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a business, and the other a railroad, com- was, and the court sustained the objection. pany. * The charter of the plaintiff Section 2032 of the Code of Civil Procedure and the laws of this state expressly require provides that “the deposition may be used the plaintiff to transport persons and freight, by either party upon the trial * * * suband the plaintiff can be compelled by man- ject to all legal objections,” unless the objecdamus to do so if it refuses. The fact that tion be “to the form of an interrogatory,' almost the entire volume of business now in which this was not. It is contended that sight for the plaintiff to do will be transpor- "plaintiff, offering the deposition, was estoptation of coal produced by the Kansas & Tex- | ped from objecting to the same.” The quesas Coal Company does not destroy the charac- tion called for the "deliberate judgment" of ter of the plaintiff as a railroad company, nor the witness as to a matter, and not the facts convert it into a private, and not a public, as to the matter, and was clearly inmaterial railroad; nor does it make the use to which and incompetent. The court did not err in the land sought to be condemned is to be its ruling. applied any the less a railroad right of way, Exception 12. Upon the question of defendand therefore a public use." Upon the same ant company's damage, defendant sought to general question, see Oregon Short Line v. show the condition in which the McLennan Telegraph, 111 Fed. 842, 49 C. C. A. 663. road was left by plaintiff's grading, at points

There are numerous errors of law assign- | other than along the land of defendant comed in the exclusion and admission of evidence. pany, over which the right of way was being Many of them are inconsequential and need condemned, for the purpose of enhancing the not be noticed. Others present rulings which, damage to defendant company. The court conceding error, were without prejudice to sustained the objection to such evidence, and, appellant. Still others are disposed of by the we think, rightly. foregoing discussion.

Exception 13. Considering all the testimony Exception 2. Before the trial defendant brought out in connection with the ruling company took the deposition of R. W. Camp- of the court complained of, we see no error, bell, secretary of plaintiff, and in the taking for defendant had the benefit of all the witcalled for copies of certain records of the ness knew on the subject. plaintiff company, which were produced and Exception 14. It was not error to admit at incorporated into the deposition. At the trial | plaintiff's instance the testimony of the witplaintiff offered this deposition in evidence, ness Knowles on the question of damage givand, in reading it, objection was made to the en in the condemnation suit when the Mcadmission of those record copies as not the Lennan private road was before the court. best evidence, and defendant also demanded In admitting the testimony, the court limthat the originals should be produced, citing ited it to the value of the land upon condition section 1000, Code Civ. Proc. Having been that it be shown that the value had not chanintroduced by defendant and made part of ged. Upon the question of damage the court the deposition taken by it, the copies therein held that a different element entered into incorporated were as admissible as any other the matter where the taking was for a railportions of the deposition. “When a deposi- road, and the damage might be different. tion has been once taken, it may be read by | Under the limitation made by the court the either party at any stage of the same action testimony worked no injury to defendant. or proceeding, * * * and is then deemed Exceptions were taken to certain rulings the evidence of the party reading it.” Code as violating the law as laid down in San DiCiv. Proc. $ 2034. The demand made was ego Land, etc., Co. v. Neale, 78 Cal. 63, 20 Pac. substantially for all the books and papers 372, 3 L. R. A. 83. We cannot see that the and records of plaintiff, some few of which court departed materially from the rules were specified, many of which were incor- established by that case. porated in the deposition, and all of which The judgment and order are affirmed. were at the office of the company in San Francisco, while the trial was going for

We concur: BUCKLES, J.; MCLAUGHward at Madera. There was no sufficient

LIN, J. showing by affidavit or otherwise that these records and papers not appearing in the deposition were material to defendant's defense.

