Meyers v. Mining Co. which showed that the work in question was attended with some danger. James Nelson, one of the defendant's witnesses, who was also foreman in defendant's sampling mill, where plaintiff was at work when injured, testified in part as follows: "Of course, a fellow wouldn't do to have his eyes shut around there. It was more dangerous than it was walking around on the bare floor, walking over those beams." Crellin was the foreman and representative of defendant company, and as such had the control and management of the work in which plaintiff was engaged, and as such foreman it was not only his duty, or rather that of defendant company acting through him, to provide plaintiff a reasonably safe place in which to perform the work required of him, but to use ordinary care in keeping it in a reasonably safe condition. The situation there being one of danger, as shown by defendant's evidence, and Crellin having testified on direct examination respecting the number, location, and efficiency of the lamps, and that he had taken the extension or adjustable light from the bin in which he and the plaintiff had been at work that same afternoon, and hung it over bin No. 4, it was not only plaintiff's right to cross-examine him respecting the things he actually did, but it was within the discretionary power of the court to permit plaintiff to interrogate him respecting his object and reason for doing certain things, especially in view of the fact that he was a "willing witness" for defendant and adverse to plaintiff. Jones on Evidence, sec. 826. There is another reason why this testimony was admissible. The acts of Crellin in the premises, on principle and in law, were the acts of defendant company, and the plaintiff was entitled to this evidence for the purpose of showing that the place was one of danger, and that the defendant company, through its foreman, Crellin knew of such danger, and understood and appreciated the necessity of more than one lamp in the immediate vicinity of bin No. 4, in order that the work might be 28 Utah-8 Meyers v. Mining Co. performed without exposing plaintiff to extraordinary and unnecessary hazards and dangers. In other words, the knowledge of Crellin in reference to these matters was knowledge to his principal. And again, as I have already stated and pointed out, the theory upon which the case was tried, both by plaintiff and defendant, was that the stationary lamp hereinbefore mentioned did not light up the interior of bin No. 4 after dark, and that additional light to that furnished by this stationary lamp was necessary at that point; the defendant claiming that on the evening in question the adjustable lamp was hanging over bin No. 4 and furnished an abundance of light whereas the claim and theory of plaintiff was that the only light at said bin was that produced by the two stationary lamps mentioned in Wright's testimony. Hence, under this theory of the case, the testimony was unimportant, except only so far as it tended to bring home to defendant knowledge of the conditions as they existed at that time, and the necessity of additional light to that furnished by the stationary lamps. The next error alleged is the exclusion of Avery's testimony with reference to the plank which other witnesses for defendant had testified to having seen lying across bin No. 4 just prior to the accident. It appears from the record that the plank in question was not a part of the bin; that is, it was not a fixture of or permanently attached to the bin. Crellin, defendant's principal witness testified on his direct examination with reference to its character as follows: "Q. Now, do you know whether or not, in addition to this plank and ladder, there were any other loose material about the floor? A. You mean plank? Q. I mean plank. A. Yes, sir; there were several pieces of plank lying around there." In fact the record shows that there was but little more permanency respecting the location of the plank than there was to the pick, shovels, and other tools with which the work there was performed. Under these circumstances, in order to entitle appellant to Avery's testimony that he saw a plank lying Meyers v. Mining Co. across bin No. 4 two or three hours after the accident occurred, it was incumbent upon it to show that the conditions at the bin were the same when Avery went to work as they were when plaintiff was hurt. True, Crellin made the sweeping statement that in the meantime no changes had taken place; but the record shows that he left the premises immediately after the accident, and accompanied the plaintiff to his home, a distance of about two miles from the mill, stayed with him from one-half to three-quarters of an hour, and returned to the smelter about ten minutes before the 11 o'clock shift went to work. Therefore, according to his own testimony, he was not in a position to know what took place at the bin between the time he left with Meyers at 8 or 9 o'clock and his return at 11 o'clock p. m. And the record shows that in the meantime ore was run into bin No. 4, and that conditions to some extent had changed. Under these circumstances and conditions I do not think it was an abuse of discretion for the court to exclude Avery's testimony. If the plank had been a fixture and attached to the bin, an entirely different rule would govern, but the record shows that it and other loose plank were used, among other things four-foot boards, and were frequently moved from one bin to another. I am of the opinion that the judgment of the trial court should be affirmed. Earl v. Lewis. H. H. EARL, F. H. MEREWEATHER, A. GREENHALGH, LEWIS JACOBSON and LOUIS ALLANT, Contestants and Respondents, v. B. E. LEWIS, President, and LEIL M. MADSEN, ALFRED NEUREN and FRANK BROYLES, Contestees and Appellants. No. 1535. (77 Pac. 235.) 1. Elections: Contests: Certificate of Nomination: Failure to File: Effect: Duty of Clerk. Under Rev. St. 1898, sections 824, 828, requiring certificates of nomination to be filed with the town clerk not less than 15 days before the election, and declaring all certificates valid unless written objections are made, and section 836, requiring the clerk to print on the ballot the name of every candidate whose nomination has been certified, when a certificate of nomination is in legal form, the clerk, in the absence of objection, must place the candidate's name on the official ballot, though the certificate was not filed in the required time. 3. Same. Where a person in charge of the certificates of nomination of candidates by a political party was prevented from filing them with the town clerk because of his absence and his office being closed, they may be regarded as filed on the day they were presented. 2. Same: Ballot: Validity: Irregularities. Under Rev. St. 1898, sections 846-849, requiring the judges to furnish the voter the official ballot, which after being properly marked by the voter shall be deposited in the ballot box and counted for the candidate designated, the voter can only use the ballot furnished, and its validity cannot be denied because of irregularity in its preparation. 4. Same: Registration: Failure of Register to Act: Right to Vote. Under Rev. St. 1898, sections 800, 821, prescribing the method of registration, and providing that no person shall be permitted to vote without having registered, the failure of the Earl v. Lewis. register to act does not deprive the legal voter, who has properly applied for registration, of the constitutional right to vote. 5. Same. Where a register fails to act on a voter's application for registration, the voter is not required to resort to mandamus to compel him to act, nor to an action against him for damages. 6. Same. Under Act. Cong. May 31, 1870, c. 114, section 3, 16 Stat. 140, providing that a person offering to perform any act entitling him to vote, and otherwise qualified, shall be entitled to vote as if he had performed the act, where the requirements were not performed by persons who applied for registration they were not entitled to vote at the election. (Decided June 25, 1904.) Appeal from the Seventh District Court, Carbon County. -Hon. Jacob Johnson, Judge. An election contest instituted in pursuance of chapter 9, title 18, Revised Statutes 1898. From a judgment in favor of the contestants, the contestees appealed. AFFIRMED. Messrs. Weber & Braffet and W. H. Frye, Esq., for appellants. Hon. M. A. Breeden, Attorney-General, and Hon. W. R. White, Deputy Attorney-General, for the respondents. BASKIN, C. J.-This is an election contest, instituted in pursuance of chapter 9, tit. 18, Revised Statutes 1898. It appears from the evidence, and also from the findings of fact, that on the nineteenth day of October, 1903, |