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yet, in this case, brought after the decision in fendant's vice principal, and it was not shown

that he had any knowledge of such custom. that case, the plaintiff and sole surviving ex

6. APPEAL-HARMLESS ERROR-ADMISSION OF ecutor of the estate seeks to set aside that con

EVIDENCE-INSTRUCTIONS. veyance. The plaintiff, in his personal capac

In an action by a servant for injuries ity, joined in the execution of that convey while in defendant's employ, testimony was adance. Under the facts alleged, the money mitted as to changed conditions subsequent to

the action to the effect that débris was cleared was advanced to the trustees, and not to

away from the projecting beams which caused Charles Sprague or to his credit. The trus

the injury. The court at the time instructed the tees were in equity bound to repay the money, jury that they could not consider the evidence and were authorized under the law to sell for the purpose of finding negligence on the

part of defendant, but that they should consider the property to repay the money. The sale

it simply for the purpose of explaining the testiwas absolute at the end of three years, and mony given in relation to the premises and mawas therefore more than a mortgage, because chinery, the witness having testified as to the it transferred the whole title. We think that appearance of the beams soon after the accident

when the débris was there. Held, that the adthe complaint fails to state facts sufficient mission of such testimony was not prejudicial to constitute a cause of action.

to defendant. The judgment of the lower court was right, [Ed. Note.--For cases in point, see Cent. Dig. and is affirmed.

vol. 3, Appeal and Error, $$ 4153, 4180, 4182.]

Appeal from Superior Court, Whatcom ROOT, CROW, DUNBAR, HADLEY, FUL- County; Jeremiah Neterer, Judge. LERTON, and RUDKIN, JJ., concur.

Action by Ernest L. Barrett against the Banner Shingle Company, a corporation.

From a judgment for plaintiff, defendant (15 Wash. 12)

appeals. Affirmed. BARRETT v. BANNER SHINGLE CO.

G. M. Emory, for appellant. Fairchild & (Supreme Court of Washington. Dec. 14, 1906.)

Bruce and Bellinger, Ronald, Battle & Ten1. MASTER AND SERVANT-INJURIES TO SERVANT-QUESTIONS FOR JURY-NEGLIGENCE OF

nant, for respondent. MASTER.

In an action for an injury to plaintiff while HADLEY, J. This is an action to recover in defendant's service, held that defendant's negligence was a question for the jury.

damages for personal injuries received in a [Ed. Note.-For cases in point, see Cent. Dig.

shingle mill. The plaintiff is a minor, who vol. 34, Master and Servant, $$ 1001, 1010

maintains his suit through a guardian ad 1015.]

litem, and he was about 16 years of age ... SAME-CONTRIBUTORY NEGLIGENCE.

when the accident happened which caused his In an action for an injury to plaintiff while injury. He was employed to work as a employed by defendant, hcid that it was for the jury to determine whether, considering plain

shingle packer in the defendant's mill. The tiff's youth and inexperience and lack of in

only experience he had had in shingle packstruction as to signals, he had reasonable ing before entering upon this employment ground to understand that he was called to go

was during a part of one day, when he had into the passageway where he was injured. [Ed. Note.For cases in point, see Cent. Dig.

done some packing in the same mill some vol. 34, Master and Servant, $$ 1098-1105.]

time before. He began work under this em3. SAME-RELIANCE ON MASTER'S CARE.

ployment at 7 o'clock in the morning, and Where a servant while in the course of his was injured at 10 o'clock the same day. It employment was called on to go through a pas was a part of his duty to assist the shingle sageway, or received such signals as warranted

sawyer of the machine for which he was him in going into such way, he had a right to suppose that the way was reasonably safe and

packing in changing the saws. He was not free from obstructions, which would require instructed before going to work as to the decareful examination.

tails of his duty in that matter, and was not [Ed. Note.-For cases in point, see Cent. Dig. informed as to what signals he should obvol. 34, Master and Servant, 88 547, 675, 724.]

serve, and was not told when his duties 4. SAME-INSTRUCTING SERVANT.

