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yet, in this case, brought after the decision in that case, the plaintiff and sole surviving executor of the estate seeks to set aside that conveyance. The plaintiff, in his personal capacity, joined in the execution of that conveyance. Under the facts alleged, the money was advanced to the trustees, and not to Charles Sprague or to his credit. The trus tees were in equity bound to repay the money, and were authorized under the law to sell the property to repay the money. The sale was absolute at the end of three years, and was therefore more than a mortgage, because it transferred the whole title. We think that the complaint fails to state facts sufficient to constitute a cause of action.

The judgment of the lower court was right, and is affirmed.

ROOT, CROW, DUNBAR, HADLEY, FULLERTON, and RUDKIN, JJ., concur.

(45 Wash. 12)

BARRETT v. BANNER SHINGLE CO. (Supreme Court of Washington. Dec. 14, 1906.) 1. MASTER AND SERVANT-INJURIES TO SERVANT-QUESTIONS FOR JURY-NEGLIGENCE OF

MASTER.

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

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1001, 10101015.]

2. SAME-CONTRIBUTORY NEGLIGENCE.

In an action for an injury to plaintiff while employed by defendant, held that it was for the jury to determine whether, considering plaintiff's youth and inexperience and lack of instruction as to signals, he had reasonable ground to understand that he was called to go into the passageway where he was injured.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1098-1105.] 3. SAME-RELIANCE ON MASTER'S CARE.

Where a servant while in the course of his employment was called on to go through a passageway, or received such signals as warranted him in going into such way, he had a right to suppose that the way was reasonably safe and free from obstructions, which would require careful examination.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 547, 675, 724.] 4. SAME-INSTRUCTING SERVANT.

Where a passageway in the employer's mill was obstructed and dangerous, it was his duty to make the place reasonably safe or to warn his servant of the existing danger, and the same duty devolved on the master if the servant was in the passageway as the result of the master's neglect to properly instruct him as where his duties would call him, and as to the meaning of signals which he was expected to observe.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 297, 299.] 5. SAME-ACTIONS-EVIDENCE-CUSTOM.

Where a servant was injured while performing his duties and while going through a passageway in defendant's mill, evidence of a custom which prevailed in the mill which excluded all persons from the passageway was inadmissible where the servant at the time of the injury was acting under the direction of de

fendant's vice principal, and it was not shown that he had any knowledge of such custom. 6. APPEAL-HARMLESS ERROR-ADMISSION OF EVIDENCE-INSTRUCTIONS.

In an action by a servant for injuries while in defendant's employ, testimony was admitted as to changed conditions subsequent to the action to the effect that débris was cleared away from the projecting beams which caused the injury. 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 defendant, but that they should consider it simply for the purpose of explaining the testimony given in relation to the premises and machinery, the witness having testified as to the appearance of the beams soon after the accident when the débris was there. Held, that the admission of such testimony was not prejudicial to defendant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3. Appeal and Error, §§ 4153, 4180, 4182.] Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

Action by Ernest L. Barrett against the Banner Shingle Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

G. M. Emory, for appellant. Fairchild & Bruce and Bellinger, Ronald, Battle & Tennant, for respondent.

The

HADLEY, J. This is an action to recover damages for personal injuries received in a shingle mill. The plaintiff is a minor, who maintains his suit through a guardian ad litem, and he was about 16 years of age when the accident happened which caused his injury. He was employed to work as a shingle packer in the defendant's mill. only experience he had had in shingle packing before entering upon this employment was during a part of one day, when he had done some packing in the same mill some time before. He began work under this employment at 7 o'clock in the morning, and was injured at 10 o'clock the same day. It was a part of his duty to assist the shingle sawyer of the machine for which he was packing in changing the saws. He was not instructed before going to work as to the details of his duty in that matter, and was not informed as to what signals he should observe, and was not told when his duties would cease when called to assist the sawyer. The sawyer beckoned to him to come from the packing room to the latter's assistance, and he responded. He was instructed to hold a pulley so that the saw shafting would not turn while the sawyer changed the saw. He complied with his instructions, and the sawyer changed and adjusted the saw. The sawyer gave a signal to the plaintiff, which the latter understood to mean for him to go to the sawyer, who stood a few feet away, at the opposite end of the frame work which supported the shaft and saw. The sawyer says he intended the signal as an indication to plaintiff that his assistance at that place was no longer needed. The sawyer is not certain whether the signal given was a ned

