urged and their evident importance to appellant, have impelled us to give as briefly as possible the reasons why we are unable to accede to the arguments advanced. The essence of appellant's contention is that the condition of the crown sheet, bolts, and flues after the explosion shows conclusively as a scientific fact that the explosion could not have been due to any other cause than low water. Appellant introduced the testimony of over a dozen boiler makers, master mechanics, boiler inspectors, and others, all of whom stated positively that the conditions after the explosion conclusively showed low water as the cause. We do not agree, however, that this testimony established undisputed scientific facts. The evidence at best was of a negative character, and the statements of the witnesses were their opinions drawn from their previous experiences. Because they had never known the conditions shown here to occur except from a low-water explosion, they concluded that they could not result otherwise. On behalf of the respondent, one Hanson, fireman on the engine when the explosion occurred, testified positively that the water glass showed sufficient water on the crown sheet to prevent an explosion. An effort was made to impeach this testimony by introducing a statement prepared by the attorneys for appellant and acknowledged as correct by Hanson while he was in the hospital after the explosion. Hanson denied any knowledge of this statement, claiming that he was unconscious for days after the explosion, and had made no such statements at any time. The credibility of his testimony was clearly for the jury. We have, then, the evidence of the only witness who was in a position to know positively whether there was water in the boiler, to the effect that the water glass indicated sufficient to prevent a low-water explosion. Opposed to this is the testimony of a large number of capable experts that the explosion could have been due only to low water. Under such conditions, it was clearly competent for the jury to determine that the testimony of Hanson was entitled to greater weight than that of appellant's witnesses. We conclude that on this ground appellant was not entitled to judgment, and that the denial of a new trial was not an abuse of discretion. use of fusible plugs as a means of preventing explosions and as to the presence or absence of scale on the crown sheet. The reliability of respondent's witnesses and the sufficiency and consistency of their testimony are all questions which the verdict precludes us from reviewing. [4] The most serious contention aside from the questions of evidence just discussed, is a claim that a new trial should be allowed because of misconduct of respondent's counsel in questioning appellant's witness Dowling, superintendent of safety for the Great Northern, concerning the report of the federal inspector on this accident. The use of these reports or any part thereof "for any purpose in any suit or action for damages growing out of any matter mentioned in said report or investigation" is, by statute (Act Feb. 17, 1911, c. 103, § 8, 36 Stat. 916 [U. S. Comp. St. 1913, § 8637]) made unlawful. During the cross-examination of the witness, counsel, for respondent asked him whether he considered the government inspectors were wrong in their conclusions, if their report on the accident stated that certain conditions found after the explosion could not have resulted from a low-water explosion. After the examination had proceeded for some time and the witness had had several features of the report stated to him and had been asked his opinion as to the worth of the conclusions, appellant's counsel objected to the line of cross-examination, but did not base the objection on the inadmissibility of the report. Respondent's counsel was stopped, whereupon he attempted to put the report in evidence. The offer was refused. Under the federal law the report was absolutely inadmissible, but we do not believe that appellant is in a position to complain of the conduct of respondent's counsel in asking the witness about the report. In his opening statement appellant's counsel stated to the jury: "We will show that whenever an accident of this kind happens it is reported to the United and reports printed and published, and the data States governinent and an inspection is made is available so that the plaintiffs can have access to it and produce it if they so desire, as correct." The Respondent was justified in construing this as a challenge to produce the report. fact that the error, if any, was thus invited by appellant, and his failure to object on the ground of the inadmissibility of the report until the harm, if any, had been done, force us to the conclusion that appellant cannot now complain that he was prejudiced by the action of respondent. Appellant contends that, even if it be found that the evidence of low water was a question for the jury, nevertheless the evidence did not show any negligence on the part of the appellant. Coupled with this contention is an attack on the character of respondent's expert testimony. The contention is not [5] The verdict awarded respondent $8,500. made that there was a total lack of evidence | Appellant now contends that this amount is of negligence, and there being some evidence excessive and conclusive proof that it was that the button head bolts have a tendency influenced by passion and prejudice. At the to become overheated by an oil flame and al-time of his death the deceased was earning low the crown sheet to give, which would about $175 per month. He was living with result in an explosion, it was for the jury to his mother and furnishing $75 per month or say whether their use under such circum- more to maintain the home kept for him by stances was negligence. Likewise, as to the her. He had expressed his intention of not marrying as long as his mother lived. The income from this verdict well invested would not enable the respondent to live in better circumstances than those to which she was accustomed during her son's life, and, in view of her possible greater needs during her declining years, we do not find the verdict excessive. As one of the grounds for a new trial, appellant introduced affidavits to the effect that respondent had previously supported herself and had other means of support. We do not find, however, that there was an abuse of discretion in denying a new trial on these grounds. Department 2. Appeal from Superior Court, King County; J. T. Ronald, Judge. Action by Thomas Anderson against the Puget Sound Traction, Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed. Jas. B. Howe and A. J. Falknor, both of Seattle, for appellant. E. L. Skeel and W. M. Whitney, both of Seattle, for respondent. MORRIS, C. J. Action for personal injuries growing out of a collision between one of appellant's cars and an auto truck driven by respondent. The cause was tried to the [6] Appellant contends that the instruc- court without a jury, resulting in a judgment tion that an agreement by ten jurors would for plaintiff, from which this appeal is taken. be sufficient is in violation of the seventh The place of the accident was at the inamendment to the Constitution of the United | tersection of Terry avenue and Howell street, States, which has been generally construed in the city of Seattle. It is clear from the to contemplate a trial by twelve jurors. It is, however, well settled that this amendment does not apply to the states, and that the verdict in an action in the state court under the federal Employers' Liability Act is controlled, not by the provision of the national Constitution, but by the laws of the state where the suit is pending. The authorities are collated and the rule well stated in Roberts, Injuries to Interstate Employés, p. 312, § 176. Several other grounds of error are urged in the request for a new trial. These have all been considered without convincing us that there is error warranting a new trial of this case. The judgment is therefore affirmed. On Rehearing. PER CURIAM. Appellant has filed a petition for a rehearing, which, after due consideration, is denied. Our attention, however, is called to a stipulation entered into in connection with a motion to strike respondent's brief because of failure to file in time, and because of which the case was not heard here until the May, 1915, term. The stipulation provides that, if the judgment be affirmed, the interest accruing during the period of continuance might be eliminated from the judgment in case the court should determine such a condition a proper one in denying the motion to strike the brief. This stipulation was overlooked in writing the opinion, although we had it in mind in reaching our conclusion, and intended to give effect to it. Not having done so in the opinion, we do so now. The opinion is modified to this extent: The judg ment will not bear interest from March 1, 1915, to June 17, 1915. In all other respects the judgment will stand. testimony that, when respondent first attempted to cross the street car tracks, there was ample room and time for him to do so before the car would reach the crossing. This fact was assumed by both the motorman and respondent, and each acted accordingly. Just as respondent drove upon the track he was confronted with a new situation caused by another auto truck going west turning in front of him in an attempt to pass a slowgoing milk wagon going in the same direction. Respondent would have passed in front of this milk wagon had it not been for the approach of the other truck, or had the truck remained behind the milk wagon in the relative position it was when first observed by respondent. The sudden change, of course, of this auto truck prevented respondent from continuing his passage across the tracks, and in order to avoid a collision with it he stopped his auto with its front wheels resting on the south rail of the inbound car track, in which position the car hit him. The evidence supports the theory of the lower court that, had the motorman been alive to this changed situation, necessitating a change in action, he could have prevented the collision, and, not having done so, negligence was established. We find nothing in the case to establish appellant's theory of contributory negligence. The judgment