would cease when called to assist the sawyer. Where a passageway in the employer's mill was obstructed and dangerous, it was his duty

The sawyer beckoned to him to come from to make the place reasonably safe or to warn the packing room to the latter's assistance, his servant of the existing danger, and the same and he responded. He was instructed to luty devolved on the master if the servant was in the passageway as the result of the mas

hold a pulley so that the saw shafting would ter's neglect to properly instruct him as to

not turn while the sawyer changed the saw. where his duties would call him, and as to the He complied with his instructions, and the meaning of signals which he was expected to

sawyer changed and adjusted the saw. The observe.

sawyer gave a signal to the plaintiff, which [Ed. Note.--For cases in point, see Cent. Dig.

the latter understood to mean for him to go vol. 34, Master and Servant, &$ 297, 299.]

to the sawyer, who stood a few feet away, 5. SAME-ACTIONS-EVIDENCE-CUSTOM. Where a servant was injured while per

at the opposite end of the frame work which forming his duties and while going through a supported the shaft and saw. The sawyer passageway in defendant's mill, evidence of a says he intended the signal as an indication custom which prevailed in the mill which excluded all persons from the passageway was

to plaintiff that his assistance at that place inadmissible where the servant at the time of

was no longer needed. The sawyer is not the injury was acting under the direction of de certain whether the signal given was anal

or motion of the head or a motion of the tically indistinguishable, and it is claimed band, but he thinks it was the latter. Under that the conditions which resulted in restanding the signal to mean that he should spondent's injury were apparent and known go to the sawyer, the plaintiff started to go to him. It is said that he could have seen through a passageway between the saw frame the projerting timbers over which he stunand a table upon which shingle bolts were | bled if he had looked, and that he knew the piled. Projecting from the saw frame on location and purposes of the shingle and clipthe floor were certain beans which formed per saws, which he hall seen lisel. It is iua part of the support of the frame. These sisted that, in attempting to obey what he beams were 6 by 6 in size, and extended out erroneously thought was an order, he walked into the passageway a distance of 9 inches; straight ahead, without looking to see wheththe passageway itself being about 18 inches er he was apt to trip over the projecting wide. The beams were, at the time at least, beams. These questions were all for the partially covered with shavings, Sawdust, jury. If the jury found, as they must have and mill débris. The plaintiff had not be done, that respondent had reasonable ground fore had occasion to go through the pas to interpret the signal as he did, then he was sageway, and did not know the beams were placed in the position of one who was called there. As he went through the passageway, to go through the passageway which conhe stumbled over the beams, and, in attempt tained dangers which the evidence shows ing to support himself, his left hand was were, at least in a measure, hidden. In such thrown out in such a manner that it was event he had a right to suppose that the way caught by a saw and cut off near the wrist. was reasonably safe and free from obstrucWe think the above facts are practically tions which would require careful examinaconceded in this court. There is at least tion as he went hurriedly to the discharge of testimony in support of them. The cause his .

supposed duty. Respondent's counsel was submitted to a jury, and a verdict was | aptly observed in the brief that. under such returned for the plaintiff in the sum of $3,000. circumstances, the most ordinary faith in Judgment was entered for the amount, and humanity would lead the employé to believe defendant has appealed.