(44 Wash. 14) As was said in Ex parte Clark, 126 Cal. 235, BERG V. SEATTLE, R. & S. RY. CO. 58 Pac. 546, 46 L. R. A. 835, 77 Am. St. Rep. 176, the motion was "in effect a general

(Supreme Court of Washington. Sept. 24; 1906.) omnibus order (motion] for the production 1. MASTER AND SERVANT-INJURY TO SERVof all of defendant's (plaintiff's] books, which ANT-FELLOW SERVANTS. has always been held to be unauthorized.”

The motorman and conductor of one car on

a street railroad, the cars of which run on Besides, the general purpose which the rec

schedule time, are fellow servants of the motorords were intended to establish appeared in man and conductor of another car on the line, many ways in the course of the trial.

so that one of the motormen injured through the Exception 3. During the reading of the dep

negligence of the other motorman in not per

forming his duty of turning on the lights of a osition plaintiff objected to a question as im

block-light system, and of the conductor of the material and incompetent, which in fact it other car in not performing his duty to see that his motorman performed such duty, cannot re- street. When the lights were turned on at cover of the company.

Lane street, they burned on the south side [Ed. Note.—For cases in point, see. vol. 34, of each pole through to Norman street. The Cent. Dig. Master and Servant, $8506-508.]

lights could be turned off only at the point 2. SAME-NEGLIGENCE OF MASTER. A street railroad does not fail to furnish

where they were turned on. These lights a sufficient block-light system, so as to be liable were for use in the nighttime and in foggy for injury to a motorman from collision with

weather. The motormen on all cars were another car on the block, where it appears that required to turn on the lights when enterthe accident could not have happened had the motorman and conductor of the other car per

ing the block and the next car back was formed their duty of turning on the light before required to turn the lights off. It was the entering on the block.

duty of conductors to see that the motorFullerton, Iladley, and Dunbar, JJ., dissent- men turned the lights on and off. On the ing.

morning of October 25, 1901, respondent, as Appeal from Superior Court, King County; | motorman on his car, left Renton for Seattle. George C. Hatch, Judge.

When he arrived at Norman street he says Action by Thomas Berg against the Seattle, he was a little late, a minute or two. The Renton & Southern Railway Company. Judg- | morning was very foggy. He found the ment for plaintiff. Defendant appeals. Re | lights turned to the north, indicating that a versed with directions to dismiss.

car was preceding him through the block.

The lights were not burning to the south. John P. Hartman, for appellant. Walter s. Fielton and Martin J. Lund, for respondent, spondent to proceed through the block. Re

The conductor on respondent's car told reMOUNT, C. J. Action for personal in

spondent thereupon proceeded at the rate of juries. Plaintiff recovered a judgment for about eight miles per hour, and, at about the $5,000. Defendant appeals.

middle of the block, after he had gone a The appellant operated a line of electric distance of 870 feet, he collided with a car street railway between Seattle and Renton, coining, south, and was severely injured. à distance of 12 miles. The line consisted The motorman on the south-bound car had of a single track, with numerous switches neglected to turn on his lights south, and had and side tracks or turnouts. There were proceeded with those lights not burning. but two through cars between Seattle and Respondent stated that if these lights had Renton. There were four or five local cars been thrown on, he would have seen them running between Seattle and Rainier Beach, and the accident could not have happened. which was a station some eight miles out of The motorman on the south-bound car testiSeattle. The respondent was employed as

