CUNNINGHAM, J.
(After Stating the Facts as Above).— The appellee moves the dismissal of this appeal upon the grounds that the appellant failed to take an appeal before filing an appeal bond.
The judgment in this case was ordered entered on the twenty-ninth day of March, 1915. The motion for a new trial was denied April 12, 1915. The appeal bond including a provision for superseding the execution of the judgment was filed on August 30, 1915. On September 27, 1915, the appellant gave its notice of appeal from the said order refusing a new trial and from said judgment. The appellee contends that because the bond was filed before the notice of appeal was given, that at the time the bond was filed no appeal had been taken, and that the bond was therefore prematurely filed, and such filing of the bond does not serve any purpose of appeal.
An appeal may be taken from a final judgment of the superior court in a civil action at any time within six months after the rendition of the judgment. Paragraph 1233, Civil Code of Arizona 1913. The appeal is taken by giving a notice of appeal, either in open court or in writing substantially in the form prescribed by paragraph 1235 of the Civil Code of 1913, and the appeal is perfected when the notice of appeal has been given and the appeal bond, or affidavit in lieu thereof, has been filed within the time in which the appeal may be taken, that is, within six months after the rendition of the final judgment. Paragraph 1236, Civil Code 1913. The appeal is perfected on the date when both the notice of appeal has been given and the appeal bond, or affidavit in lieu thereof, has been filed, or the date upon which the notice of appeal is given in eases in which no appeal bond is required. Paragraph 1237, Civil Code 1913.
The performance of both of these acts within six months after the rendition of the judgment serves to effect a removal of the cause from the superior courts to the Supreme Court. [155]*155The matter of the removal of the cause from the lower to the higher court for review is the important purpose of the appeal. The order in which these necessary acts are to be performed so that the cause is effectually removed from the lower court to the higher, and by which the lower court is divested of jurisdiction over the cause, and the appellate court acquires jurisdiction over the cause, is not made important by the statute. The statute leaves the matter of the order of performing each of these necessary acts of removal to the pleasure of the party desiring to appeal, and only limits the time within which he must perform both acts necessary to the accomplishment of the appeal to the period of six months from the date of the rendition of the judgment. Wores v. Preston, 4 Ariz. 92, 77 Pac. 617, I think correctly decided the identical question here presented 24 years ago, and that decision has remained the law to this day.
The appellee contends that the giving of the notice is the essential act of taking an appeal, and that the filing of a bond at a time prior to the time of giving of the notice of appeal is not equivalent in law to the filing of such bond after the appeal is taken, and that the appeal must be first taken, and thereafter the bond must be filed in order to effect an appeal. It is quite clear from the statutes that the giving of the notice of appeal is an act essential to taking an appeal. It is also quite clear from the statutes that the furnishing of an appeal bond, or affidavit in lieu of such bond, as the case may be, is essential to perfecting an appeal. The purpose of the statute requiring an appeal bond to be given is to protect the rights of the appellee pending the appeal. The parties may by written stipulation waive the giving of an appeal bond, and such waiver of the bond does not affect the appeal. Paragraph 1255, Civil Code 1913.
The appellee had the right to object to the appeal bond on the grounds of its insufficiency for the reasons of any error, defect, or insufficiency at any time within ten days after the filing of such bond, by giving notice of the errors, defects, and insufficiencies in such bond of which he complains, and, failing to give such notice, all errors and defects or insufficiencies in any appeal bond are deemed waived. Paragraph 1253, Civil Code 1913. Hence the time of filing the appeal bond is important as fixing the time within which the appellee may object to errors, defects, and insufficiencies therein.
[156]*156Until the notice of appeal is given, the appellee’s rights in the judgment are unaffected, even though an appeal bond has been deposited by the appellant with the files in the cause. If appellee has knowledge that such bond has been deposited with the papers of the cause, he is not required to object to the sufficiency of such bond until he is notified as required by law that the adverse party has taken an appeal. When the notice of appeal is given and the appeal bond is present in the cause, the adverse party then may object to the sufficiency of the appeal bond within the time provided; else he waives defects, and the appeal is perfected, and the jurisdiction over the cause is transferred. The presence of the appeal bond in the files of the court at the time the notice of the appeal is given is a sufficient filing of the appeal bond to require the adverse party, the appellee, to examine it for errors, defects, and insufficiencies, and if any are found, to then raise objections thereto. If no objections on the grounds of defects, errors, or insufficiencies are raised by the appellee within ten days thereafter the bond is deemed effective as an appeal bond to accomplish a removal of the cause from the lower to the higher court. The obligors on the bond may not be heard to question their liability, and the appellee is furnished the protection pending appeal which the statutes are intended to give to him.
