reasonable worth, but it did its full duty to the appellants when it gave them notice that the goods were subject to their order on the payment of the charges advanced. The respondent was not, as the appellants argue, attempting to rescind a contract. There was no contract. The pleadings and proofs are to the effect that the writing called a contract was obtained from it by fraud. It therefore furnished no basis whatever from which to determine the appellants' rights. The respondent owed to them the duty concerning the goods that fair dealing between man and man required, and this was fully complied with when it repacked the goods, and gave them a reasonable time to repay the charges it had been wrongfully induced to pay thereon, and take the goods away.

The instructions requested were properly refused by the court as inapplicable to the issues. They were based on the assumption that a contract had been entered into, and that the respondent was seeking to set it aside. But, as we have said, this was not the issue before the jury. The issue was one of fraud in procuring the respondent's signature to a purported contract, and this was the question the jury were to determine. If they found it adverse to the respondent, the appellants were entitled to recover, as no other defense was interposed. The court fully and fairly charged the jury to this effect, and in doing so it performed its entire duty in that regard.

We find no error in the rulings of the court in admitting and rejecting evidence. There was substantial evidence also to sustain the verdict of the jury, and their finding is conclusive in this court as to the facts.

The judgment should be affirmed, and it is so ordered.

HADLEY, C. J., and CROW, ROOT, MOUNT, RUDKIN, and DUNBAR, JJ., concur.

(49 Wash, 405)

WOELFLEN v. LEWISTON-CLARKSTON

CO. et al.

(Supreme Court of Washington. April 29,

1908.)

DISMISSAL

GROUNDS-DEFECTS

1. APPEAL IN PROCEEDINGS-APPEAL BOND. Under 2 Ballinger's Ann. Codes & St. §§ 5081, 5082 (Pierce's Code, §§ 720, 721), relating to the parties for or against whom judgment may be given, and judgments against one or more of defendants in the court's discretion, sections 6500-6506 (sections 1049-1054), relating to proceedings on appeal, when allowed, notice on appeal, appeal bonds, etc., and section 6521 (section 1069), relating to the power of the Supreme Court in disposing of cases on appeal, that there are two appeals, one from the final judgment, and one from the order denying a new trial, with only one bond given on the appeal from the final judgment; that the appeal bond did not run to a defendant below as to whom the action was dismissed and who did not appeal; that the bond, being conditioned both as an appeal and supersedeas, was not sufficient in amount to cover interest on the judgment from

date of entry; that the stay bond did not cover costs allowed a defendant below, as to whom the action was dismissed, and who did not appeal; that the attorney who had appeared for such defendant and appellants below accepted service of notice of appeal for it-were not, separately or taken together, grounds for the dismissal of the appeal.

2. SAME STATEMENT OF FACTS - NOTICE TO ADVERSE PARTY-DEFENDANT AS TO WHOM ACTION WAS DISMISSED.

Under 2 Ballinger's Ann. Codes & St. § 5058 (Pierce's Code, § 675), requiring a party desiring to have a statement of facts certified to file it and serve a copy thereof on the adverse party, and serve written notice of the filing thereof on any other party who has appeared in the cause, it was unnecessary that notice of a motion for an order of extension of the time of filing a statement of facts be served on a defendant below as to whom the action was dismissed, or that the proposed statement of facts be served on such defendant, it not being an adverse party to appellants, its codefendants below, within the statute.

3. MASTER AND SERVANT-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE-DUTY TO

DISCOVER DANGER.

Plaintiff, a general foreman of defendant electric company, was directed to raise a piece of electric apparatus, and climbed upon the joists of a building to fix the pulleys and ropes thereto, knowing that three highly charged electric wires ran along the joists, but not knowing that two smaller wires ran from them through the roof, the latter being known as "lightning arresters," which were commonly found in all power houses, which fact plaintiff knew. The room being dark, plaintiff inadvertently came in contact with the smaller wires, and was injured. Held that, even if the room was too dark to permit plaintiff to see the wires, it was his duty to defendant, as foreman in charge of the work, to see that the room was sufficiently lighted, or to make inquiries or an examination, as to the location of the wires, and his failure to do so was, under the circumstances, gross negligence so as to preclude recovery.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 710-722.] 4. SAME-VICE PRINCIPALS-DUTIES.

