such readily attainable appliances will be regarded as proof of culpable negligence." Mather v. Rillston, 156 U. S. 391, 15 Sup. Ct. 464, 39 L. Ed. 464. In Mining Co. v. Berberich, 36 C. C. A. 364, 94 Fed. 329, this court recognized and applied this rule. It is only by disregarding this rule that the judgment of the lower court can be overthrown in this case, for there was abundant testimony from which the jury might well find that the tamping rod furnished the plaintiff to work with was not the proper kind of tamping rod for the work given him to do, and was not a reasonably safe implement to work with. The testimony is too voluminous to quote at length, but a brief excerpt from a considerable mass of testimony to the same effect will show there is enough testimony on this point to support the verdict of the jury. Mr. Harry Allen Lee, an old and experienced miner, and the commissioner of mines for the state of Colorado, whose official duties required him to inspect the mines in the state, and the methods of operating them, including the machinery, implements, and tools used in their operation, testified in part as follows: "Q. What are the proper and recognized safe and reasonable bars or implements used for the purpose of tamping, Mr. Lee? A. Wooden tamping bars were commonly used. Q. Are those more safe and reasonable for that purpose, Mr. Lee? A. I think so; yes, sir. Q. Why? A. On account of their weight, and less liability to explosion from percussion. Q. Mr. Lee, I show you an iron pipe or bar, marked as an exhibit in this court,-Exhibit C. State whether or not the use of such a bar as that, from five to seven feet long, for the purpose of tamping giant powder, is a reasonably safe and proper tamping implement? A. I think not, sir. Q. Mr. Lee, in connection with your duties as mining inspector, is it a part of your duty to gather statistics concerning accidents of various kinds that happen in the mines? A. Yes, sir. Q. And to keep a record of those accidents, and to investigate the causes of them? A. Yes. Q. Have you had completed records of accidents resulting from the use of iron tamping bars? A. My records so show; yes, sir. Q. Do you base your opinion and statement to the court and jury that iron tamping bars are not reasonably safe and proper, to any degree, upon the results of your investigations showing the injuries and deaths resulting from the use of iron tamping bars? A. Yes, sir." And again the witness says, "In the large mines, iron tamping bars are not permitted." Mr. J. A. Gilmore, a witness who had been engaged in mining for 30 years, and who had during that time held the positions of foreman, shift boss, and superintendent of mines, testified as follows: "Q. In your observation, however, of mines, even where machines were not used, what would you state to the jury was the general custom as to the kind of tamping bars used? A. Well, for tamping giant powder we used to always use wood. I have always had it used where I was. Q. And, from your observation, what would you say was the general kind of tamping bar used in connection with giant powder? A. Wood. Q. Even in mines where machine drilling is not used? A. Yes, sir." Confirmatory of the testimony of this witness, it may appropriately be stated that since the accident to this plaintiff the legislature of the state has passed an act prohibiting the use of iron tamping rods in the mines of the state, under heavy penalties. The proposition being settled that the iron tamping bar was not a reasonably safe or proper tool, why should not the plaintiff recover? The court's answer to this question is that he assumed the risk. It was the duty of the defendants to furnish the plaintiff with a reason48 C.C.A.-33 ably safe and suitable tool to work with, and the plaintiff had a right to act upon the presumption that they had done so. The duty of furnishing the tool and determining whether it was a reasonably safe and proper tool rested upon the defendants, and not upon the plaintiff. Railway Co. v. Jarvi, 3 C. C. A. 433, 53 Fed. 65. The risk the plaintiff assumed was the risk which necessarily attended the work after being supplied with suitable tools. He did not assume any risk incident to the business growing out of the negligence of the defendants to supply him with a suitable and safe tool to work with. There is some confusion in the law of negligence on some points, but all the authorities agree that a servant does not assume the risks incident to the negligence of his master. The risk consequent upon the failure of the master to properly discharge his duty to furnish the servant with a reasonably safe place to work, or reasonably safe tool to work with, is not a risk which the servant assumes. But it is said the plaintiff ought to have known the tamping rod furnished him was unsafe. But he says emphatically that he did not know it, and, if there is anything at all settled in the jurisprudence of this country, it is that the jury, and not the judges of an appellate court, are the exclusive judges of the credibility of witnesses. But whether the plaintiff knew or ought to have known the dangerous character of the tamping rod was a question of fact for the jury, upon a consideration of all the evidence. In the case of Jones v. Railroad Co., 128 U. S. 443, 9 Sup. Ct. 118, 32 L. Ed. 478, the circuit court directed the jury to render a verdict for the defendant upon the ground that the plaintiff had been guilty of contributory negligence, but the supreme court reversed the judgment. The court, speaking by Mr. Justice Miller, said: "But we think these