a business, and the other a railroad, company. * The charter of the plaintiff and the laws of this state expressly require the plaintiff to transport persons and freight, and the plaintiff can be compelled by mandamus to do so if it refuses. The fact that almost the entire volume of business now in sight for the plaintiff to do will be transportation of coal produced by the Kansas & Texas Coal Company does not destroy the character of the plaintiff as a railroad company, nor convert it into a private, and not a public, railroad; nor does it make the use to which the land sought to be condemned is to be applied any the less a railroad right of way, and therefore a public use." Upon the same general question, see Oregon Short Line v. Telegraph, 111 Fed. 842, 49 C. C. A. 663. There are numerous errors of law assigned in the exclusion and admission of evidence. Many of them are inconsequential and need not be noticed. Others present rulings which, conceding error, were without prejudice to appellant. Still others are disposed of by the foregoing discussion. Exception 2. Before the trial defendant company took the deposition of R. W. Campbell, secretary of plaintiff, and in the taking called for copies of certain records of the plaintiff company, which were produced and incorporated into the deposition. At the trial plaintiff offered this deposition in evidence, and, in reading it, objection was made to the admission of those record copies as not the best evidence, and defendant also demanded that the originals should be produced, citing section 1000, Code Civ. Proc. Having been introduced by defendant and made part of the deposition taken by it, the copies therein incorporated were as admissible as any other portions of the deposition. "When a deposition has been once taken, it may be read by either party at any stage of the same action or proceeding, * * and is then deemed the evidence of the party reading it." Code Civ. Proc. § 2034. The demand made was substantially for all the books and papers and records of plaintiff, some few of which were specified, many of which were incorporated in the deposition, and all of which were at the office of the company in San Francisco, while the trial was going forward at Madera. There was no sufficient showing by affidavit or otherwise that these records and papers not appearing in the deposition were material to defendant's defense. As was said in Ex parte Clark, 126 Cal. 235, 58 Pac. 546, 46 L. R. A. 835, 77 Am. St. Rep. 176, the motion was "in effect a general omnibus order [motion] for the production of all of defendant's [plaintiff's] books, which has always been held to be unauthorized." Besides, the general purpose which the records were intended to establish appeared in many ways in the course of the trial. Exception 3. During the reading of the deposition plaintiff objected to a question as immaterial and incompetent, which in fact it was, and the court sustained the objection. Section 2032 of the Code of Civil Procedure provides that "the deposition may be used by either party upon the trial *** subject to all legal objections," unless the objection be "to the form of an interrogatory," which this was not. It is contended that "plaintiff, offering the deposition, was estopped from objecting to the same." The question called for the "deliberate judgment" of the witness as to a matter, and not the facts as to the matter, and was clearly immaterial and incompetent. The court did not err in its ruling. Exception 12. Upon the question of defendant company's damage, defendant sought to show the condition in which the McLennan road was left by plaintiff's grading, at points other than along the land of defendant company, over which the right of way was being condemned, for the purpose of enhancing the damage to defendant company. The court sustained the objection to such evidence, and, we think, rightly. Exception 13. Considering all the testimony brought out in connection with the ruling of the court complained of, we see no error, for defendant had the benefit of all the witness knew on the subject. Exception 14. It was not error to admit at plaintiff's instance the testimony of the witness Knowles on the question of damage given in the condemnation suit when the McLennan private road was before the court. In admitting the testimony, the court limited it to the value of the land upon condition that it be shown that the value had not changed. Upon the question of damage the court held that a different element entered into the matter where the taking was for a railroad, and the damage might be different. Under the limitation made by the court the testimony worked no injury to defendant. Exceptions were taken to certain rulings as violating the law as laid down in San Diego Land, etc., Co. v. Neale, 78 Cal. 63, 20 Pac. 372, 3 L. R. A. 83. We cannot see that the court departed materially from the rules established by that case. The judgment and order are affirmed. We concur: BUCKLES, J.; McLAUGHLIN, J. (44 Wash. 14) BERG v. SEATTLE, R. & S. RY. CO. (Supreme Court of Washington. Sept. 24; 1906.) 1. MASTER AND SERVANT-INJURY TO SERVANT-FELLOW SERVANTS. The motorman and conductor of one car on a street railroad, the cars of which run on schedule time, are fellow servants of the motorman and conductor of another car on the line, so that one of the motormen injured through the negligence of the other motorman in not performing his duty of turning on the lights of a block-light system, and of the conductor of the other car in not performing his duty to see that his motorman performed such duty, cannot recover of the company. [Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 506–508.] 