The appellee contends that in this case the bond filed is in form a supersedeas bond, and if an adverse party be permitted to file such a bond, and thereby suspend the execution of a judgment before the appellee has notice of the taking of an appeal, the appellee suffers a wrong. This is assuming that a supersedeas bond filed before an appeal is taken has the effect of suspending a judgment from the time of the filing of the bond. Such is not the effect of the depositing of such bond in the cause. The execution of the judgment may not be suspended by giving a supersedeas bond until an appeal is taken from the judgment. Paragraph 1243, Civil Code 1913. In this case, however, on April 5, 1915, the court ordered a stay of execution for 60 days, and on the first day of June, 1915, the court ordered the execution further stayed until the first day of September, 1915. The execution of the judgment in this cause was not suspended by the filing of the-supersedeas bond on August 30, 1915, from that date until September 27, 1915, when the notice of appeal was given, but [157]*157the execution was stayed by the order of the court as a fact until September 1, 1915. Whether the judgment was open to execution from September 1 to September 27, 1915, is a matter not presented nor urged on this record. Certainly the fact that a bond in form was deposited with the papers in the cause purported to suspend the execution of the judgment did not have that effect until the appeal was taken.
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CUNNINGHAM, J.
(After Stating the Facts as Above).— The appellee moves the dismissal of this appeal upon the grounds that the appellant failed to take an appeal before filing an appeal bond.
The judgment in this case was ordered entered on the twenty-ninth day of March, 1915. The motion for a new trial was denied April 12, 1915. The appeal bond including a provision for superseding the execution of the judgment was filed on August 30, 1915. On September 27, 1915, the appellant gave its notice of appeal from the said order refusing a new trial and from said judgment. The appellee contends that because the bond was filed before the notice of appeal was given, that at the time the bond was filed no appeal had been taken, and that the bond was therefore prematurely filed, and such filing of the bond does not serve any purpose of appeal.
An appeal may be taken from a final judgment of the superior court in a civil action at any time within six months after the rendition of the judgment. Paragraph 1233, Civil Code of Arizona 1913. The appeal is taken by giving a notice of appeal, either in open court or in writing substantially in the form prescribed by paragraph 1235 of the Civil Code of 1913, and the appeal is perfected when the notice of appeal has been given and the appeal bond, or affidavit in lieu thereof, has been filed within the time in which the appeal may be taken, that is, within six months after the rendition of the final judgment. Paragraph 1236, Civil Code 1913. The appeal is perfected on the date when both the notice of appeal has been given and the appeal bond, or affidavit in lieu thereof, has been filed, or the date upon which the notice of appeal is given in eases in which no appeal bond is required. Paragraph 1237, Civil Code 1913.
The performance of both of these acts within six months after the rendition of the judgment serves to effect a removal of the cause from the superior courts to the Supreme Court. [155]*155The matter of the removal of the cause from the lower to the higher court for review is the important purpose of the appeal. The order in which these necessary acts are to be performed so that the cause is effectually removed from the lower court to the higher, and by which the lower court is divested of jurisdiction over the cause, and the appellate court acquires jurisdiction over the cause, is not made important by the statute. The statute leaves the matter of the order of performing each of these necessary acts of removal to the pleasure of the party desiring to appeal, and only limits the time within which he must perform both acts necessary to the accomplishment of the appeal to the period of six months from the date of the rendition of the judgment. Wores v. Preston, 4 Ariz. 92, 77 Pac. 617, I think correctly decided the identical question here presented 24 years ago, and that decision has remained the law to this day.
The appellee contends that the giving of the notice is the essential act of taking an appeal, and that the filing of a bond at a time prior to the time of giving of the notice of appeal is not equivalent in law to the filing of such bond after the appeal is taken, and that the appeal must be first taken, and thereafter the bond must be filed in order to effect an appeal. It is quite clear from the statutes that the giving of the notice of appeal is an act essential to taking an appeal. It is also quite clear from the statutes that the furnishing of an appeal bond, or affidavit in lieu of such bond, as the case may be, is essential to perfecting an appeal. The purpose of the statute requiring an appeal bond to be given is to protect the rights of the appellee pending the appeal. The parties may by written stipulation waive the giving of an appeal bond, and such waiver of the bond does not affect the appeal. Paragraph 1255, Civil Code 1913.