questions [of negligence] are for the jury to determine. We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as this, as well as others. Instead of the course here pursued, a due regard for the respective functions of the court and jury would seem to demand that these questions should have been submitted to the jury, accompanied by such instructions from the presiding judge as would have secured a sound verdict.” And the lower court rightly pursued the course here indicated, and instructed the jury so fully and fairly on the law of the case that no exceptions were taken to the charge. In the case of Railroad Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 683, 36 L. Ed. 485, 489, the court said: "It is only where the facts are such that all reasonable men must draw the same conclusions from them that the question of negligence is ever considered one of law for the court." And where the lower court took a case from the jury, saying, "There was very little discrepancy in the testimony," the supreme court reversed the judgment, and said: "The judge also tells us that there was very little discrepancy in the testimony; but where there is any discrepancy, however slight, the court must submit the matter to which it relates to the jury, because it is their province to weigh and balance the testimony, and not the court's." Barney v. Schmeider, 9 Wall. 248, 19 L. Ed. 648. The jury who tried the case, and who saw and heard the witnesses testify, by their verdict have said that the tamping rod furnished the plaintiff by the defendants to work with was not a reasonably safe tool for the purpose, that the plaintiff was not advised and did not know of its dangerous character, and that his injuries resulted from its unfitness for the work. The learned and experienced trial judge, who also saw and heard the witness testify, refused to direct a verdict for the defendants, approved the verdict the jury rendered, and refused a new trial. Upon this state of facts, the language of the supreme court of the United States in the recent case of Supreme Lodge v. Beck (Oct. term, 1900) 21 Sup. Ct. 532, 45 L. Ed., is extremely pertinent: "The principal question discussed by counsel for plaintiff in error, and the important question in the case, is whether the trial court erred in refusing a peremptory instruction to find a verdict for the defendant. It is said that the testimony established the fact of suicide, and that there was no sufficient doubt in respect thereto to justify a submission of the question to a jury. We have recently had before us a case coming, like this, from the trial court, through the court of appeals (Patton v. Railway Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361), in which the action of the trial court in directing a verdict was vigorously attacked as an invasion of the province of the jury to determine every question of fact. That case stands over against this, for there the trial court directed a verdict. Here it refused to direct it. In each case its action was approved by the court of appeals. 36 C. C. A. 467, 94 Fed. 751; 37 C. C. A. 56, 95 Fed. 244. In that case, although the question was doubtful, we sustained the rulings of the lower courts, and the considerations which then controlled us compel a like action in the present case. We said that a trial court had the right, under certain conditions, to direct a verdict one way or the other (citing several cases to that effect), but added: 'It is undoubtedly true that cases are not to be lightly taken from the jury, that jurors are the recognized triors of questions of fact, and that ordinary negligence is so far a question of fact as to be properly submitted to and determined by them. Railroad Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748, 37 L. Ed. 642. Hence it is that seldom an appellate court reverses the action of a trial court in declining to give a peremptory instruction for a verdict one way or the other. At the same time, the judge is primarily responsible for the just outcome of the trial. He is not a mere moderator of a town meeting, submitting questions to the jury for determination, nor simply ruling on the admissibility of testimony, but one who, in our jurisprudence, stands charged with full responsibility. He has the same opportunity that jurors have for seeing the witnesses, for noting all those matters in a trial not capable of record; and when, in his deliberate opinion, there is no excuse for a verdict, save in favor of one party, and he so rules by instructions to that effect, an appellate court will pay large respect to his judgment.'" It will be observed this rule works both ways, and when the trial court refuses to direct a verdict the "appellate court will pay large respect to his judgment." The doctrine of the court in this case is in flat contradiction of the opinion of the court in the case of Southern Pac. Co. v. Yeargin (at the present term) 109 Fed. 436.1 Moreover, the degree of proof required to establish contributory negligence must not be overlooked. The rule is "that the evidence against the plaintiff must be so clear as to leave no room to doubt, and all material facts must be conceded or established beyond controversy." Field, Dam. 519; Beach, Contrib. Neg. § 447; Railway Co. v. Sharp, 1 48 C. C. A. 497. 