fied that he did not turn his lights on bea motorman on one of the through cars. cause the conductor on the car preceding These two through cars were called express l'espiondent's car had just come through the cars by reason of the fact that they were block and changed to the car south bound, not required to stop at all of the stations and said that the north lights were his lights and street crossings, and because it was the thrown on by him as he had just come duty of the local cars which stopped at through the block. There was dispute at each street crossing to turn out on the sid- the trial as to what the rules of the comings in order that the through cars might | pany were with regard to the use of the pass them. All the cars ran on schedules | lights, the company claiming that the motorfixed by the railway company. The railway men were prohibited from passing a burncompany had constructed a block-light sys- ing light which such motorman himself had tem, known as a single-block system, between not turned on, while respondent's evidence Norman street and Lane street in the city o* was to the effect that motormen were only Seattle. The distance between these two prohibited from running on lights pointing streets was 1,665 feet. There were sidings against the way his car was going. We at Norman street and at Lane street, bui must assume, for the purposes of this case, none between these points. The grade was that the rule of the company was as stated not level, but the railway line was straight | by the plaintiff. The question is then squarebetween these points so that a car could be ly presented, whether the failure of the seen in the day time from one end of the conductor and motorman, whose duty it was block system to the other, except in fogg; to turn the lights on, which they neglected weather. Norman street was further souti to do, rendered the company liable to the from Seattle than Lane street. Renton was respondent. In other words, were the motorin a southerly direction from Seattle. The man and conductor on the one car fellow block-light system consisted of five poles servants of the motorman and conductor about equal distance apart, one pole being on the other car? at Lane street, one at Norman street, and It seems to us that there can be no escape the other three between these two extremes. from the conclusion that they were fellow On each of these poles were two red in- servants. They were each engaged in the candescent electric lights. When the lights same common employment, meeting and passwere turned on at Norman street by means ing each other frequently and associating of a rope or lever, one red light burned on together every day. This case cannot be the north side of each pole through to Lane distinguished from the case of Grimm v. Olympia Light & Power Company (Wash.) train were not fellow servants with em84 Pac. 635, except in immaterial particulars. | ployés on a work train, but this rule had It is true, in the Grimm Case there was no not been applied to street railway cases. The fixed schedule of running time, and the reasons therefor are given in Grimm V. motormen themselves arranged the places of Olympia Light & Power Co., supra. A meeting; and it is also true there were no large number of cases are cited where we conductors in the Grimm Case, and that the have permitted one servant to recover from motormen had sole charge of their cars. the master by reason of negligence of anThese are the only facts in which the Grimm other servant. But those have been cases Case differs from this case in the point at where the negligence was the omission of issue. The fact that there was no fixed some positive duty of the master. It is schedule was one of the facts which was unnecessary for us to cite these cases here, claimed as negligence of the company in or to review them at length for, in such cases the Grimm Case. But, under the circum- as well as cases not cited, we have uniformstance of that case, no fixed time was prac-ly recognized the rule that the master is ticable or could be established. In this case not liable for injuries resulting to a servant there was a fixed schedule for all cars, by the negligence of a fellow servant. Millett and it is not claimed that the motormen v. Puget Sound, etc., Works, 37 Wash. 138, were incompetent or inexperienced or that 79 l'ac. 950; Stevick v. N. P. Ry. Co., 39 they did not know the time schedule for Wash. 501, 81 Pac. 999. The questions usualeach car. The number of cars was not great | ly presented have been whether the facts and the motormen and conductors were re- in particular cases bring the injured party quired to know, and did know, the schedule within the rule of fellow servant. In detime of each car. So the fact that there terminating who were fellow servants we was a schedule was in favor of the appellant have said that servants must not only be and not against it. While there was a engaged in a common employment, but must conductor in charge of each car in this have orpportunity to use precautions against case, the conductor's authority over the mo- cach other's negligence. Grimm v. Olympia torman extended only to starting and stop- Light & Power Co., supra, and cases there ping of the cars and in collecting fares. cited. In this case the motormen were enIn regard to the speed of the car, the hand- gaged in the same common employment, that ling of the lights, and meeting cars and the of operating street cars over the same line. like, the duties of the motormen and con- They necessary met each other every hour ductors were co-ordinate. It is conceded of the day, because the time from Seattle that it was the duty of the motorman when to Renton consumed but 47 minutes. They he entered the block to turn on the light took their cars from the same barn, and the without any order from the conductor. But same rules were furnished to each. There it was the duty of the conductor to notice was such co-association and co-operation in the light and see that the motorman did his