2. SAME-NEGLIGENCE OF MASTER. A street railroad does not fail to furnish a sufficient block-light system, so as to be liable for injury to a motorman from collision with another car on the block, where it appears that the accident could not have happened had the motorman and conductor of the other car performed their duty of turning on the light before entering on the block. Fullerton, IIadley, and Dunbar, JJ., dissenting. street. When the lights were turned on at Lane street, they burned on the south side of each pole through to Norman street. The lights could be turned off only at the point where they were turned on. These lights were for use in the nighttime and in foggy weather. The motormen on all cars were required to turn on the lights when entering the block and the next car back was required to turn the lights off. It was the duty of conductors to see that the motormen turned the lights on and off. On the morning of October 25, 1904, respondent, as Appeal from Superior Court, King County; motorman on his car, left Renton for Seattle. George C. Hatch, Judge. Action by Thomas Berg against the Seattle, Renton & Southern Railway Company. Judgment for plaintiff. Defendant appeals. Reversed with directions to dismiss. John P. Hartman, for appellant. Walter S. Fielton and Martin J. Lund, for respondent. MOUNT, C. J. Action for personal injuries. Plaintiff recovered a judgment for $5,000. Defendant appeals. The appellant operated a line of electric street railway between Seattle and Renton, a distance of 12 miles. The line consisted of a single track, with numerous switches and side tracks or turnouts. There were but two through cars between Seattle and Renton. There were four or five local cars running between Seattle and Rainier Beach, which was a station some eight miles out of Seattle. The respondent was employed as a motorman on one of the through cars. These two through cars were called express cars by reason of the fact that they were not required to stop at all of the stations and street crossings, and because it was the duty of the local cars which stopped at each street crossing to turn out on the sidings in order that the through cars might pass them. All the cars ran on schedules fixed by the railway company. The railway company had constructed a block-light system, known as a single-block system, between Norman street and Lane street in the city of Seattle. The distance between these two streets was 1,665 feet. There were sidings at Norman street and at Lane street, bui none between these points. The grade was not level, but the railway line was straight between these points so that a car could be seen in the day time from one end of the block system to the other, except in fogg weather. Norman street was further south from Seattle than Lane street. Renton was in a southerly direction from Seattle. The block-light system consisted of five poles about equal distance apart, one pole being at Lane street, one at Norman street, and the other three between these two extremes. On each of these poles were two red incandescent electric lights. When the lights were turned on at Norman street by means of a rope or lever, one red light burned on the north side of each pole through to Lane When he arrived at Norman street he says he was a little late, a minute or two. The morning was very foggy. He found the lights turned to the north, indicating that a car was preceding him through the block. The lights were not burning to the south. The conductor on respondent's car told respondent to proceed through the block. Respondent thereupon proceeded at the rate of about eight miles per hour, and, at about the middle of the block, after he had gone a distance of 870 feet, he collided with a car coming, south, and was severely injured. The motorman on the south-bound car had neglected to turn on his lights south, and had proceeded with those lights not burning. Respondent stated that if these lights had been thrown on, he would have seen them and the accident could not have happened. The motorman on the south-bound car testified that he did not turn his lights on because the conductor on the car preceding respondent's car had just come through the block and changed to the car south bound, and said that the north lights were his lights thrown on by him as he had just come through the block. There was dispute at the trial as to what the rules of the company were with regard to the use of the lights, the company claiming that the motormen were prohibited from passing a burning light which such motorman himself had not turned on, while respondent's evidence was to the effect that motormen were only prohibited from running on lights pointing against the way his car was going. We must assume, for the purposes of this case, that the rule of the company was as stated by the plaintiff. The question is then squarely presented, whether the failure of the conductor and motorman, whose duty it was to turn the lights on, which they neglected to do, rendered the company liable to the respondent. In other words, were the motorman and conductor on the one car fellow servants of the motorman and conductor on the other car? It seems to us that there can be no escape from the conclusion that they were fellow servants. They were each engaged in the same common employment, meeting and passing each other frequently and associating together every day. This case cannot be distinguished from the case of Grimm v. train were not fellow servants with employés on a work train, but this rule had not been applied to street railway cases. The reasons therefor are given in