The appellee had the right to object to the appeal bond on the grounds of its insufficiency for the reasons of any error, defect, or insufficiency at any time within ten days after the filing of such bond, by giving notice of the errors, defects, and insufficiencies in such bond of which he complains, and, failing to give such notice, all errors and defects or insufficiencies in any appeal bond are deemed waived. Paragraph 1253, Civil Code 1913. Hence the time of filing the appeal bond is important as fixing the time within which the appellee may object to errors, defects, and insufficiencies therein.
[156]*156Until the notice of appeal is given, the appellee’s rights in the judgment are unaffected, even though an appeal bond has been deposited by the appellant with the files in the cause. If appellee has knowledge that such bond has been deposited with the papers of the cause, he is not required to object to the sufficiency of such bond until he is notified as required by law that the adverse party has taken an appeal. When the notice of appeal is given and the appeal bond is present in the cause, the adverse party then may object to the sufficiency of the appeal bond within the time provided; else he waives defects, and the appeal is perfected, and the jurisdiction over the cause is transferred. The presence of the appeal bond in the files of the court at the time the notice of the appeal is given is a sufficient filing of the appeal bond to require the adverse party, the appellee, to examine it for errors, defects, and insufficiencies, and if any are found, to then raise objections thereto. If no objections on the grounds of defects, errors, or insufficiencies are raised by the appellee within ten days thereafter the bond is deemed effective as an appeal bond to accomplish a removal of the cause from the lower to the higher court. The obligors on the bond may not be heard to question their liability, and the appellee is furnished the protection pending appeal which the statutes are intended to give to him.
The appellee contends that in this case the bond filed is in form a supersedeas bond, and if an adverse party be permitted to file such a bond, and thereby suspend the execution of a judgment before the appellee has notice of the taking of an appeal, the appellee suffers a wrong. This is assuming that a supersedeas bond filed before an appeal is taken has the effect of suspending a judgment from the time of the filing of the bond. Such is not the effect of the depositing of such bond in the cause. The execution of the judgment may not be suspended by giving a supersedeas bond until an appeal is taken from the judgment. Paragraph 1243, Civil Code 1913. In this case, however, on April 5, 1915, the court ordered a stay of execution for 60 days, and on the first day of June, 1915, the court ordered the execution further stayed until the first day of September, 1915. The execution of the judgment in this cause was not suspended by the filing of the-supersedeas bond on August 30, 1915, from that date until September 27, 1915, when the notice of appeal was given, but [157]*157the execution was stayed by the order of the court as a fact until September 1, 1915. Whether the judgment was open to execution from September 1 to September 27, 1915, is a matter not presented nor urged on this record. Certainly the fact that a bond in form was deposited with the papers in the cause purported to suspend the execution of the judgment did not have that effect until the appeal was taken. The mere fact that the appeal bond was deposited with the papers in the cause at a time after the motion for a new trial has been denied, and prior to the time of giving notice of appeal, is no grounds for dismissing the appeal; the bond and notice having been placed in the lower court within the time required for taking an appeal certainly perfected the appeal. The motion is therefore denied.
The principal question presented in this record and contested on this appeal is whether the employers’ liability law (chapter 6, title 14, Civil Code of Arizona of 1913) is constitutionally valid. The appellant first challenged the validity of the statute by a general demurrer, which was overruled. It objected to the introduction of any testimony upon the -same grounds. At the close of the evidence it requested a directed verdict in its favor, and in its motion for a new trial the same grounds were urged. The appellant states in its opening argument that:
“The first three assignments of error involve the single overshadowing question of the invalidity of the liability law, and will be considered together.”
The appellant contends, and I think his contention is correct, that the liability statute must be construed as one creating a liability for accidents resulting in injuries to the workmen engaged in hazardous occupations due to the risks and hazards inherent in such occupations, without regard to the negligence of the employer, as such negligence is understood in the common law of liability; in other words, such statute creates a liability for accident arising from the risks and hazards inherent in the occupation without regard to the negligence or fault of the employer. The cause was tried upon that theory, and the judgment must stand or fall according to the validity or invalidity of the said statute. The appellant makes the broad statement that “a statute .creating such a liability cannot stand.” At the threshold of the discussion we encounter the inquiry of the power of the legis[158]*158lature to enact liability laws which, in effect modify the common law of liability based upon negligence or fault; liability because of a failure on the part of the employer to perform a duty owing to the employee.