While the master must provide a reasonably safe working place for his servants, where the master is a corporation, this duty must be performed by others, who become vice principals, and where a master, whether a corporation or otherwise, authorizes its superintendent to supervise work, it becomes the latter's duty to perform those duties which the law imposes upon the master.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 422-488.]

5. SAME PLACE OF WORK-DUTY TO DISCOVER DANGER.

A servant cannot recover for injuries received because of the dangerous condition of a working place, where such condition was well known to him, or where it was his duty to ascertain the condition of the place, which he neg lected to do.

[Ed. Note. For cases in point, see Cent. Dig vol. 34, Master and Servant, §§ 706-709.]

Appeal from Superior Court, Asotin County; C. F. Miller, Judge.

Action by Charles A. Woelflen against the Lewiston Water & Power Company and others. From a judgment for plaintiff, two of defendants appeal. Reversed and remanded, with instructions to dismiss..

Sturdevant & Bailey and I. N. Smith, for appellants. Elmer E. Halsey and Ben F. Tweedy, for respondent.

ROOT, J. This is an appeal from a judgment in favor of the plaintiff in an action brought to recover damages for personal injuries sustained in the power house owned by the Lewiston Light Company, and operated by the Lewiston Water & Power Company, in Asotin county, Wash. Said appeal is prosecuted by the latter company and the Lewiston-Clarkston Company, which was incorporated subsequent to the time of plaintiff's injury, and which it is claimed took over the property of the other two companies subject to all liabilities.

Respondent has interposed a motion to dismiss the appeal, upon the following grounds, to wit: (1) That there are two appeals, one from the final judgment, and one from the order denying a new trial; with only one bond given on the appeal from the final judgment. (2) That the only obligee mentioned in the bond is respondent Woelflen, whereas the bond should run to him and to the Lewiston Light Company, as to which the action was dismissed in the trial court and which did not join in the appeal. (3) That the bond, being conditioned both as an appeal and supersedeas, is insufficient in amount, inasmuch as it is not in an amount large enough to cover interest on the judgment from date of entry. (4) That, as costs were allowed to the Lewiston Light Company upon dismissal of the action as to it, these costs must be taken into consideration and covered by the stay bond. (5) That the Lewiston Light Company was, after the dismissal of the action as to it, an adverse party to these appellants, and that the attorneys who had appeared for it and the appellants had no right to accept service of notice of appeal for that company. We do not think the motion can be sustained upon any or all of the grounds assigned. 2 Ballinger's Ann. Codes & St. §§ 5081, 5082, 6500-6506, 6521 (Pierce's Code, §§ 720, 721, 1049-1054, 1069); Edgecomb v. Creditors, 19 Nev. 149, 7 Pac. 533; Williams v. Dennison, 86 Cal. 430, 25 Pac. 244; Nolan v. M. C. R. R. Co., 24 Mont. 327, 61 Pac. 880; Paland v. C., St. L. & N. O. R. Co., 42 La. Ann. 290, 7 South. 899; Oleson v. Wilson, 20 Mont. 544, 52 Pac. 372, 63 Am. St. Rep. 639; Berghoff v. McDonald, 87 Ind. 549; Westland Pub. Co. v. Royal, 36 Wash. 399, 78 Pac. 1096; Douglas v. Badger State Mine, 43 Wash. 715, 86 Pac. 858; Doremus v. Root, 23 Wash. 710, 63 Pac. 572, 54 L. R. A. 649. The motion to dismiss is overruled.