the same line of employment as that each duty in that respect. If one was negligent, one necessarily knew the habits and capacity both were. There is, therefore, no question of the other and had opportunity of exerof superior servant in regard to turning on cising mutual influence upon the other. This the light, which is conceded to have been made them fellow servants within the rule the act of negligence which caused the col- which we have beretofore laid down. It lision and injury. In Howe v. Northern is true that one of the allegations of negli· Pacific Ry. Co., 30 Wash. 569, 70 Pac. 1100, gence in the complaint was that the mas60 L. R. A. 919, we held that a brakeman ter failed to furnish a sufficient block system was not a fellow servant with a conductor upon the block where the collision occurred, on his train, because in that case the brake- but the respondent testified that, if the motorman was subordinate to the conductor and man on the south-bound car had turned his was not required to place signals except lights south when he entered upon the block, upon orders of the conductor. In that case the accident could not have occurred; bethe superior servant doctrine was therefore (ause respondent in that event would have applicable and was sustained. In Conine v. seen the lights and remained at Norman Olympia Logging Company, 36 Wash. 315, street or returned to that point. It was 78 Pac. 932, we held that a signal man was nowhere claimed that the light system was not a fellow servant with the engineer of a defective in its construction or operation, logging engine, where the master had furn- and the statement that the accident could ished no means of communication from the not have happened if the light had been engineer to the signal man. That case can used, indicates that the system was sufficient have no controlling influence in this case, for the purposes for which it was intended, because here the master had provided means and was reasonably safe, which is all that of communication which was sufficient for is required. C. & E. I. R. R. Co. v. Driscoll, the purpose and which appliance was no 176 Ill. 330, 52 N. E. 921. The respondent used by either servant. In the case of knew the system; he had worked under it Northern Pacific R. R. Co. v. O'Brien, 1 for about 18 months, and had made no comWash. St. 599, 21 Pac. 32, this court held plaints concerning it. He knew the rules that a conductor and engineer on a railway required the motorman to turn on the lights on entering the block. The rules and sys- and wife and the Washington Safe Deposit tem were for the protection of the motor- & Trust Company. From a judgment in famen as well as for the protection of passen- vor of Stanford and wife and against said gers. The appliances were reasonably safe, Safe Deposit & Trust Company on an issue and it was the duty of the motorman to use between them as to the right to the award, them for the purpose of preventing collisions the Safe Deposit & Trust Company appeals. and delays. Under the evidence of respond- Athirmed. ent above stated, assuming that he was cor

Cullen & Dudley, for appellant. Munter rect in his construction of the rules that

& Jesseph, for respondents. it was the duty of the motorman on the south-bound car to turn his light, it was the

DUXBAR, J. This action was instituted duty of the trial court to take the case by a petition filed by the Spokane Terminal from the jury upon the motion of the appel

Company for the condemnation of lots 30 and lant, upon the ground that the act of negli- 31. in Second addition to Third addition to gence directly causing the collision was the

Railroad addition to Spokane Falls. In the act of a fellow servant. It may be said, in

petition it was alleged that the defendants L. justice to the trial court, that the case of

P. Stanford and wife were the owners of Grimm v. Olympia Light & Power Company

the lots, and that the defendant the Washhad not been decided when this case was

ington Safe Deposit & Trust Company tried.

claimed some lien thereon or interest thereThe judgment is reversed, with directions

in. The Washington Safe Deposit & Trust to the lower court to dismiss the action.