Chapter 6 of title 14 was enacted as a response to the mandate contained in section 7 of article 18 of the state Constitution, reading as follows:
“To protect the safety of employees in all hazardous occupations, in mining, smelting, manufacturing, railroad or street railway transportation, or any other industry the legislature shall enact an employers’ liability law, by the terms of which any employer, whether individual, association, or corporation shall be liable for the death or injury, caused by any accident due to a condition or conditions of such occupation, of any employee in the service of such employer in such hazardous occupation, in all cases in which such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured.”
This provision is clearly one mandatory upon the legislative branch of the state government as to all the requirements set forth in that provision for affirmative action by the legislature. The framers of the Constitution, and the people adopting the Constitution, by this section clearly set forth and made known to the legislative department, the legislative branch of the state government, that the public policy of this state and of the people of the state is that employers of labor in hazardous occupations of all kinds of such industries shall be liable in damages to such employee as shall be injured when the injury is caused by any accident due to a condition or conditions of such occupations without regard' to negligence of the employer as the cause. The only limitation or restriction thrown about the legislature’s duty in this respect is that in the enactment of employers’ liability laws or other laws of such nature, no employer shall be made liable for the death or injury of any employee, when such death or injury shall have been caused by the negligence of the employee killed or injured.
The form of our state government furnishes no means by which the legislature may be coerced into obeying such mandate so made its duty. The courts have no such power. This is certainly true. Adams v. Howe, 14 Mass. 340, 7 Am. Dec. 216, 220; Holbrook v. Holbrook, 1 Pick. (Mass.) 248; In re [159]*159Opinions of Justices, 68 Me. 582; School Board v. Patten, 62 Mo. 444; Ex parte Alabama, 52 Ala. 231, 23 Am. Rep. 567, 573; Sawyer v. Gilmore, 109 Me. 169, 83 Atl. 673; In re State Census, 6 S. D. 540, 62 N. W. 129. From these authorities and others that may be cited, and from the very nature of the matter, the legislative power of the state is not controlled, nor controllable by simple mandatory directions given by means of constitutional provisions which direct action, but do not restrict action on the part of the legislature. When the legislature is not constitutionally restricted, it may act or not as the occasion may seem proper, and in acting may pass any law the legislature deems for the welfare of the state, unless prohibited by some positive constitutional provision, and all such laws not so prohibited are valid.
The provisions of the Constitution are all deemed mandatory, but that does not mean that the judicial branch of the state government has been confided with the power to enforce all mandatory provisions contained in the Constitution directed to the legislative and executive branches of the state government' of co-ordinate powers with the judicial branch. These matters are elementary and evident. So the constitutional mandate, supra, in no manner controls the legislature in the adoption by it of any provision of the employers’ liability law, unless it attempts to place liability upon an employer for the death or injury of an employee killed or injured by such employee’s own negligence. Appellant contends that the statute in question is in conflict with section 1 of the Fourteenth Amendment to the United States Constitution, prohibiting laws which deprive any person of property without due process of law, and that deny persons the equal protection of the laws, for the reason chapter 6, title 14, declares that an employer is liable for personal injuries suffered by an employee in the absence of any fault on the employer’s part in causing such injury.
In paragraph 3147 of chapter 4 of title 14 of the Civil Code of Arizona of 1913, it is declared in no uncertain language that:
“Employment in all underground mines, underground workings, open cut workings, open pit workings, in or about, and in connection with, the operation of smelters, reduction works, stamp-mills, concentrating-mills, chlorination processes, cyanide processes, cement works, rolling-mills, rod-mills and [160]*160at coke ovens and blast furnaces, is hereby declared to be injurious to health and dangerous to life and limb.”
Hence laws enacted which reasonably regulate such employments are regulations within the police powers of the state. Again, paragraph 3156 of chapter 6, title 14, of the Civil Code of Arizona of 1913, places certain enumerated occupations within the police powers of regulation by the state, thus:
“3156. The occupations hereby declared and determined to be hazardous within the meaning of this chapter are as follows: . . .
“(2) All work when making, using or necessitating dangerous proximity to gunpowder, blasting powder, dynamite, compressed air, or any other explosive. . . .