Respondent also moves to strike the statement of facts. This motion is based upon the ground that an order of extension of time for filing was made upon a motion no notice of which was served upon the Lewiston Light Company, and that the proposed statement was not served upon that company. Respondent contends that this company was an "adverse party," as contemplated in section 5058, Ballinger's Ann. Codes & St. (Pierce's Code, § 675). We are unable to agree with this contention. We perceive no reason

for its being considered an adverse party to the appellants or either of them, and no reason for requiring the statement to be served upon it, or notice to or service upon it, of any motion concerning the statement of facts or anything else having to do therewith. Doremus v. Root, supra. The motion to strike the statement of facts is denied.

The plaintiff was employed as superintendent or general foreman in charge of the company's outside work, such as erecting poles and stringing wires. In view of the conclusion which we have reached, it will be necessary to refer to only one of the defendants, the Lewiston Water & Power Company, which we will speak of as "the company." In the power house were three transformers, each five feet high and four feet square, composed of a case built of corrugated iron, resting in a frame made of angle iron, and in each case there was a "core," a receptacle containing a coil of wires immersed in oil for insulating and cooling purposes. The three transformers were located close together. In the operation of the plant, the transformer farthest to the south burned out. The manager of the company telephoned from Lewiston, directing plaintiff to take such assistance as he needed to the power house and lift the core out of this transformer so that the electrician could repair it. The manager sent a large block and tackle, weighing about five hundred pounds, consisting of pulleys and chains, for the purpose of doing this work. The plaintiff was an experienced electrician or worker about electrical plants and appliances, having been in that work for 17 years, during several of which he was superintendent of a plant in Wisconsin, and later having assisted in putting together the transformers for this defendant company at Lewiston, Idaho. After being directed as aforesaid by the manager to take the core out of this transformer, he took men for that purpose and was assisted by others whom he found at the power house. The work was undertaken under his direction and supervision. Overhead at the place where the ceiling would naturally be, there were joists running across the building, and upon these were some boards making a floor or platform over the transformer. The plaintiff went up to this position after having braced the joists, or caused them to be braced and supported, so that the weight could be lifted by attaching the block and tackle to the joists. To the latter a small block and tackle were fastened with which it was intended to haul up the large chain block which was to be used in raising the heavy core. A noose was made in the rope which was to be caught in an iron hook of block and tackle. In order to hook them together, plaintiff climbed down from the platform where he had been standing, to a cross-arm which projected toward the center of the room from the southeast corner of the power house and about four or five feet below the ceiling joist. Upon this

each carrying 10,000 volts of electricity. That they were there and so charged with électricity was known to the plaintiff at that time, as he admits in his evidence. All of the transformers had been "killed down," as the expression is used by the electricians, meaning that the current of electricity had been cut off from them. This work was being done in the evening, the room being somewhat lighted by certain small lights but principally by a 2,000-candle power arc light, which is about the size and character of the ordinary street light. The room was in size about 25 by 50 feet. When plaintiff jumped down from the cross-arm, he stood with one foot on one side and one on the other of one of these highly charged electric wires. Connected with these were two small wires leading up to and through the roof. These uprising wires are commonly called "risers" or "lighting arresters," and are commonly found in all power houses. Plaintiff testified that he never knew of a power house without them. While plaintiff was attempting to connect the noose of the rope with the hook aforementioned, he received an electric shock, and was seriously injured. At the time, he did not know how he received this shock. On the witness stand he said, however, that he now knew that his hand came in contact with one of these risers. He testified that he did not know of the presence of these lightning arresters, had never been told of their being there, and that he did not see them because it was too dark to permit of their being seen, Other witnesses who were working there under his direction at the time testified that they saw the wires, and that they were plainly visible.