that the master had made the way safe for A number of assignments of error involve his use. If by the master's direction rethe same question that was presented upon spondent was in the passageway, it became the motion for nonsuit, viz., that respondent its duty to make the place reasonably safe, failed to produce proof tending to show that or to warn him of the existing danger. appellant was guilty of any breach of duty O'Brien v. Page Lumber Company, 39 Wash. toward respondent. We think it should not 537, 82 Pac. 114. The same duty devolved be said as a matter of law that such proof upon the master if respondent was in the was lacking, but that it was rather for the passageway as the result of appellant's neyjury to say, under the circumstances, wheth lect to properly instruct him as to where liis er appellant neglected its duty. Ilere was a duties would call him, and as to the meanyoung, inexperienced lad, who was set to ing of signals which he was expected to obwork without instructions with reference to serve. Whether such was true was for the any duty to assist the sawyer in changing the jury, and not for the court, to determine. saws. In the rush and hurry of the opera It is assigned that the court erred in retion of the mill he was called from his regu fusing to permit appellant to prove that it lar work to assist the sawyer. Ile was not was the custom in the mill for the sawyer advised what signals would be used for his to exclude all persons from the narrow space guidance. The sawyer was in command of between the bolt table and the saw frame; that work, and respondent was under his that the sawyer was permitted customarily direction. It is argued that the sawyer did to place the bolt table to suit his own connot signal respondent to go where he did, venience; and that it was neither the duty and that he went there without any direction of the packer', nor was it (ustomary for him, from appellant or its representative. He to come within the space between the bolt was, however, while the saw was being table and the saw frame. We think it was changed, under the immediate direction of immaterial what custom prevailed in the the sawyer as the master's representative, above particulars, since respondent was actand it became a question for the jury to ing under the direction of the sawyer as a determine whether, considering his youth and vice principal. It was not shown, and no inexperience and lack of instructions as to offer was made to show, that respondent lad signals and as to his full duty at that place, knowledge of such a custom, and even if he he had a reasonable right to understand that had such knowledge he was still subject to he was called to go where he did. The non the direction of the master or its representasuit was therefore properly denied, and kin tive, and it was his duty to observe direcdred assignments of error are not well taken tions as he had fair and reasonable ground for the same reason.

to understand them in connection with what It is argued in support of several assign he understood to be his duty, if in doing so ments of error that in this case the defenses the way was not obviously dangerous. of assumption of the risk and contributory It is complained that the court erred in negligence are so nearly allied as to be prac- | permitting testimony as to changed con

ditions subsequent to the accident, to the effect that the débris was cleared away from the projecting beams. The court at the time instructed the jury that they could not consider the evidence for the purpose of finding negligence on the part of appellant, but that they should consider it simply for the purpose of explaining the testimony given in relation to the machine. We think appellant was not prejudiced. The witness hail testificct is to the appearance and situation of the projecting be:ums soon after the accident, when the débris was there, and he was testifying as to the appearance after the débris had been removed. The purpose of it was to show that he could better describe the conditions from his second examination, and it is not disputed that the beams remained in the same position. We think from the instruction given by the court the jury must have understood that they could not consider the subsequent removal of the débris as any acknowledgment of negligence on the part of the appellant.

Complaint is made of the instructions and of the refusal to instruct as requested. The (harge of the court was elaborate and extensive, and it seems to us that it covered very pulse of the use within our vi IT'S above expressed. We think appellant was not preju:liceul either by instructions given or by the refusal to give any instructions as requested.

We find no reversible error, and the judgment is affirmed.

to inquire of an expert witness as to whether the tests applied were fair or proper.

[19. Vote.--For cases in point, see Cent. Dig. vol. 21:, Evidence, $ 2378.] 5. TRIAL-RECEPTION OF EVIDENCE-REBUTTAL.

Where defendant, in an action for personal injuriis, applied certain tests to determine whether plaintiff had curvature of the spine, it was proper for plaintiff, in rebuttal, to inquire of an expert witness whether the tests so applied were fair or proper. 6. APPEN.-ILARMLESS ERROR-REJECTION OF TESTIMONY-SUBSEQUENT ADMISSION.

In an action for personal injuries, defendant applied certain tests to letermine whether plaintiff had (urvature of the spine, and the court improperly rejected testimony on the part of the plaintiff as to whether the tests applied wore fair or proper. But the witness was permitted to answer a question is to "whai, if anything, the marking that has been made upon the back of the plaintili along the line of the spinal column would show if the right shoulder was left in the natural position it has assumed. Il cld, that this question did not cover the subject-matter of the interrogatories excluded. 7. SAME--EXCEPTIONS--SUFFICIENCY-INSTRUCTION!!,

Where several instructions of the court referred directly and indirertly to the measure of damages, an exception in the following language: "Plaintiff wishes to excrpt to your honor's instructions as to the measure of damages ”—was insuflicient to raise any question for review. 8. DALAGES--EVIDENCE-DEGREE OF PROOF.