or motion of the head or a motion of the hand, but he thinks it was the latter. Understanding the signal to mean that he should go to the sawyer, the plaintiff started to go through a passageway between the saw frame and a table upon which shingle bolts were piled. Projecting from the saw frame on the floor were certain beams which formed a part of the support of the frame. These beams were 6 by 6 in size, and extended out into the passageway a distance of 9 inches; the passageway itself being about 18 inches wide. The beams were, at the time at least, partially covered with shavings, sawdust, and mill débris. The plaintiff had not before had occasion to go through the passageway, and did not know the beams were there. As he went through the passageway, he stumbled over the beams, and, in attempting to support himself, his left hand was thrown out in such a manner that it was caught by a saw and cut off near the wrist. We think the above facts are practically conceded in this court. There is at least testimony in support of them. The cause was submitted to a jury, and a verdict was returned for the plaintiff in the sum of $3,000. Judgment was entered for the amount, and defendant has appealed.

A number of assignments of error involve the same question that was presented upon the motion for nonsuit, viz., that respondent failed to produce proof tending to show that appellant was guilty of any breach of duty toward respondent. We think it should not be said as a matter of law that such proof was lacking, but that it was rather for the jury to say, under the circumstances, whether appellant neglected its duty. IIere was a young, inexperienced lad, who was set to work without instructions with reference to any duty to assist the sawyer in changing the saws. In the rush and hurry of the operation of the mill he was called from his regular work to assist the sawyer. He was not advised what signals would be used for his guidance. The sawyer was in command of that work, and respondent was under his direction. It is argued that the sawyer did not signal respondent to go where he did, and that he went there without any direction from appellant or its representative. He was, however, while the saw was being changed, under the immediate direction of the sawyer as the master's representative, and it became a question for the jury to determine whether, considering his youth and inexperience and lack of instructions as to signals and as to his full duty at that place. he had a reasonable right to understand that he was called to go where he did. The nonsuit was therefore properly denied, and kindred assignments of error are not well taken for the same reason.

It is argued in support of several assignments of error that in this case the defenses of assumption of the risk and contributory negligence are so nearly allied as to be prac

tically indistinguishable, and it is claimed that the conditions which resulted in respondent's injury were apparent and known to him. It is said that he could have seen the projecting timbers over which he stumbled if he had looked, and that he knew the location and purposes of the shingle and clipper saws, which he had seen used. It is iusisted that, in attempting to obey what he erroneously thought was an order, he walked straight ahead, without looking to see whether he was apt to trip over the projecting beams. These questions were all for the jury. If the jury found, as they must have done, that respondent had reasonable ground to interpret the signal as he did, then he was placed in the position of one who was called to go through the passageway which contained dangers which the evidence shows were, at least in a measure, hidden. In such event he had a right to suppose that the way was reasonably safe and free from obstructions which would require careful examination as he went hurriedly to the discharge of his supposed duty. Respondent's counsel aptly observed in the brief that, under such circumstances, the most ordinary faith in humanity would lead the emploré to believe that the master had made the way safe for his use. If by the master's direction respondent was in the passageway, it became its duty to make the place reasonably safe, or to warn him of the existing danger. O'Brien v. Page Lumber Company, 39 Wash. 537, 82 Pac. 114. The same duty devolved upon the master if respondent was in the passageway as the result of appellant's neglect to properly instruct him as to where his duties would call him, and as to the meaning of signals which he was expected to observe. Whether such was true was for the jury, and not for the court, to determine.

It is assigned that the court erred in refusing to permit appellant to prove that it was the custom in the mill for the sawyer to exclude all persons from the narrow space between the bolt table and the saw frame; that the sawyer was permitted customarily to place the bolt table to suit his own convenience; and that it was neither the duty of the packer, nor was it customary for him, to come within the space between the bolt table and the saw frame. We think it was immaterial what custom prevailed in the above particulars, since respondent was acting under the direction of the sawyer as a vice principal. It was not shown, and no offer was made to show, that respondent had knowledge of such a custom, and even if he had such knowledge he was still subject to the direction of the master or its representative, and it was his duty to observe directions as he had fair and reasonable ground to understand them in connection with what he understood to be his duty, if in doing sothe way was not obviously dangerous.

It is complained that the court erred in 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 had testified as to the appearance and situation of the projecting beams 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 charge of the court was elaborate and extensive, and it seems to us that it covered overy phase of the case within our views above expressed. We think appellant was not prejudiced either by instructions given or by the refusal to give any instructions as requested.

We find no reversible error, and the judg ment is affirmed.

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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

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

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence. § 2378.]

5. TRIAL-RECEPTION OF EVIDENCE-REBUT

TAL.