is affirmed. HOLCOMB, MAIN, PARKER, and ELLIS, JJ., concur. REMSNIDER v. UNION SAVINGS & (Supreme Court of Washington. Jan. 5, 1916.) SHOP. A janitor in an office building was injured while scrubbing down the walls and floors of the elevator shaft beneath the cage. The eleThe Workvator was operated by electricity. men's Compensation Act (3 Rem. & Bal. Code, § 6604-1 et seq.) provides, in section 2, that the act shall apply to all inherently hazardous employments, including factories, mills, and workshops where machinery is used. Section 3 defines a workshop as a room or place wherein power-driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise. Held that. though the elevator was operated by electricity, the shaft could not be considered a workshop, and the janitor's rights were not governed by the statute. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Workshop.] 2. MASTER AND SERVANT 872, New, vol. 16 Key-No. Series-INJURIES TO SERVANTWORKMEN'S COMPENSATION ACT. Where neither the work of a janitor in an office building nor employment about an elevator shaft had been classified as extrahazardous by the Industrial Insurance Department as authorized by Workmen's Compensation Act, § 2, an injury to a person engaged in such employment is not governed by the statute. 3. DAMAGES 132-PERSONAL INJURIES-AC TIONS EVIDENCE. In view of the conflict in medical testimony as to the permanency of the injuries of a servant 54 years of age, whose injuries consisted of paralysis of one leg and internal injuries, held, that an award of $5,000 could not be determined excessive. [Ed. Note. For other cases, see Damages, Cent. Dig. $$ 372-385, 396; Dec. Dig. 132.] fore had no jurisdiction of the action. It is argued that the elevator shaft wherein was operated an elevator driven by electricity, and wherein the respondent was working when injured, was such a place as to make the respondent's work extrahazardous within the meaning of sections 2 and 3 of the act, in that it was a "room or place wherein power-driven machinery was employed." The appellant relies upon our decision in Wendt V. Industrial Insurance Commission, 80 Wash. 111, 141 Pac. 311, as decisive of this point. In that case the deceased was a carpenter regularly employed as such by a corporation operating a large department store. His duties comprised making shelving, display standards, repairs, additions, alterations, and the like about the store. The company maintained a repair shop primarily for the repairing of its delivery wagons and automobiles. In this shop, besides a carpenter bench and carpenter's tools, there were a power lathe, an emery wheel, a grindstone, drills, etc., operated by electricity. The deceased met his death through receiving an electric current while turning on a switch to put in motion the grindstone for the purpose of sharpening a chisel. After a careful analysis of the statute, we held, in substance, that the company conducted, as a depart Department 1. Appeal from Superior Court, King County; J. T. Ronald, Judge. Action by A. Remsnider against the Union Savings & Trust Company. From a judgment of its business, this shop which was ment for plaintiff, defendant appeals. Affirmed. Farrell, Kane & Stratton, of Seattle, for appellant. Clem J. Whittemore and Peters & Powell, all of Seattle, for respondent. ELLIS, J. Action to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant as its janitor. The defendant is the owner of an office building known as the Hoge Building in the city of Seattle. In the building are maintained and operated three elevators or lifts. The plaintiff, as janitor, was directed by the superintendent or head janitor to go into the elevator shaft beneath the elevator cage and scrub down the walls and doors. While he was so employed the elevator was run down into the shaft, crushing him between the board across the shaft on which he was reclining and the bottom of the cage. At the trial defendant's negligence was conceded. The only contested issue of fact was as to the extent and character of the injuries sustained by the plaintiff. The jury returned a verdict in favor of the plaintiff for $5,000. From the judgment thereon the defendant appeals. extrahazardous within the enumeration of section 2 of the act, being a "workshop" as defined in section 3: A "*** room or place wherein powerdriven machinery is employed and manual labor is exercised by way of trade for gain or otherwise in or incidental to the process of making, altering, repairing, printing or ornamenting, finishing or adapting for sale or otherwise any article or part of article, machine or thing, over which premises, room or place the employ er of the person working therein has the right of access or control." Our decision was based upon the plain fact that the shop there in question met the definition of a workshop, and that the deceased met his death in attempting to operate the power-driven machinery in connection with his regular employment, that of "carpenter work," which is in section 4 of the act specifically classified as among the extrahazardous works contemplated by the act. The distinction between the Wendt Case and