Grimm Olympia Light & Power Co., supra. A large number of cases are cited where we have permitted one servant to recover from the master by reason of negligence of another servant. But those have been cases where the negligence was the omission of some positive duty of the master. It is unnecessary for us to cite these cases here, or to review them at length for, in such cases as well as cases not cited, we have uniformly recognized the rule that the master is not liable for injuries resulting to a servant by the negligence of a fellow servant. Millett v. Puget Sound, etc., Works, 37 Wash. 438, 79 Pac. 980; Stevick v. N. P. Ry. Co., 39 Wash. 501, 81 Pac. 999. The questions usual Olympia Light & Power Company (Wash.) 84 Pac. 635, except in immaterial particulars. It is true, in the Grimm Case there was no fixed schedule of running time, and the motormen themselves arranged the places of meeting; and it is also true there were no conductors in the Grimm Case, and that the motormen had sole charge of their cars. These are the only facts in which the Grimm Case differs from this case in the point at issue. The fact that there was no fixed schedule was one of the facts which was claimed as negligence of the company in the Grimm Case. But, under the circumstance of that case, no fixed time was practicable or could be established. In this case there was a fixed schedule for all cars, and it is not claimed that the motormen were incompetent or inexperienced or that they did not know the time schedule for each car. The number of cars was not greatly presented have been whether the facts and the motormen and conductors were required to know, and did know, the schedule time of each car. So the fact that there was a schedule was in favor of the appellant and not against it. While there was a conductor in charge of each car in this case, the conductor's authority over the motorman extended only to starting and stopping of the cars and in collecting fares. In regard to the speed of the car, the handling of the lights, and meeting cars and the like, the duties of the motormen and conductors were co-ordinate. It is conceded that it was the duty of the motorman when he entered the block to turn on the light without any order from the conductor. But it was the duty of the conductor to notice the light and see that the motorman did his duty in that respect. If one was negligent, both were. There is, therefore, no question of superior servant in regard to turning on the light, which is conceded to have been the act of negligence which caused the collision and injury. In Howe v. Northern Pacific Ry. Co., 30 Wash. 569, 70 Pac. 1100, 60 L. R. A. 949, we held that a brakeman was not a fellow servant with a conductor on his train, because in that case the brakeman was subordinate to the conductor and was not required to place signals except upon orders of the conductor. In that case the superior servant doctrine was therefore applicable and was sustained. In Conine v. Olympia Logging Company, 36 Wash. 345, 78 Pac. 932, we held that a signal man was not a fellow servant with the engineer of a logging engine, where the master had furnished no means of communication from the engineer to the signal man. That case can have no controlling influence in this case, because here the master had provided means of communication which was sufficient for the purpose and which appliance was no used by either servant. In the case of Northern Pacific R. R. Co. v. O'Brien, 1 Wash. St. 599, 21 Pac. 32, this court held that a conductor and engineer on a railway in particular cases bring the injured party within the rule of fellow servant. In determinating who were fellow servants we have said that servants must not only be engaged in a common employment, but must have orpportunity to use precautions against each other's negligence. Grimm v. Olympia Light & Power Co., supra, and cases there cited. In this case the motormen were engaged in the same common employment, that of operating street cars over the same line. They necessary met each other every hour of the day, because the time from Seattle to Renton consumed but 47 minutes. They took their cars from the same barn, and the same rules were furnished to each. There was such co-association and co-operation in the same line of employment as that each one necessarily knew the habits and capacity of the other and had opportunity of exercising mutual influence upon the other. This made them fellow servants within the rule which we have heretofore laid down. It is true that one of the allegations of negligence in the complaint was that the master failed to furnish a sufficient block system upon the block where the collision occurred, but the respondent testified that, if the motorman on the south-bound car had turned his lights south when he entered upon the block, the accident could not have occurred; because respondent in that event would have seen the lights and remained at Norman street or returned to that point. It was nowhere claimed that the light system was defective in its construction or operation, and the statement that the accident could not have happened if the light had been used, indicates that the system was sufficient for the purposes for which it was intended, and was reasonably safe, which is all that is required. C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330, 52 N. E. 921. The respondent knew the system; he had worked under it for about 18 months, and had made no complaints concerning it. He knew the rules required the motorman to turn on the lights on entering the block. The rules and system were for the protection of the motormen as well as