“(8) All work in or about quarries, open pits, open cuts, mines, ore reduction works and smelters.’?
Paragraph 3155, Id., contains the following declaration of public policy, to wit:
“By reason of the nature and conditions of, and the means used and provided for doing the work in, said occupations, such service is especially dangerous and hazardous to the workmen therein, because of risks and hazards which are inherent in such occupations and which are unavoidable by the workmen therein.”
Paragraph 3157, Id., provides that:
“Every employer, whether individual, firm, association, company or corporation, employing workmen in such occupation, of itself or through an agent, shall by rules, regulations or instructions, inform all employees in such occupations as to the duties and restrictions of their employment, to the end of protecting the safety of employees in such employment.”
Thereby the statute declares the occupations enumerated as inherently hazardous and dangerous to workmen engaged therein, and declares that which is evident to every observant person that the risks and hazards incident to such occupations are unavoidable by the workmen engaged therein. Such occupations designated as hazardous and dangerous, and inherently unsafe, are deemed for that reason injurious to the health and dangerous to life and limb of the workmen engaged therein, and clearly fall within the police powers of the state for regulation and control. To the end that the workmen in said occupations may be protected in health, life, and limb [161]*161the law easts upon the employer the specific duty to promulgate rules, regulations, and instructions by which all employees in such occupations are informed as to their duties and restrictions of their employment. The safety of the employee engaged in the hazardous occupations is the dominant idea running through the statute. Paragraph 3158 of the Civil Code sets forth the conditions, which, occurring, fix the employer’s liability for personal injuries suffered by employees, to wit:
“When in the course of work in any of the employments or occupations enumerated in the preceding section (paragraph 3156), personal injury or death by any accident arising out of and in the course of such labor, service and employment, and due to a condition or conditions of such occupation or employment, is caused to or suffered by any workman engaged therein, in all cases in which such injury or death of such employee shall not have been caused by the negligence of the employee killed or injured, then the employer of such employee shall be liable in damages to the employee injured, or, in case death ensues, to the personal representative. ...”
The conditions occurring which create liability to respond in damages are: That the person injured must be in the service of the proprietor carrying on the hazardous industry; that the industry to be dangerous and hazardous must be one which fairly comes within one or more of the industries enumerated in paragraph 3156; that at the time the injury was suffered, the employee injured must be engáged in the performance of some duty of his employment; that the accident causing the injury suffered arose from the dangerous and hazardous nature of the service required in the industry as such is ordinarily carried on, and in carrying on such service necessary risks and dangers inherent therein are present as a menace to the workman without knowledge of which and without incurring the danger of injury therefrom he cannot perform such required service. In other words, this statute creates a liability of the master to damages suffered from any accident befalling his servant while engaged in the performance of duties in dangerous occupations without requiring the negligence of the master to be shown as an element of the right to recover; and it likewise takes away from the master his common-law right of defense of assumption of ordinary risk by the servant, and leaves to the master the right to de[162]*162fend upon the grounds that the servant assumed the ordinary risks other than risks inherent in the occupation.
The statute clearly does not require as a condition of liability that the accident causing the injury proximately resulted from the master’s negligence, and it as clearly does exclude as a matter of defense the assumption of all ordinary and extraordinary risks inherent in the occupation. Such risks and dangers as are inherent in the occupation are declared to be unavoidable risks and dangers, and therefore it necessarily follows that the employee in entering upon his duties does not assume such ordinary inherent risks, although known to him. Such risks as he may assume must be risks and dangers other than risks and dangers inherent in the occupation. As was said by Justice PITNEY in New York C. R. Co. v. White, 243 U. S. 188, 61 L. Ed. 667, 37 Sup. Ct. Rep. 247:
“The scheme of the act is so wide a departure from common-law standards respecting the responsibility of employer to employee that doubts naturally have been raised respecting its constitutional validity. The adverse considerations urged or suggested in this ease and in kindred eases submitted at the same time are: (a) That the employer’s property is taken without due process of law, because he is subjected to a liability for compensation without regard to any neglect or default on his part or on the part of any other person for whom he is responsible, and in spite of the fact that the injury may be solely attributable to the fault of the employee. ... In support of the legislation, it is said that the whole common-law doctrine of employer’s liability for negligence, with its. defenses of contributory negligence, fellow-servant’s negligence, and assumption of risk, is based upon fictions, and is inapplicable to modern conditions of employment; that in the highly organized and hazardous industries of the present day the causes of accident are often so obscure and complex that in a material proportion of cases it is impossible by any method correctly to ascertain the facts necessary to form an accurate judgment, and in a still larger proportion the expense and delay required for such ascertainment amount in effect to a defeat of justice; that, under the present system, the injured workman is left to bear the greater part of industrial accident loss, which, because of his limited income, he is unable to sustain, so that he and those dependent upon him [163]*163are overcome by poverty and frequently become a burden upon public or private charity. ...”
