths inches from the floor. The south post, "C," was five and one-half inches thick, the shaft was four inches

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distant from it, and it was seven inches to said post from the bottom of the most southern iron rod in said grate.

! That plaintiff's version of the accident may be understood, we quote from her testimony as follows: "I was standing upon that platform that comes along there in front of that grate and my job was to pick the sticks and leaves off this grate, and throw them behind me on the floor, and the hops was to be left on the grate, and that was my orders, and this stick was furnished to us to poke the hops down when they come on the machinery, and if the hops caught above the machine we were to take the stick and shake it along until the hops went through and we was to walk up and down on this thing and pick these hops out. We were not pickers, but we was to walk backward and forward and see the hops went through and if any stems or sticks, to throw them off on the floor, and when we got that done, to go back on the other end and clean it out the same way, and so I was walking from this end to this end, and up in the corner sometimes they would fall in bunches as big as that [illustrating], and there was a big bunch sticking there that didn't fall down, and so I took this stick here and was reaching up like that to pull the hops down, and when I come back from pulling the hops down, when the bunch fell in front of me on the grate, I felt something pull on the left-hand side of my dress, and

of course you would always think something, and I thought somebody went along there and touched me, and I never thought of the machinery I was tangled up in, and when I felt that, I turned to see who was behind me, and just at that I noticed my dress was on the shaft, and I didn't think then or realize my dress was tangled in the shaft, and just as I felt it pull, I looked around and felt myself going, and put my hands up, thinking I would grab something to save myself falling, and I was pitched up in the air and came down on the floor as hard as I could come."

She testified that she had seen this shaft and others, but had no idea that she could ever get connected with it in any way; that she never thought about it, it had never entered her head that there was any danger there; that she thought the foreman who put a lady to work there would not put her where she could get connected with any machinery; that anybody could see the shaft. There was nothing to prevent her from seeing it when she was on the floor, but when she was working on the platform, she could not see it unless she leaned over, but she could not do that; being a short woman, she had to come to the end of the platform to reach up and pull the hops down, and sometimes had to "reach quite a bit to take them down," and in answer to the question by appellant's counsel: "Will you explain to me why it was necessary for you to go so close to that revolving shaft at the extreme south end of that bin that your clothing could in any way become caught in that revolving shaft?" she replied: "When I was just as far as I could get to the end of these grates here, and had that stick, I couldn't possibly reach this place up here; I had tried it, and even had to get on my tiptoes several times to hammer at a bunch of stuff up there to compel it to come down. I didn't know the distance from there up there because I never measured it, but when I was standing as near as I could get to this end, I have often stuck my shoulder under that thing that is how high it was to me-I have often stuck my shoulder under that thing there and reached this way [indicating] to get those things down, and when I would do that, sometimes I would have to reach four of five times, and hammer at it to get it started down. That is the reason why I had to go up so close to that end."

She also testified that she was not warned of any danger, and that she had to work rapidly at her task to keep the grate

clear. We do not think it can be said that respondent "voluntarily placed herself in the way of an obvious and well-understood peril," and must, therefore, suffer the consequences of her conduct. The case seems quite different from those like Brett v. Frank Co., 153 Cal. 267, [94 Pac. 1051], Ergo v. Merced F. G. & E. Co., 161 Cal. 334, [41 L. R. A. (N. S.) 79, 119 Pac. 101], Bressette v. Stone, 162 Cal. 74, [121 Pac. 312], and Andrews v. Valley Ice Co., 167 Cal. 11, [138 Pac. 699]. The situation here is more like that presented in Davis v. Pacific Power Co., 107 Cal. 563, [48 Am. St. Rep. 156, 40 Pac. 950], and kindred cases. It may indeed be said that the danger here was not so obvious as in the Davis case. The shaft that caught plaintiff's clothing was not quite an inch and a half in diameter, and it projected about six inches beyond the easterly side of the post "C." It was revolving rather slowly, and it did not present a necessarily dangerous aspect. Indeed, it is quite likely that if it had been a man whose clothing was brought into contact with the shaft, no injury would have been produced. And it is safe to say that plaintiff might have been placed in a similar position many times without suffering any inconvenience. It is to be remembered that what is called the shaft, as far as the exposed portion is concerned, was a mere rod exhibiting but small centripetal force, and not presenting any complication by reason of cogs or a belt or other mechanical contrivance. The chances were rather against the happening of such an accident, and there would probably be more reason for the contention that appellant was not guilty of negligence in leaving the shaft exposed than for the position upon which so much emphasis is laid that the situation presented "an obvious and well-understood peril." However, as to this, we are satisfied that there was ground for the holding that appellant was derelict in not more carefully guarding against such contingency as was developed. In this connection we may state that the probability of an accident was somewhat increased by the irregularities on the surface of said shaft, it having been "chewed up with a Stilson wrench," as stated by one of the witnesses.

But if we concede that to one familiar with machinery and the laws appertaining to mechanics, the situation might appear obviously dangerous, it does not follow that plaintiff understood, comprehended, and appreciated the peril. It is

a reasonable conclusion from her evidence that her lack of understanding of whatever peril existed was such as to relieve her of the charge of contributory negligence in continuing her employment in such close proximity to the shaft. For at the time plaintiff was injured, in order to charge her with culpable conduct according to the requirement of the existing law, it was necessary for her not only to know the unsafe condition of the machine, but that she consented to work in the place of danger after full comprehension of the risk which she thereby incurred. (Jacobson v. Oakland M. & P. Co., 161 Cal. 425, [Ann. Cas. 1913B, 1194, 119 Pac. 653].)

Again, it is quite apparent that the position which she occupied while employed has an important bearing upon the question of the imminence of the peril. It was manifestly less dangerous than if she had been working nearer or over the shaft. Considering her position on the platform and the innocent appearance of the shaft, the danger should be denominated a hidden rather than an obvious one. But, after all, this contention of appellant resolves itself into the legal proposition that she assumed the risk of a known hazard, but this fact, as pointed out in Crabbe v. Mammoth Channel Gold Min. Co., 168 Cal. 500, [143 Pac. 714], and other cases, affords no defense under the Employers' Liability Act [Stats. 1911, p. 796], in effect at the time of the accident.

Upon the theory that there was an obvious peril, the other important consideration is not whether she assumed the risk, but whether she was chargeable with negligence that contributed to her injury, and this depends upon what she was doing at the time. To determine this question, we must consider the character of the danger, and other circumstances as we shall presently see.

We can see no merit in the point that she "voluntarily chose an unusual and more dangerous method to perform her duties when there were two or more safe ways known by and open to her." The declaration of appellant simply amounts to a specification of the manner in which she failed to exercise due care, and displayed a reckless disregard for her own safety. There are many cases illustrating such an exhibition of negligence, and no one would deny that she should not recover if her conduct was thus properly characterized by appellant. But we cannot say that the method em