the case before us seems clear. If an elevator shaft in an oflice building is, as appellant argues, a “room or place wherein power-driven machinery is employed," so as to fall within the meaning of the workman's compensation act, then it is such because the elevator shaft is a workshop, since the language quoted is employed in section 3 of the act as defining the word "workshop" as used in the [1, 2] The appellant's first claim is that the enumeration of extrahazardous works found respondent, while engaged in cleaning the in section 2. The act does not say, nor does elevator shaft, was a "workman" engaged in it imply, that every place in which power"extrahazardous work" within the meaning driven machinery is employed impresses an of the Workmen's Compensation Act (chapter extrahazardous character on work performed 74, Laws of 1911, p. 345; 3 Rem. & Bal. Code, in such place. It merely employs the cir§ 6604-1 et seq.), and that the court there- cumstance of the presence of power-driven For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The record sufficiently presents two questions which we shall consider in their logical order. On a careful reconsideration of the whole question, we are satisfied that the Guerrieri Case was correctly decided and is controlling on the facts here. machinery in connection with a number of other things in defining a workshop. If the presence of power-driven machinery is the sole determining factor, then every shaft in which is operated a power-driven elevator or [3] The other contention is that the verdict lift is a workshop. Then, also, the operator is excessive. The injury was mainly to the of the elevator and every employé of the ap-sciatic nerve, resulting in a partial paralysis pellant who in the course of his duties had occasion to enter the elevator to pass from one floor to another would be employed, for the time being, in a room or place wherein power-driven machinery is employed, hence in a workshop, and in an extrahazardous work. Though the respondent was injured in a place where power-driven machinery was employed, it cannot by the widest stretch of the meaning of the statute be termed a workshop. Though his regular employment was at times fraught with hazard, as are all employments, it was not one, which, to use the language of section 2 of the act, has "come to be, and to be recognized as being inherently and constantly dangerous." Neither was it connected with any of the occupations enumerated as extrahazardous in section 2, nor is it mentioned in any of the schedules in section 3 or in any of the classifications in section 4. Section 2 of the act closes with the provision that: of the right leg and foot. There was also a small hernia and an injury to the kidneys, causing a passage of blood. All of these conditions persisted at the time of the trial nine months after the injury, the last, however, only to a slight extent. The leg was still swollen and of a bluish color. The respondent was still on crutches. He is nervous and suffers from insomnia. He is 54 years old, but had always been strong and well prior to the injury. As to the man's condition at the time of the trial, the testimony presents a sharp conflict. Of five physicians who had examined him a short time prior to the trial, two intimated a belief that he was malingering and were of the opinion that the injury to the leg was not permanent. Three were strong in the opinion that his suffering was real, and two were of the positive opinion that the injury to the leg was permanent. The third expressed doubt as to whether the full use of the leg would ever be restored. Upon this conflict of evidence the question "If there be or arise any extrahazardous oc- of the permanency of the injury was one for cupation or work other than those hereinabove the jury, as was also the amount of the damenumerated, it shall come under this act, and its rate of contribution to the accident fund ages. The award is large, but the evidence hereinafter established, shall be, until fixed gives us no warrant to interfere with the by legislation, determined by the department verdict. To do so would be a wanton invahereinafter created, upon the basis of the rela- sion of the province of the jury tion which the risk involved bears to the risks classified in section 4." But neither the work of a janitor in an office building nor working in or about an elevator shaft has yet been classified by the department as extrahazardous, nor has any rate of contribution been fixed as provided in the clause quoted. The judgment is affirmed. MORRIS, C. J., and CHADWICK, MOUNT, and FULLERTON, JJ., concur. STUIT et ux. v. UNITED STATES FIDEL- AUTOMOBILE INSURANCE. In the recent case of Guerrieri v. Industrial Insurance Commission, 84 Wash. 266, 146 Pac. 608, after another careful analysis of the statute, we held that one who was employed in operating a passenger or freight elevator or lift in a mercantile establishment In an action on a policy of automobile inwas not engaged in an extrahazardous emsurance which excepted damages caused by ployment within the meaning of the statute. striking any portion of the roadbed and