The statute under consideration in the White case is a compensation statute of the state of New York. The constitutional question involved in that case, as shown by the foregoing statement of the matter, is the identical question raised in this case, viz., the power of the state to create a liability against the employer for accidental injuries to employees which occur without fault of the employer. In discussing this question the court said, after stating the opposing contentions:
“In considering the constitutional question, it is necessary to view the matter from the standpoint of the employee as well as from that of the employer. For, while plaintiff in error is an employer, and cannot succeed without showing that its rights as such are infringed (Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 544, 58 L. Ed. 713, 719, 34 Sup. Ct. Rep. 359; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 576, 59 L. Ed. 365, 368, 35 Sup. Ct. Rep. 167; 7 N. C. C. A. 570); yet, as pointed out by the court of appeals in the Jensen Case, 215 N. Y. 526 [Ann. Cas. 1916B, 276, L. R. A. 1916A, 403, 109 N. E. 600], the exemption from further liability is an essential part of the scheme, so that the statute, if invalid as against the employee, is invalid as against the employer. The close relation of the rules governing responsibility as between employer and employee to the fundamental rights of liberty and property is, of course, recognized. But those rules, as guides of conduct, are not beyond alteration by legislation in the public interest. No person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for his benefit. Munn v. Illinois, 94 U. S. 113, 134, 24 L. Ed. 77, 87; Hurtado v. California, 110 U. S. 516, 532, 28 L. Ed. 232, 237, 4 Sup. Ct. Rep. 111, 292; Martin v. Pittsburg & L. E. R. Co., 203 U. S. 284, 294, 8 Ann. Cas. 87, 51 L. Ed. 184, 191, 27 Sup. Ct. Rep. 100; Second Employers’ Liability Gases (Mondou v. New York, N. H. & H. R. Co.), 223 U. S. 1, 50, 38 L. R. A. (N. S.) 44, 56 L. Ed. 327, 346, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; Chicago & A. R. Co. v. Tranbarger, 238 U. S. 67, 76, 59 L. Ed. 1204, 1210, 35 Sup. Ct. Rep. 678. The common law bases the employer’s liability for injuries to the employee upon the ground of negligence; but negligence is merely the disregard of some duty imposed [164]*164■by law, and the nature and extent of the duty may be modified by legislation, with corresponding change in the test of negligence. Indeed, liability may be imposed for the consequences of a failure to comply with a statutory duty, irrespective of negligence in the ordinary sense; safety appliance acts being a familiar instance. St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 295, 52 L. Ed. 1061, 1068, 28 Sup. Ct. Rep. 616, 21 Am. Neg. Rep. 464; Texas & P. R. Co. v. Rigsby, 241 U. S. 33, 39, 43, Ann. Cas. 1917B, 283, 60 L. Ed. 874, 877, 878, 36 Sup. Ct. Rep. 482.”