It is urged by plaintiff that the company was guilty of negligence in sending him without warning into a place that was dangerous by reason of the presence of these two wires unknown to him. The appellants urge, first, that there were several ways by which this work could have been done, any one of which would have been a perfectly safe method, but that plaintiff neglected to choose or follow a safe plan, but voluntarily chose a dangerous one. They say that a perfectly safe method would have been to have moved the transformer out from under these highly charged electric wires and to have lifted out the core at a place where there would have been no occasion to come near any of the wires. There was some evidence going to show that this method was suggested to the plaintiff. It is also urged by the appellants that the physical conditions, as well as the great preponderance of evidence, show that there was sufficient light to have seen these two perpendicular wires, and that it was carelessness and recklessness on the part of the plaintiff to have come in contact with either of them. They also urge that there was no occasion for plaintiff to leave the

he would be in close contact with dangerous wires. It will not be necessary for us to pass upon these questions. For another reason, we believe that the evidence of the plaintiff himself must defeat his recovery. Assuming that the place where plaintiff went was too dark to permit of his seeing these two wires, we think that the going of an experienced electrical workman into a dark place of this kind, where he knew there were several highly dangerous wires and might be others, was in itself a grossly negligent act. He was not directed as to the particular manner or place in which he should do the work. He was sent there in charge of the work, and had supervision of all the men who were assisting to accomplish it. He was not only in duty bound to exercise ordinary care to protect himself, but he likewise owed a duty both to his employer and to the men working under him to use ordinary care in choosing and carrying out the methods of doing the work. To illustrate: Suppose, on account of the darkness of the place, he had received a shock and fallen upon one of the workmen, or dropped something, injuring the latter. Doubtless the injured workman would have had a cause of action against the company. Such workman could have al leged that plaintiff, as vice principal of the company, owed a duty to inspect the premises and not to go into a dark place where he knew, or might have known by reasonable inquiry or inspection, that there were dangerous electrical wires which might cause him to fall or drop some of the tools or appliances on one of the workmen below. Plaintiff being in charge of the work and not being limited by his orders as to the matter of light and the methods of handling the apparatus necessary, it was his duty first of all to see that the premises were in a réasonably safe condition for the doing of the work. Knowing, as he says he did, of the presence of the three large, heavily charged wires, and knowing that power houses were usually equipped with risers or lightning arresters, and without any reason to suppose that this power house was an exception to the rule, it was incumbent upon him to either secure sufficient light to reveal the true condition of the surroundings of this crossbeam before he climbed down upon it, or to make inquiries or an examination of some kind by which the presence of dangerous wires would have been known to him. Had he been working under the immediate direction of a superior officer, without any knowledge of the situation, and had obeyed an order to get upon this beam, relying upon the duty of the master to have the place safe, a very different question would be presented. It is undoubtedly the duty of the master to use ordinary care to provide a reasonably safe working place for his servant. Where the master is a corporation this duty must

be performed by it through certain persons who become, by reason of the duty thus imposed upon them, vice principals of the master, and it is upon these vice principals that the company, as such master, relies for information and for the proper preparation and care necessary to have the premises in the safe condition required by law. When the master, whether a natural person or a corporation, authorizes one of its superintendents to take charge of and supervise and carry out a certain undertaking in connection with its industrial operations, it becomes the duty of that servant to perform as and for the master those duties which the law places upon the latter. In this instance the plaintiff, being the superintendent in control of this undertaking, was charged with the duties just mentioned; and in failing to provide a sufficient amount of light or to have it properly adjusted or to in some other manner ascertain the dangerous conditions of the working place, he clearly neglected his duty to his employer. Plaintiff claims that he was not familiar with the interior arrangements of the power house; that although he had been working for the company for some years, he had not on an average been in the power house more than two or three times a month. He testified, however, that the foreman or engineer in charge of the power house was working with him and under his directions at the time of the accident, and there is no reason shown why he may not have learned from such assistant all about the conditions of the wires had he desired so to do; and no reason is given for not adjusting the lights so that all the wires in that vicinity could have been distinctly seen.