all loss That decision by plain inference is contrary or damage caused by upset of the injured mato the appellant's contention here. Respond-chine, unless such upset is a direct result of a ent was not engaged in an extrahazardous work within the meaning of the act. Though section 2 points out that "there is a hazard in all employments," it provides statutory compensation only for injuries received in employments recognized as "inherently and constantly dangerous" and which it enumerates as extrahazardous. As we said in the Guerrieri Case: "The manifest intent of the law is not to cover and compensate for accidents generally, but to cover accidents occurring in those employments or occupations which are specifically classed as, or which may be found by the commission to be, extrahazardous." collision, evidence held to show that the ma- Department 1. Appeal from Superior Action by H. C. Stuht and wife against the United States Fidelity & Guaranty Company. From a judgment for plaintiffs, defendant appeals. Reversed, and cause ordered dis missed. Shepard, Burkheimer & Burkheimer, of Seattle, for appellant. Vince H. Faben, of Seattle, for respondents. MOUNT, J. This is an action upon a policy of automobile insurance. The complaint, after setting out the terms of the policy, alleged that on August 9, 1913, the insured automobile was wrecked and destroyed through a collision between the automobile and the wooden planking constituting a por tion of the sluice box at the side of the roadway and projecting into the highway, and by striking and colliding with a tree near the roadway, and striking violently the ground near the roadway then being traveled by the machine, to the damage of the plaintiff in the sum of $1,000. The amended answer of the defendant admitted the issuance of the policy, but denied all the other allegations of the complaint, and alleged two affirmative defenses, which it will not be necessary to notice. The case was tried to the court and a jury. At the conclusion of the plaintiff's evidence, the defendant moved the court for a directed verdict, and again made the same motion at the close of all the evidence. Finally, after a verdict was returned by the jury, a motion was made for judgment notwithstanding the verdict. These motions were all denied, and a judgment was entered upon the verdict. The defendant has appealed. We are satisfied that these motions should have been granted. The policy sued upon insures the plaintiffs against damage to his automobile "if caused solely by collision with another object, either moving or stationary (excluding, however, all loss or damage by fire from any cause whatsoever; all loss or damage caused by striking any portion of the roadbed, or by striking street or steam railway rails or ties; and all loss or damage caused by the upset of the injured automobile unless such upset is a direct result of such a collision as is covered hereby)." The evidence for the plaintiff shows that the automobile in question had been taken to a repair shop to have some repairs made thereon. After the repairs had been made, the mechanician took the automobile and started to deliver it to the owner. He testified that he did not go directly to the garage of the owner, but went in a roundabout way, intending first to go to his home, and from thence to take the car to the owner. He was the only witness who testified for the plaintiff as to the manner of the damage to the car. He testified upon that question as follows: in front of me, and I turned in close to the curb The witness testified that the bank at that point was steeper than 45 degrees; that * teenth avenue just a little ways, * I He then goes on to explain the damage to the car. It is not claimed by the respondent that this sluice box was in the street, or even in the sidewalk strip. The testimony shows that it was to the side of the sidewalk strip lying on the side of the hill, and projecting above the level of the street about a foot. It seems too plain for discussion that this car was being driven down the hill at a rapid rate of speed, when the driver attempted to make the short turn to the right onto Fourteenth street, and on the brink of the hill the car upset and went over the hill. It was plainly a case where the car upset before it "In the month of August. It was between 7 struck anything outside of the road. If the and 8 o'clock some time; it was after the sun, evidence of this witness is not clear upon I think, was down. Well, anyhow, it must have this point, the evidence of the defendant's been along about that time; I don't remember witnesses shows very clearly and beyond disexactly. Well I was going west, or east, I should say, on Norman street; this was pute that the sluice box in question was lying between-I passed Thirteenth avenue; from on the side of the hill, and not in the roadThirteenth it is quite a little steep grade down way. The marks upon the sluice box to to Fourteenth. Fourteenth is the end of Norman street; it ends there. I think about the which the plaintiff's witness referred were middle of the block some one crossed the street some distance down the hill, and showed * |