for the protection of passengers. The appliances were reasonably safe, and it was the duty of the motorman to use them for the purpose of preventing collisions and delays. Under the evidence of respondent above stated, assuming that he was correct in his construction of the rules that it was the duty of the motorman on the south-bound car to turn his light, it was the duty of the trial court to take the case from the jury upon the motion of the appellant, upon the ground that the act of negligence directly causing the collision was the act of a fellow servant. It may be said, in justice to the trial court, that the case of Grimm v. Olympia Light & Power Company had not been decided when this case was tried. The judgment is reversed, with directions to the lower court to dismiss the action. CROW. ROOT. and RUDKIN, JJ.. concur. FULLERTON, HADLEY, and DUNBAR, JJ., dissent. (44 Wash. 45) SPOKANE TERMINAL CO. v. STANFORD et al. (Supreme Court of Washington. Sept. 25, 1906.) 1. TAXATION - TAX DEED-SEAL OF COUNTY TREASURER. The Legislature having provided no official seal for county treasurers, the words "under the official seal of his office" in Laws 1897, p. 184, c. 71, § 103, as amended by Laws 1899, p. 299, c. 141. § 18. providing that on sale of land for taxes the county treasurer shall execute to the purchaser a tax deed, and the deed so made by him. under the official seal of his office, shall be recorded in the same manner as other conveyances of real estate, and shall vest in the grantee the title, are mere surplusage, and without effect. [Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 1524.j 2. CONSTITUTIONAL LAW-RETROACTIVE LAWS -CURATIVE ACTS-TAX DEEDS. Laws 1903, p. 14. c. 15, § 2, which, after the act has provided that the county treasurer shall have an official seal, provides that where the county treasurer shall have executed a tax deed prior to the taking effect of such act, it shall not be deemed invalid by reason of the treasurer not having affixed a seal of office to it, or having affixed a seal not an official seal; nor shall said deed be deemed invalid by reason of the fact that, at the date of the execution of the deed, there was no statute providing for an official seal for the office of county treasurer, is not void because of its retroactive effect, even if when the deed was executed there was a law requiring the treasurer to affix to it the official seal of his office, the attachment of his seal not being a prerequisite to his jurisdiction, but a mere matter of detail, which the Legislature might have dispensed with without violation of any constitutional provision. Appeal from Superior Court, Spokane Court, Spokane County Miles Poindexter, Judge. Condemnation proceedings by the Spokane Terminal Company against L. P. Stanford and wife and the Washington Safe Deposit & Trust Company. From a judgment in favor of Stanford and wife and against said Safe Deposit & Trust Company on an issue between them as to the right to the award, the Safe Deposit & Trust Company appeals. Affirmed. Cullen & Dudley, for appellant. Munter & Jesseph, for respondents. DUNBAR, J. This action was instituted by a petition filed by the Spokane Terminal Company for the condemnation of lots 30 and 31, in Second addition to Third addition to Railroad addition to Spokane Falls. In the petition it was alleged that the defendants L. P. Stanford and wife were the owners of the lots, and that the defendant the Washington Safe Deposit & Trust Company claimed some lien thereon or interest therein. The Washington Safe Deposit & Trust' Company appeared and filed an answer, denying the ownership of the lots by the Stanfords, alleging title in itself, and that the Stanfords occupied the lots as tenants of itself and its predecessors in interest. The Stanfords replied, denying the allegations of ownership in the appellant, and tenancy, and alleged affirmatively title in themselves under a tax deed issued by the treasurer of Spokane county, March 17, 1902. The condemnation proceedings were tried out, and an award of $1,200 made by the jury, and judgment entered appropriating the lots to the terminal company upon payment of the award. The issues raised by the appellant's answer and the reply of the Stanfords were not tried at that time, and the judgment entered in the condemnation proceedings provided, among other things, that it appearing that there was a contest between the defendants concerning the title to said premises and to the right to the money awarded, the amount of the judgment when paid should be retained in the registry of the court until the determination of the rights of the respective defendants to the indemnity proceedings. The award was paid into the court. The issues between the respondents Stanford and wife and the appellant came on for hearing, and, upon such hearing, judgment was entered holding that the title to the lots at the time of the condemnation was in the Stanfords and that the appellant had no interest therein, and ordering that the money deposited in the court by the terminal company be paid to the Stanfords. From this judgment the appeal is taken. the issues relate solely to the title to the lots condemned. The case was tried without a jury and no findings of fact or conclusions of law were made or filed. The assignments are (1) that the court erred in failing to find the respondents L. P. Stanford and wife were tenants of the appellant's predecessor in interest; (2) the court erred in refusing to hold that the re spondents L. P. Stanford and wife were precluded by their relation as tenants from acquiring a tax title to the lots in controversy; (3) the court