Company appeared and filed an answer, de

uying the ownership of the lots by the StanCROW. ROOT. and RUDKIX, JJ.. concur.

fords. alleging title in itself, and that the FULLERTOX, HADLEY, and DUNBAR, JJ.,

Stanfords occupied the lots as tenants of dissent.

itself and its predecessors in interest. The

Stanfords replied, denying the allegations (44 Wash. 45) SPOKANE TERMINAL CO. v. STANFORD

of ownership in the appellant, and tenancy,

and alleged affirmatively title in themselves et al.

under a tax deed issued by the treasurer of (Supreme Court of Washington. Sept. 25,

Spokane county, March 17, 1902. The con1906.)

demnation proceedings were tried out, and 1. TAXATION – TAX DEED-SEAL OF COUNTY TREASURER.

an award of $1,200 made by the jury, and The Legislature having provided no official judgment entered appropriating the lots to seal for county treasurers, the words "under the terminal company upon payment of the the official seal of his office" in Laws 1897, p. award. The issues raised by the appellant's 184, c. 71, § 103, as amended by Laws 1899, p. 299, c. 141. $ 18. providing that on sale of land

answer and the reply of the Stanfords were for taxes the county treasurer shall execute to

not tried at that time, and the judgment the purchaser a tax deed, and the deed so made entered in the condemnation proceedings by him. under the official seal of his office, shall be recorded in the same manner as other con

provided, among other things, that it appearveyances of real estate, and shall vest in the

ing that there was a contest between the degrantee the title, are mere surplusage, and with

fendants concerning the title to said premout effect.

ises and to the right to the money awarded, [Ed. Note.-For cases in point, see rol. 45, the amount of the judgment when paid should Cent. Dig. Taxation, § 1524.]

be retained in the registry of the court until 2. CONSTITUTIONAL LAW-RETROACTIVE LAWS

the determination of the rights of the re-CURATIVE ACTS-TAX DEEDS. Laws 1903, p. 14, c. 15, $ 2, which, after

spective defendants to the indemnity prothe act has provided that the county treasurer

ceedings. The award was paid into the shall have an official seal, provides that where court. The issues between the respondents the county treasurer shall have executed a tax

Stanford and wife and the appellant came deed prior to the taking effect of such act, it shall not be deemed invalid by reason of the

on for hearing, and, upon such hearing, judgtreasurer not having affixed a seal of office to ment was entered holding that the title to it, or having affixed a seal not an official seal;

the lots at the time of the condemnation was nor shall said deed be deemed invalid by reason of the fact that, at the date of the execution

in the Stanfords and that the appellant had of the deed, there was no statute providing for

no interest therein, and ordering that the an official seal for the office of county treasur- money deposited in the court by the terminal er, is not void because of its retroactive effect, even if when the deed was executed there was

company be paid to the Stanfords. From a law requiring the treasurer to affix to it the

this judgment the appeål is taken. So that official seal of his office, the attachment of his the issues relate solely to the title to the seal not being a prerequisite to his jurisdiction, lots condemned. The case was tried withbut a mere matter of detail, which the Legis. lature might have dispensed with without vio

out a jury and no findings of fact or conlation of any constitutional provision.

clusions of law were made or filed.

The assignments are (1) that the court Appeal from Superior Court, Spokane

Court, Spokane erred in failing to find the respondents L. County; Miles Poindexter, Judge.

P. Stanford and wife were tenants of the Condemnation proceedings by the Spokane appellant's predecessor in interest; (2) the Terminal Company against L. P. Stanford court erred in refusing to hold that the respondents L. P. Stanford and wife were pre- therefore be attached by the county treascluded by their relation as tenants from ac- urer; that the deed, not having complied quiring a tax title to the lots in contro- with the mandatory requirements of the versy; (3) the court erred in admitting in law, is therefore void; that it not being such evidence, over the appellant's objection, the a deed as is required by the statute, it was treasurer's deed; (4) the court erred in re- not prima facie evidence, and that its adfusing to hold the tax deed void; (5) the mission in evidence was error. This concourt erred in holding that it appeared that struction of the law is suggested largely by the respondents were the owners of the lots the Nebraska cases, initiated in Sutton · v. condemned and entitled to the award paid in Stone, 4 Neb. 319, cited by appellant, and the condemnation proceedings.