It is well settled that a servant cannot recover because of the dangerous condition of a working place, when such condition is as obvious or well known to him as to the master, or by the exercise of reasonable care by him would have been, or where it was the duty of the servant to ascertain as to the dangerous condition of the place, which duty he has neglected. In the case of French v. First Avenue Ry. Co., 24 Wash. 83, 63 Pac. 1108, an engineer, recently placed in charge of a street railway power house having a large amount of machinery, was killed, and one of the reasons assigned for liability was that the place was insufficiently lighted and by reason thereof he did not notice certain defects that occasioned his fall into a large wheel. This court said, "If there was not sufficient light the engineer knew it," and laid stress upon the fact that the machinery in question was under the control of the engineer himself, saying among other things: "It certainly is the duty of the engineer to observe, examine, and understand the machinery which he is operating." In that case the engineer in charge was the person injured. In the case at bar the engineer ordinarily in charge of the room was working under this

plaintiff who was in charge of the work then being done. The duty to know of the condition of the working place rested upon this plaintiff equally as much as it did upon the engineer in the case just cited.

The case of Anderson v. Inland Tel., etc., Co., 19 Wash. 575, 53 Pac. 657, 41 L. R. A. 410, was one where a lineman was injured by an electric shock received as a result of a broken insulator on a telephone pole. The opinion has a strong bearing upon the facts of the case at bar. Among other things, the court said: "Corporations of this kind act through employés. Necessarily they cannot act in any other way. An inspection of their lines and posts and insulators must be made by the employés. * * The respondent testified that he knew the power of electricity, and the danger that would be incurred by coming in contact with a live wire; that he knew that, if the insulator broke, the result would be that the wire which he touched would be charged; and he knew also that porcelain insulators frequently did break. It seems to us that this brings him within the rule which we have announced above-that when he accepted the employment, that was necessarily hazardous, he assumed this risk, which, under all the testimony, was an ordinary risk, and that he did not exercise the discretion which he ought to have exercised in testing this wire. * * While there is no gainsaying the rule that under ordinary circumstances the employé has the right to rely upon the fact that the master will furnish him a safe place to work and safe appliances, yet the law does not intend that this shall be a blind and unreasonable reliance, but that reasonable men shall exercise in a reasonable manner the faculties of which they are possessed. It seems to us it would only have been such reasonable exercise of prudence upon the part of the respondent in this case to have tested this wire before he touched it. * * In this

case it was equally within the knowledge of the master and the servant that this was a dangerous employment; and it cannot be said that there was negligence on the part of the master, and absence of rashness on the part of the servant, or that the servant used his skill, to protect himself in the course of his employment. He had sufficient skill, according to the undisputed testimony, to protect himself, and he had the apparatus at hand for testing the insulator and the wires. * We think, from an investigation of the whole case, that it appears from undisputed testimony that plaintiff did not exercise reasonable care in the investigation of the dangers which he knew were incident to his employment, and that had he exercised such care, and made the tests which reasonable prudence would have dictated, he would have had knowledge of the danger which beset him."

*

In Jones v. Moran Bros. Co. (Wash.) 88

Pac. 625, a painter aboard a ship undertook to walk through a dark compartment between decks, where there was a hatchway, into which he fell. As he knew there was a hatchway and knew that it was dark, this court held that, by going through there with out a light and at a speed so great as to cause him to stumble over the coamings of the hatch, he was negligent; such negligence on his part defeating a recovery.

In Steeples v. Panel, etc., Box Co., 33 Wash. 344, 74 Pac. 476, plaintiff fell off a platform in the dark. He claimed that he did not know it was without a railing, and was going to look for his hat which had blown off. Among other things, the court said: "When he picked up the lantern to look for his hat, instead of using the lantern, he negligently moved without bringing the lantern to bear. There were other lanterns there, all under his supervision and care, and it was his duty to prepare all the light that was necessary for the work which was being done. Consequently he cannot complain that his injury was caused by not properly lighting the platform. * * It is true the plaintiff testifies that he did not know that the platform was without a guard, but a plaintiff cannot recover simply by making a statement of that kind, if, under the circumstances, it was his duty, as a reasonably prudent man, to have made such an examination as would have resulted in the desired information."

*

26 Cyc. p. 1169, says this: "It is not necessary that the servant should be warned of every possible manner in which injury may occur to him, or of risks that are as obvious to him as to the master, or which are readily discoverable by him by the use of ordinary care, with such knowledge, experience, and judgment as he actually possesses, or as the master is justified in believing him to possess."