The court then discusses the liability of the employer according to the maxim respondeat superior, the employer’s immunity from liability under the common-law doctrine of félluw-servant, the general doctrine of assumption of risk, and the doctrine of contributory negligence, and says:
. “But it is not necessary to extend the discussion. This court repeatedly has upheld the authority of the states to •establish by legislation departures from the fellow-servant rule and other common-law rules affecting the employer’s •liability for personal injuries to the employee. Missouri P. R. Co. v Mackey, 127 U. S. 205, 208, 32 L. Ed. 107, 108, 8 Sup. Ct. Rep. 1161; Minneapolis & St. L. R. Co. v. Herrick, 127 U. S. 210, 32 L. Ed. 109, 8 Sup. Ct. Rep. 1176; Minnesota Iron Co v. Kline, 199 U. S. 593, 598, 50 L. Ed. 322, 325, 26 Sup. Ct. Rep. 159, 19 Am. Neg. Rep. 625; Tullis v. Lake Erie & W. R. Co., 175 U. S. 348, 44 L. Ed. 192, 20 Sup. Ct. Rep. 136; Louisville & N R. Co. v. Melton, 218 U. S. 36, 53, 47 L. R. A. (N S.) 84, 54 L. Ed. 921, 928, 30 Sup. Ct. Rep. 676; Chicago, I. & L. R. Co. v. Hackett, 228 U. S. 559, 57 L. Ed. 966, 33 Sup. Ct. Rep. 581; Wilmington Star Min. Co. v. Fulton, 205 U. S. 60, 73, 51 L. Ed. 708, 715, 27 Sup. Ct. Rep. 412; Missouri P. R. Co. v. Castle, 224 U. S. 541, 544, 56 L. Ed. 875, 878, 32 Sup. Ct. Rep. 606. A corresponding power on the part of Congress, when' legislating within its appropriate sphere, was sustained in Second Employers’ Liability Cases (Mondou v. New York, N. H. & H. R. Co.), 223 U. S. 1, 38 L. R. A. (N. S.) 44, 56 L. Ed. 327, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875. And see El Paso & N. E. R. Co. v. Gutierrez, 215 U. S. 87, 97, 54 L. Ed. 106, 111, 30 Sup Ct. Rep. 21; Baltimore & O. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 619, 55 L. Ed. 878, 883, 31 Sup. Ct. Rep. 621. It is itrue that in the case of the statutes thus sustained there were [165]*165reasons rendering the particular departures appropriate.. Nor is it necessary, for the purposes of the present ease, to say that a state might, without violence to the constitutional guaranty of ‘due process of law,’ suddenly set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute. . . . It perhaps may be doubted whether the state could abolish all fights of action, on the one hand, or all defenses, on the other, without setting up something adequate in their stead. No suhh question is here presented, and we intimate no opinion upon it.”
Discussing the particular features of the case at some length, the court then says:
“Much emphasis is laid upon the criticism that the act creates liability without fault. This is sufficiently answered by what has been said, but we may add that liability without fault is not a novelty in the law. The common-law liability of the carrier, of the innkeeper, or him who employed fire or other dangerous agency or harbored a mischievous animal, was not dependent altogether upon questions of fault or negligence. Statutes imposing liability without fault have been sustained. St. Louis & S. F. R. Co. v. Mathews, 165 U. S. 1, 22, 41 L. Ed. 611, 619, 17 Sup. Ct. Rep. 243; Chicago, R. I. & P. R. Co. v. Zernecke, 183 U. S. 582, 586, 46 L. Ed. 339, 340, 22 Sup. Ct. Rep. 229. We have referred to the maxim,respondeat superior. In a well-known English case, Hall v. Smith, 2 Bing. 156, 160, 130 Eng. Reprint, 265, 9 J. B. Moore, 326, 2 L. J. C. P. 113, this maxim was said by Best, C. J., to be ‘bottomed on this principle, that he who expects to derive advantage from an act which is done by another for him must answer for any injury which a third person may sustain-from it.’ ... In excluding the question of fault as a cause of the injury, the act in effect disregards the proximate cause and looks to one more remote — the primary cause, as it may be deemed — and that is, the employment itself. For this; both parties are responsible, since they voluntarily engage in it as coadventurers, with personal injury to the employee as a probable and foreseen result. ... In our opinion, laws regulating the responsibility of employers for the injury or death of employees, arising out of the employment, bear so close a relation to the protection of the lives and safety of those concerned that they properly may be regarded as com[166]*166ing within the category of police regulations. Sherlock v. Alling, 93 U. S. 99, 103, 23 L. Ed. 819, 820; Missouri, P. R. Co. v. Castle, 224 U. S. 541, 545, 56 L. Ed. 875, 879, 32 Sup. Ct. Rep. 606.”
Thus, from the court of ultimate authority over questions affecting constitutional guaranties and rights, we find answers to all of the arguments advanced hy the appellant why chapter 6 of title 14 is in conflict with the Fourteenth Amendment of the Constitution of the United States. I am of the opinion that the statute is free from the objections urged by appellant on the authority of such case.