In an action for personal injuries, the proof adduced by plaintiff in regard to the impairment of his warning capacity need not be clear and convincing, plaintiff being required to prove such fart by a preponderance of the evidence

only.

MOUNT, C. J., and RUDKIN, FULLERTOX, and CROW, JJ., (oncur. DUNBAR and ROOT, JJ.. not sitting.

114 Wash. 658)
ROWE v. WIATCOM COUNTY RY. &

LIGIIT CO. et al. (Supreme Court of Washington. Dec. 10, 1906.) 1. APPEAL-ILARMLESS ERROR-REJECTION OF TESTIMONY-SUBSEQUENT ADMISSION.

The exclusion of a question to a witness was harmless, where substantially the same fact sought to be elicited was brought out by subse. quent questions.

[Ed. Note.-T'or cases in point, see Cent. Dig. vol. 3, Appeal and Error, SS 4200 4201.] 2. EVIDENCE – EXAMINATION OF EXPERTS CROSS-EXAMINATION.

Where, prior to the trial of a personal injury suit, the court appointed physicians to make physical examination of plaintiff at the request of defendant, it was proper to exclude testimony on cross-examination of one of such physicians as to whether he had been paid by defendant for making the examination. 3. SAME.

In an action for personal injuries, a question propounded to defendant's expert witness, assuming that witness had testified for de endant in other cases, and inquiring what he was paid for so doing, was irrelevant and immaterial. 4. SAME-EXPERT TESTIMONY-SUBJECT.

In an action for personal injuries, where defendant's expert witnesses had applied certain tests upon the question as to whether plaintiff had curvature of the spine, plaintiff was entitled

9. SANE - INSTRUCTIONS -- SUBSEQUENT CARE BY PLAINTIFI.

In an action for personal injuries, the court instructed that, in arriving at the amount of plaintiff's damages, the jury were to determine "whether the means used by the plaintiff to reduce the damages were such as an ordinarily prudent man would use. You cannot say that he should or should not have obtained any particular kind of treatment. As to that, he must alone be the judge. But when he has determine what treatment to take, it will be for you to say if, in making that determination, he used the means that a reasonably prudent man woull take to cure himself. * * * If you find that he did not, and you can say that some other treatment would have brought about a cure or reduced the amount of his damages, and that that treatment was one that a reasonably prudent man would have adopted, then you must say that he has not used the care which a reasonably prudent man would use. * Held, that such instruction simply exacted of plaintiff that degree of care which a reasonably prudent man would exercise under the circunstances, and was not objectionable as holding plaintiff responsible for the results of his physician's treatment. 10. APPEAL-IIARMLESS ERROR-INSTRUCTIONS.

In an action for personal injuries resulting from defendant's negligence, an instruction that if the jury should find that the physician who was called to attend plaintiff after his injury was present in court during the trial of the cause, and was not called by plaintiff, they might take such fact into consideration, cannot be said to have been harmless, becarise it was not pertinent to the issues in the case. Appeal from Superior Court,

Superior Court, Whatcom County : Jeremiah Neterer, Judge.

Action by Claude 0. Rowe against the

Whatcom County Railway & Light Company, a corporation, and others. From a judgment for plaintiff for a part only of his demand, he appeals. Reversed.