Thompson on Negligence, vol. 4, § 4063, says: "The master is not under any duty to warn or instruct servants who have already enjoyed an ample opportunity to become acquainted with the danger. Servants are expected to keep their eyes open, and exercise such a reasonable care for their own safety as their situation permits." See, also, McClellan v. Gerrick (Wash.) 93 Pac. 1087; Weideman v. T. R. & M. Co., 7 Wash. 517, 35 Pac. 414; Olson v. McMurray C. L. Co., 9 Wash. 502, 37 Pac. 679; Smith v. Hecla Mining Co., 38 Wash. 454, 80 Pac. 779; Bier v. Hosford, 35 Wash. 544, 77 Pac. 867; Robare v. Traction Co., 24 Wash. 577, 64 Pac. 784; Miller v. Moran Bros. Co., 39 Wash. 631, 81 Pac. 1089, 1 L. R. A. (N. S.) 283, 109 Am. St. Rep. 917; Bullivant v. City of Spokane, 14 Wash. 577, 45 Pac. 42; Ford v. Hefferman Engine Works (Wash.) 93 Pac. 417; Tham v. Steeb Shipping Co., 39 Wash. 272, 81 Pac. 711; McGirty v. S. N. E. Tel. Co., 69 Conn. 635, 38 Atl. 359, 61 Am. St. Rep. 62; Moul95 P.-32

ton v. Gage, 138 Mass. 390; Larsson v. McClure, 95 Wis. 533, 70 N. W. 662; Griffin v. O. & M. Ry. Co., 124 Ind. 326, 24 N. E. 888; Dixon v. Western U. Tel. Co. (C. C.) 68 Fed. 630; Wood, Master & Servant, §§ 328, 366; Beach, Contrib. Negligence, §§ 299, 346; 1 Bailey, Master & Servant, § 62; 20 Am. & Eng. Enc. Law, pp. 78, 96, 130, 131, 142, 149; 26 Cyc. 1169, 1171, 1188, 1202, 1236, 1241; 4 Thompson, Negligence, 88 4057, 4062, 4063, 4076, 4079.

The judgment as against these appellants is reversed, and the case remanded, with instructions to dismiss the action.

(56 Or. 126)

E. H. MOOREHOUSE & CO. v. WEIS-
TER CO.

(Supreme Court of Oregon. May 12, 1908.) APPEAL TRANSCRIPT-TIME FOR FILING. B. & C. Comp. 1901, § 549, provides that from the expiration of the time allowed to except to the surety in an undertaking on an appeal or from the justification thereof, if excepted to, the appeal shall be deemed perfected. Section 553 provides that within 30 days thereafter the appellant shall file a transcript in the Supreme Court. Held, that a justification is not completed until the examination of the surety before the clerk at a time and place specified has been had, the reduction of such examination to writing, the signing of the same by the surety when requested, and a finding that the surety is sufficient by the clerk evidenced by his indorsement on the undertaking, and hence a transcript filed within 30 days after indorsement by the clerk on the undertaking was filed in time.

Appeal from Circuit Court, Multnomah County; Thos. O'Day, Judge.

Action by E. H. Moorehouse & Co. against the Weister Company. From a judgment for plaintiff, defendant appeals. Motion to dismiss appeal. Motion dismissed.

A. King Wilson, for the motion. H. H. Riddell, opposed.

PER CURIAM. This is a motion to dismiss an appeal because the transcript was not filed within the time required by law. The notice of appeal and undertaking were served and filed on January 4, 1903. Respondent excepted to the sufficiency of the surety, and appellant thereupon gave notice that it would produce him before the clerk of the court for justification on January 11th. The surety appeared at the time stated, and was examined under oath touching his sufficiency; his examination being taken in shorthand. The respondent requested that his testimony be reduced to writing and signed by him, and the shorthand notes were subsequently extended, and on January 25th the surety appeared before the clerk, signed his testimony, and on that date the clerk found the surety sufficient, annexed the examination to the undertaking, and indorsed his allowance there