which rule was followed in many subsequent It is contended by the appellant that a Nebraska cases. But the rule laid down in tenant cannot acquire the demised property the Nebraska cases, we think, stands subas against the landlord at a tax sale, and stantially alone in the adjudications in the that a tenant who has entered or held posses- United States. The United States cases citsion of the premises under the landlord can- ed to sustain this doctrine simply, as is their not, at least without surrendering possession, uniform custom, sustained the construction be heard to dispute the landlord's title, and placed upon state statutes by state courts. many cases are cited to sustain this conten- In the case at bar the Legislature, after tion. This question, in our judgment, might making a provision that the deed should be disposed of by the statement that a perusal be made under the official seal of the treasof the record satisfies us that the court was urer's office, failed to provide any official warranted in refusing to find that the re- seal; so that there is no violation of the spondents were tenants of Stocker, the ap- law by the treasurer or omission of any of pellant's grantor, though we do not wish to the mandatory provisions of the statuteimpliedly hold that the rule that a tenant mandatory in the sense of being harmonious shall not be allowed to dispute the title of and capable of being performed. Either it his landlord reaches beyond the particular was the intention of the Legislature that the title under which he enters into possession, treasurer should establish or make an official or that he may not receive a tax title where seal and use it (and if that was the intention, he is under no obligation to pay the taxes then the law was complied with in this case), on the land which becomes delinquent. The

or there was an inadvertence and omission deed from the county to the respondent L. on the part of the Legislature in not proI. Stocker was offered in evidence over ap- viding the seal which it had in mind. For pellant's objection, and the ruling of the

we will not impute to the Legislature the court on this is alleged as error. The deed,

intention to provide for the issuance of so which is in evidence as respondents' Exhibit

important an instrument as a tax deed with A, is dated March 27, 1902, and contains the

the deliberate intention of so framing the following recital by the maker: "Given un

law that the deed could not be executed at der my hand and seal of office this 17th

all. We think that "under the official seal day of March, A. D. 1902." There is there

of his office" must be construed as surplusage, on the impression of a seal purporting to be

not having any relation to or connection the official seal of the county treasurer.

with any other provision made in the act, Section 103 of the revenue act of 1897 (Laws

and that it is not a mandatory requirement. 1897, p. 184, c. 71) as amended by section 18

The mandatory requirement is that the counof the act of 1899 (Laws 1899, p. 299, c. 141),

ty treasurer shall execute to the purchaser a provided for the sale of lands by the treasur

tax deed, and that such deed shall be recorder for the enforcement of the lien of delin

ed as other conveyances of real estate. quent taxes, and provided for the issuance of

The Mississippi case cited by appellant a deed as follows: "The county treasurer

(Day v. Day, 59 Miss. 318) does not sustain shall execute to the purchaser of any piece its contention. There the statute provided or parcel of land a tax deed. The deed so

that the auditor should affix his official seal, made by the county treasurer, under the

and that he had an official seal which he official seal of his office, shall be recorded in

could affix is shown by the language of the the same manner as other conveyances of court, viz., "The auditor has an official seal, real estate, and shall vest in the grantee his and it should have been affixed to the conheirs and assigns, the title to the property," veyance.” Even in Nebraska the doctrine etc. And section 114 '(page 190) provided as contended for by appellant has been repudiatfollows: "Deeds executed by the county ed in later cases. In Orcutt v. Polsley, 59 treasurer as aforesaid shall be prima facie Neb. 575, 81 N. W. 616, the court, in passing evidence in all controversies and suits in

on this same contention, said: “It is true relation to the right of the purchaser, his that section 491c of the Code of Civil Procedheirs and assigns, to the real estate thereby ure does require the county clerk, the clerk conveyed, of the following facts," etc. The of the district court, the county treasurer," contention of the appellant is that the law etc., "to certify under their hands and offinot having prescribed any official seal for cial seals," etc. "It will be noted that some of the county treasurer, no official seal could the officers named in the statute are required

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