E. J. Grover and J. C. Allen, for appellant. Newman & Howard, for respondents.

RUDKIN, J. This was an action to recover damages for personal injuries resulting from a collision between two street cars operated by the defendant Whatcom County Railway & Light Company. The defendants Walker and Ives were the motormen of the two colliding cars. The plaintiff was awarded a judgment in the sum of $300, and prosecutes an appeak therefrom to this court, assigning numerous errors in the exclusion of testimony, and in the giving of instructions in support of his appeal. The liability of the respondent company was admitted, so that the only issues in the case were as to the nature and extent of the appellant's injuries, and the amount of damages he sustained. While the appellant claimed damages for a great many injuries in his complaint, the principal issue at the trial was whether he had curvature of the spine as a result of the other injuries received. Prior to the trial, the court appointed three physicians to make a physical examination of the appellant, at the request of the respondents. These physicians were called as witnesses by the respondents, and the first error assigned is in the ruling of the court sustaining an objection to the following question propounded to Dr. Birney on crossexamination: "Q. I will ask you, doctor, whether or not it would be possible from the injury to the chest and the injury that has been testified about in this case to the back, whether or not the shock that would necessarily result from such injuries would ever produce a curvature?",

The respondents contend, first, that the objection was properly sustained, because the question assumed facts not in evidence; and, second, that the error, if error, was harmless, because the witness was afterwards permitted to answer the question. We think this latter contention must be sustained, as the following questions and answers will indicate: "Q. I will ask you if from the injury to the plaintiff's hip and the pains in the back and the injury to the chest that has been testified about in this case, which might result in a weakening of the muscles, whether or not from those causes curvature could and probably would result, under proper circumstances? A. If it did, the evidence would be forthcoming in the plaintiff's case now. Q. Well, what evidence? A. He would be apt to have atrophy of his muscles, his muscles would be atrophied, or he would have some contraction or ankylosis. Q. Where? A. In the region where he was hurt. Q. Do you say that there are no such evidences in this case? A. I found none." While the two questions are not identical in every respect, yet the answer given is a full and complete

answer to both questions. The second error assigned is in the ruling of the court sustaining objections to the following questions propounded to Dr. Kirkpatrick, one of the physicians appointed by the court, in the course of his cross-examination: "Q. You have been paid by the defendant street railway company for making this examination ? Q. How much does the street railway conpany pay you for testifying in these cases, Doctor, over and above the regular lawful fees provided by law?” While the witness was appointed by the court, he became a witness at the instance of the respondents, and they were obligated to pay, not only his fees as a witness, but reasonable compensation for making the physical examination of the appellant. The fact that the witness had been paid for his services at the time of the trial was immaterial and irrelevant. The second question propounded does not present the question which the appellant seeks to raise in this court. The question assumed that the witness had testified for the respondent company in other cases, and inquired what he was paid for so doing. That question was irrelevant and immaterial in this trial, and whether it would have been competent to inquire what the witness was paid in the case on trial we will not decide, as no such question is presented in the record be. fore us.

The next error assigned is in the ruling of the court sustaining objections to the following questions propounded to Dr. Keyes, a witness called by the appellant in rebuttal: "Q. I will ask you to state to the jury whether or not that is a proper test to be applied to this plaintiff in this case, taking into consideration his physical condition and all the other questions that have been suggested concerning his confinement to the house, the fact that he has only been upon his feet a portion of the time? Q. I will ask you to tell the jury whether or not the test just made, of laying the plaintiff on his abdomen on the . table, in the manner in which it has just been done by Dr. Birney and the other gentlemen assisting him, was a fair test in this case upon the question of curvature that is under consideration before this jury? Q. Dr. Keyes, I will ask you to tell the jury in this case whether or not the laying of the plaintiff upon the table upon his abdomen and face, pushing the left shoulder down, pulling the right shoulder up, for the purpose of changing the position of the spine, if possible, by getting the shoulders as nearly square as it was possible to have them placed in that position, whether that is a fair test upon the question of curvature as presented to the jury in this case.” The reason assigned by the court for its ruling was that the question whether the tests applied by the witnesses for the respondents were fair or proper was for the jury. In this the court erred. The witness was asked his opinion on a matter involving scientific and technical