Where defendant, in an action for personal injuries, 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. APPEAL-HARMLESS ERROR-REJECTION OF TESTIMONY-SUBSEQUENT ADMISSION.

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

TIONS.

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

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

9. SAME INSTRUCTIONS SUBSEQUENT CARE BY PLAINTIFF.

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 inust alone be the judge. But when he has determined 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 would 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 circumstances, and was not objectionable as holding plaintiff responsible for the results of his physician's treatment.

10. APPEAL-HARMLESS 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, because it was not pertinent to the issues in the case.

Appeal from Superior Court, Whatcom County: Jeremiah Neterer, Judge.

Action by Claude O. 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 appeal 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 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 company 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. second question propounded does not present the question which the appellant seeks to raise in this court. The question assumeć 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 before us.

The

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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 ordinary witness or juror, and should have been permitted to answer. Certainly the ordinary juror is not qualified to determine whether any given test will disclose the presence or absence of curvature of the spine without the aid of expert or opinion evidence. Nor is there any merit in the claim that the testimony was not proper in rebuttal. While the witness had already testified that the appellant had curvature of the spine, stating fully the reasons for his conclusion, yet he was asked nothing concerning the tests afterwards applied by the respondents' witnesses, and the appellant could not be and was not required to anticipate the tests that might be resorted to. Here, again, the respondents contend that the error was without prejudice, because the witness afterwards answered the questions, but with this contention we cannot agree. The only question which the witness was permitted to answer was the following: "Q. I will ask you what, if anything, the marking that has been made upon the back of the plaintiff along the line of the spinal column would show if the right shoulder was left in the natural position it has assumed." This question does not cover the subject-matter of the interrogatories to which objections were sustained.

The next error assigned is in the giving of the following instruction: "It is not enough for the plaintiff to show that he may possibly sustain any certain items of damage, but in order to recover he must prove to a reasonable certainty that he will in reasonable probability sustain damages. And in determining in this connection, you are instructed that the proof adduced by the plaintiff in regard to such impairment of his earning capacity must be clear and convincing, and you are not entitled to indulge in speculation or surmise in arriving at the amount of such impairment in his earning capacity, if you find such." The only exception that could possibly refer to this instruction is in the following language: "Plaintiff wishes to except to your honor's instructions as to the measure of damages." Several instructions of the court referred directly and indirectly to the measure of damages, and the above exception is wholly insufficient to raise any question for review in this court. But, in view of the fact that a new trial must be granted on other grounds, we deem it proper to say that the instruction taken by itself is not a correct statement of the law. The first part of the charge is correct, but it was only incumbent on the appellant to prove these facts by a preponderance of the evidence, and there is a vast difference between clear and convincing proof and a mere preponderance. The former expression in used in those cases where a mere preponderance of the evidence does not satisfy the requirements of the law. Barnes v. Packwood, 10 Wash. 50, 38 Pac. 857.

The next error assigned is in giving the

following instruction: "In arriving at the amount of his damages, you are to say, not only what they are, but 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 determined 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 would take to cure himself of his injury, or to reduce the extent thereof under the same circumstances. 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 to reduce the damages, and you must take that into consideration in arriving at your verdict, and you fix the standard as to what a reasonably prudent man would do under such circumstances." This instruction is not open to the criticism urged against it. It does not, as contended by counsel, hold the appellant responsible for the results of his physician's treatment. It simply exacts of him that degree of care which a reasonably prudent man would exercise under the same circumstances, and such we believe to be the duty imposed by law.

The next error assigned is in the giving of the following instruction: "You are further instructed in this case that, if from the evidence you find that the physician who was first called to attend the plaintiff after his injury was present in court during the trial of the cause, and was not called by the plaintiff, you may take this fact into consideration; but in doing that you must also take into consideration the relations between the physician and the defendant, as to whether he was the acting physician on the part of the defendant or not, and whether, under all of the circumstances disclosed, as you shall find from the testimony, the plaintiff should have under such circumstances called the attending physician. In considering this matter you should take into consideration all of the facts as disclosed from the testimony and the surrounding circumstances." The respondents contend that this instruction was not excepted to, and was not prejudicial to the appellant, inasmuch as it appears from the testimony that Dr. Axtell could give no evidence favorable to the appellant on the question of curvature of the spine (which was substantially the only issue in the case), because the symptoms did not appear until several days after Dr. Axtell attended him. the instruction was not pertinent to the facts in the case it should not have been given, and we will not discuss the general principle of law involved in this part of the charge. Oth

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