It is undoubtedly true that our statute which limits the common-law rule of assumption of ordinary risks, to risks other than risks and hazards which are inherent in such occupations and which are unavoidable by the workman thereby contracts the scope of the employer’s defense in such cases; but the defense of assumption of risks other than ordinary risks and hazards and risks and hazards which are not inherent in such occupations still remains open to him as before, and may be pleaded in defense as before, only the question must be determined by the jury as a fact and not by the court as a question of law. Hence, if the employer “shall by rules, regulations or instructions inform all employees in such occupations as to the duties and restrictions of their employment, to the end of protecting the safety of employees in such employment, ” as required by paragraph 3157, and during the course of such employment any employee so informed does an act beyond his duty or in violation of the restrictions of his employment dangerous in character, and suffers injury from an accident occurring, the employer may defend upon the grounds of both assumption of risk by the employee, and if the accident resulted from negligence the employer may interpose the defense of contributory negligence as the case may be. In either event the defense must be specially set forth and tried as an issue of fact. While the statute restricts the employer’s rights of defense, it does not abolish such rights.
■ The appellant questions the validity of the statute because the amount recoverable is not limited thereby. Section 6 of article 18, state Constitution, provides that:
“The amount recovered shall not be subject to any statutory limitation.”
[167]*167And section 31, article 2, of the state Constitution, provides that:
“No law shall he enacted in 'this state limiting the amount of damages to be recovered for causing the death or injury of any person.”
A statute which would attempt to forcibly limit the amount recoverable for personal injuries suffered would be in direct conflict with these plain, simple provisions of the state Constitution. Statutes which provide a limited amount in satisfaction of damages and leave .to the parties interested the right to elect to abide by its provisions are controlled by other principles of law and justice, and should not be confused with statutes imperative in their terms. The appellant contends as a further ground for reversal that the court erred in rejecting the evidence of Dr. Bacon as to the condition of appellee’s eyes, as the doctor found such condition to be from a personal examination of appellee a short time after the accident. With regard to the rejection of this testimony the record discloses that witness, Dr. Bacon, was the superintendent in charge of appellant’s hospital department when plaintiff was injured, and that plaintiff was treated for the injuries to his eyes under the supervision of Dr. Bacon, and to some extent plaintiff was treated personally by Dr. Bacon. Dr. Bacon testified fully and extensively as an expert in the matters of infections of wounds to the eyes and cause of such infections. He testified:
“I saw Mendez on the first day of July and inspected and saw his eyes. From my examination made of Mendez at that time I know what the condition of his eyes was. . . . Q. Now, Doctor, from your examination made at that time, state what the condition of his eyes was.”
The plaintiff objected upon the ground that:
“ . . . This is a privileged communication, and is also a privileged, you might say, examination; that the doctor is disqualified to testify as to what he discovered by the examination for the reason that the man was at that time under his professional care, and that the plaintiff has not consented to the testimony.”
The court sustained the objection. The objection was based upon subdivision 5 of paragraph 1677, reading as follows:
“The following persons cannot be witnesses in a civil action: ... (6) A physician or surgeon cannot be examined, [168]*168without the consent of his patient, as to any communication made by his patient with reference to any physical or.supposed physical disease or any knowledge obtained by personal examination o‘f such patient: Provided, that if a person offer himself as a witness and voluntarily testify with reference to such communications, that is to be deemed a consent to the examination of such physician or attorney.”
The supreme court of the United States had before it the interpretation and application of this statute in Arizona & N. M. R. Co. v. Clark, 235 U. S. 669, L. R. A. 1915C, 834, 59 L. Ed. 415, 35 Sup. Ct. Rep. 210, and placed a construction on the statute drawing a distinction between knowledge gained by the physician through verbal communications made to him by the patient, and knowledge gained through a personal examination of the patient. The patient may be deemed to have given consent to the doctor’s testifying with regard to knowledge gained through verbal communications made by the patient when the patient has referred to such communications in his pleadings or in testimony, but such reference does not open the door to the physician to also testify as to his knowledge gained by a personal examination of the patient, and such is the testimony called for by the question. The construction placed on the statute by the court in the Clark case, and the application there made, are so evidently correct that I fully concur in both positions there taken, and adopt them as entirely applicable here within the correct understanding of the said statute.
The objection that the verdict is not sustained by the evidence does not point out wherein the failure of the evidence occurs. The claim is made that the verdict is excessive because it rests on the plaintiff’s evidence, the testimony of the doctor having been excluded. In answer to such objection all the law requires the record to show is substantial evidence in support of the verdict. This is shown by the record. The matter of the weight of evidence is left with the jury solely, and the jury’s determination of that matter will not be disturbed on appeal.
I find no reversible error in the record. Consequently, I am of the opinion the judgment must be affirmed.
FRANKLIN, C. J., concurs.