knowledge, not within the experience of the following instruction: "In arriving at the ordinary witness or juror, and should have amount of his damages, you are to say, not been permitted to answer. Certainly the only what they are, but whether the means ordinary juror is not qualified to determine used by the plaintiff to reduce the damages whether any given test will disclose the pres were such as an ordinarily prudent man ence or absence of curvature of the spine would use. You cannot say that he should without the aid of expert or opinion evidence. or should not have obtained any particular Nor is there any merit in the claim that the kind of treatment. As to that, he must alone testimony was not proper in rebuttal. While be the judge. But when he has determined the witness had already testified that the ap what treatment to take, it will be for you to pellant had curvature of the spine, stating say if in making that determination he used fully the reasons for his conclusion, yet he the means that a reasonably prudent man was asked nothing concerning the tests after would take to cure himself of his injury, or wards applied by the respondents' witnesses, to reduce the extent thereof under the same and the appellant could not be and was not circumstances. If you find that he did not, required to anticipate the tests that might be and you can say that some other treatment resorted to. Here, again, the respondents would have brought about a cure or reduced contend that the error was without prejudice, the amount of his damages, and that that because the witness afterwards answered the treatment was one that a reasonably prudent Miestions, but with this contention we cannot man would have adopted, then you must say agree. The only question which the witness that he has not used the care which a reasonwas permitted to answer was the following: ably prudent man would use to reduce the "Q. I will ask you what, if anything, the damages, and you must take that into conmarking that has been made upon the back sideration in arriving at your verdict, and of the plaintiff along the line of the spinal you fix the standard as to what a reasonably column would show if the right shoulder was prudent man would do under such circumleft in the natural position it has assumed.” stances.” This instruction is not open to the This question does not cover the subject-inat criticism urged against it. It does not, as ter of the interrogatories to which objections contended by counsel, hold the appellant reWere sustained.

sponsible for the results of his physician's The next error assigned is in the giving of treatment. It simply exacts of him that dethe following instruction: "It is not enough gree of care which a reasonably prudent man for the plaintiff to show that he may possibly would exercise under the same circumstances, sustain any certain items of damage, but in

and such we believe to be the duty imposed order to recover he must prove to a reason by law. able certainty that he will in reasonable prob The next error assigned is in the giving of ability sustain damages. And in determining the following instruction: “You are further in this connection, you are instructed that instructed in this case that, if from the evithe proof adduced by the plaintiff in regard dence you find that the physician who was to such impairment of his earning capacity first called to attend the plaintiff after his must be clear and convincing, and you are injury was present in court during the trial not entitled to indulge in speculation or sur of the cause, and was not called by the plainmise in arriving at the amount of such im tiff, you may take this fact into considerapairment in his earning capacity, if you find tion; but in doing that you must also take such." The only exception that could pos

into consideration the relations between the sibly refer to this instruction is in the follow physician and the defendant, as to whether ing language: "Plaintiff wishes to except to he was the acting physician on the part of your honor's instructions as to the measure the defendant or not, and whether, under all of damages.” Several instructions of the of the circumstances disclosed, as you shall (ourt referred directly and indirectly to the find from the testimony, the plaintiff should measure of damages, and the above exception

have under such circumstances called the atis wholly insufficient to raise any question for tending physician. In considering this matter review in this court. But, in view of the fact you should take into consideration all of the that a new trial must be granted on other facts as disclosed from the testimony and the grounds, we deem it proper to say that the surrounding circumstances.” The respondinstruction taken by itself is not a correct ents contend that this instruction was not statement of the law. The first part of the excepted to, and was not prejudicial to the charge is correct, but it was only incumbent appellant, inasmuch as it appears from the on the appellant to prove these facts by a testimony that Dr. Axtell could give no evipreponderance of the evidence, and there is a dence favorable to the appellant on the quesvast difference between clear and convincing tion of curvature of the spine (which was proof and a mere preponderance. The for substantially the only issue in the case), bemer expression in used in those cases where cause the symptoms did not appear until seva mere preponderance of the evidence does eral days after Dr. Axtell attended him. If not satisfy the requirements of the law. the instruction was not pertinent to the facts Barnes v. Packwood, 10 Wash. 50, 38 Pac. in the case it should not have been giver, and 8.77.

we will not discuss the general principle of The next error assigned is in giving the law involved in this part of the charge. Oth

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