27 U. S. App. 334, 11 C. C. A. 337, 63 Fed. 532; Railroad Co. v. Gladmon, 15 Wall. 401, 21 L. Ed. 114; Railroad Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898; Hough v. Railroad Co., 100 U. S. 213, 25 L. Ed. 612; Railroad Co. v. Mares, 123 U. S. 710, 720, 721, 8 Sup. Ct. 321, 31 L. Ed. 296. For a collection of the cases and the reasoning in support of his dissent in this class of cases, the writer refers to his dissenting opinion in Railroad Co. v. Whittle, 20 C. C. A. 196, 74 Fed. 296, 301, and Finalyson v. Milling Co., 14 C. C. A. 492, 67 Fed. 507, 513. The judgment of the circuit court should be affirmed. (109 Fed. 481.) GOODMAN v. BRENNER. (Circuit Court of Appeals, Fifth Circuit. May 31, 1901.) No. 1,054. BANKRUPTCY-RIGHT OF APPEAL-INTERLOCUTORY ORDERS. An interlocutory order entered by a court of bankruptcy, reversing a ruling of the referee, made during the examination of the bankrupt, refusing to require him to produce his books, is not appealable.1 Appeal from the District Court of the United States for the Eastern District of Louisiana. W. L. Hughes, for appellant. Hewes T. Gurley, for appellee. Before PARDEE, MCCORMICK, and SHELBY, Circuit J Ages. PARDEE, Circuit Judge. The transcript shows that, during the examination of the bankrupt before the referee, the bankrupt declined to answer certain questions because thereby he would incriminate himself; and he further refused to produce his books for examination, on substantially the same ground. The referee ruled that the bankrupt was neither required to answer the questions nor to produce his books. On appeal to the court, the following decree was entered: "Upon due consideration thereof, it is ordered, adjudged, and decreed that the action of the referee in refusing to compel the bankrupt to produce his books be, and is hereby, reversed. It is further ordered that the action of the referee in refusing to compel the bankrupt to incriminate himself by answers to questions put to him by a creditor be, and is hereby, affirmed and sustained." Thereupon the bankrupt petitioned for appeal to this court, which was allowed. In this court some 12 errors are assigned, all on the theory that the decree in question orders the bankrupt to produce his books. The decree complained of is an interlocutory, not a final, decree rendered in the bankruptcy proceedings, and no appeal lies therefrom. Section 25, par. "a," of the bankruptcy act of 1898 1 Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9. provides for appeals to be taken in bankruptcy proceedings to the circuit court of appeals, as follows: "That appeals as in equity cases, may be taken in bankruptcy proceedings from the courts of bankruptcy to the circuit court of appeals of the United States, and to the supreme court of the territories, in the following cases, to-wit, (1) from a judgment, adjudging or refusing to adjudge the defendant a bankrupt; (2) from a judgment granting or denying a discharge; and (3) from a judgment allowing or rejecting a debt or claim of five hundred dollars or over. Such appeal shall be taken within ten days after judgment appealed from has been rendered, and may be heard and determined by the appellate court in term or vacation, as the case may be." From the plain reading of this statute, it appears that no right of appeal is given from an interlocutory order such as was rendered in this case, and there is no other law authorizing such appeal. The appeal is therefore dismissed. (109 Fed. 509.) EUREKA & K. R. R. CO. v. CALIFORNIA & N. RY. CO. No. 659. 1. INJUNCTION-GROUNDS-PROCEEDINGS TO CONDEMN Right of Way. Where a railroad company has instituted suit under Code Civ. Proc. Cal. §§ 1240-1247, against the owners of property, to condemn right of way, a court of equity will not, on its application, enjoin the prosecution of suits begun by a second company for condemnation of the same land, since the statute permits all parties in interest to appear in such suits, and authorizes the court to determine the respective rights of different parties seeking condemnation of the same property. 2. EQUITY JURISDICTION-PREVENTING MULTIPLICITY OF SUITS. Equity will take jurisdiction on the ground of preventing a multiplicity of suits only where it appears from the allegations of the bill that the rights of all the parties involved in the subject-matter of the controversy can be as fully and completely determined in such single suit as they could be in the several suits. Appeal from the Circuit Court of the United States for the Northern District of California. The Eureka & Klamath River Railroad Company, the appellant above named, filed in the superior court of the county of Humboldt, state of California, its bill in equity against the California & Northern Railway Company, the appellee, alleging, in substance, that the appellant is a corporation incorporated under the laws of the state of California for the purpose of constructing and operating a line of railroad in Humboldt county, in that state, from Eureka by ferry to Samoa, and from Samoa by rail by way of Arcata to a point opposite the mouth of Hunter creek, on the Klamath river, with one branch from Arcata, around the east shore of Humboldt Bay, to Eureka; that, under its articles, the appellant immediately began the construction of its railroad, and has put in operation its road from Eureka by ferry to Samoa, thence by rail to Arcata, etc.; that in February, 1899, it located and commenced the construction of its branch line from Arcata around and upon the east shore of Humboldt Bay to Eureka, a distance of about eight miles. and has now engaged in such construction a large number of laborers, and has expended therein about $100,000; that, at the expense of $60,000, the appellant has purchased and acquired a parcel of land in the city of Eureka for railroad purposes, passenger and freight depot grounds, freight yards, |