erred in admitting in evidence, over the appellant's objection, the treasurer's deed; (4) the court erred in refusing to hold the tax deed void; (5) the court erred in holding that it appeared that the respondents were the owners of the lots condemned and entitled to the award paid in the condemnation proceedings. It is contended by the appellant that a tenant cannot acquire the demised property as against the landlord at a tax sale, and that a tenant who has entered or held possession of the premises under the landlord cannot, at least without surrendering possession, be heard to dispute the landlord's title, and many cases are cited to sustain this contention. This question, in our judgment, might be disposed of by the statement that a perusal of the record satisfies us that the court was warranted in refusing to find that the respondents were tenants of Stocker, the appellant's grantor, though we do not wish to impliedly hold that the rule that a tenant shall not be allowed to dispute the title of his landlord reaches beyond the particular title under which he enters into possession, or that he may not receive a tax title where he is under no obligation to pay the taxes on the land which becomes delinquent. The deed from the county to the respondent L. I'. Stocker was offered in evidence over appellant's objection, and the ruling of the court on this is alleged as error. The deed, which is in evidence as respondents' Exhibit A, is dated March 27, 1902, and contains the following recital by the maker: "Given under my hand and seal of office this 17th day of March, A. D. 1902." There is thereon the impression of a seal purporting to be the official seal of the county treasurer. Section 103 of the revenue act of 1897 (Laws 1897, p. 184, c. 71) as amended by section 18 of the act of 1899 (Laws 1899, p. 299, c. 141), provided for the sale of lands by the treasurer for the enforcement of the lien of delinquent taxes, and provided for the issuance of a deed as follows: "The county treasurer shall execute to the purchaser of any piece or parcel of land a tax deed. The deed so made by the county treasurer, under the official seal of his office, shall be recorded in the same manner as other conveyances of real estate, and shall vest in the grantee his heirs and assigns, the title to the property," etc. And section 114 (page 190) provided as follows: "Deeds executed by the county treasurer as aforesaid shall be prima facie evidence in all controversies and suits in relation to the right of the purchaser, his heirs and assigns, to the real estate thereby conveyed, of the following facts," etc. The contention of the appellant is that the law not having prescribed any official seal for the county treasurer, no official seal could therefore be attached by the county treasurer; that the deed, not having complied with the mandatory requirements of the law, is therefore void; that it not being such a deed as is required by the statute, it was not prima facie evidence, and that its admission in evidence was error. This construction of the law is suggested largely by the Nebraska cases, initiated in Sutton v. Stone, 4 Neb. 319, cited by appellant, and which rule was followed in many subsequent Nebraska cases. But the rule laid down in the Nebraska cases, we think, stands substantially alone in the adjudications in the United States. The United States cases cited to sustain this doctrine simply, as is their uniform custom, sustained the construction placed upon state statutes by state courts. In the case at bar the Legislature, after making a provision that the deed should be made under the official seal of the treasurer's office, failed to provide any official seal; so that there is no violation of the law by the treasurer or omission of any of the mandatory provisions of the statutemandatory in the sense of being harmonious and capable of being performed. Either it was the intention of the Legislature that the treasurer should establish or make an official seal and use it (and if that was the intention, then the law was complied with in this case), or there was an inadvertence and omission on the part of the Legislature in not providing the seal which it had in mind. we will not impute to the Legislature the intention to provide for the issuance of so important an instrument as a tax deed with the deliberate intention of so framing the law that the deed could not be executed at all. For We think that "under the official seal of his office" must be construed as surplusage, not having any relation to or connection with any other provision made in the act, and that it is not a mandatory requirement. The mandatory requirement is that the county treasurer shall execute to the purchaser a tax deed, and that such deed shall be recorded as other conveyances of real estate. The Mississippi case cited by appellant (Day v. Day, 59 Miss. 318) does not sustain its contention. There the statute provided that the auditor should affix his official seal, and that he had an official seal which he could affix is shown by the language of the court, viz., "The auditor has an official seal, and it should have been affixed to the conveyance." Even in Nebraska the doctrine contended for by appellant has been repudiated in later cases. In Orcutt v. Polsley, 59 Neb. 575, 81 N. W. 616, the court, in passing on this same contention, said: "It is true that section 491c of the Code of Civil Procedure does require the county clerk, the clerk of the district court, the county treasurer," etc., "to certify under their hands and official seals," etc. "It will be noted that some of the officers named in the statute are required |