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machinery in connection with a number of On a careful reconsideration of the whole other things in defining a workshop. If the question, we are satisfied that the Guerrieri presence of power-driven machinery is the case was correctly decided and is controlling sole determining factor, then every shaft in on the facts here. 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 of the right leg and foot. There was also a occasion to enter the elevator to pass from small hernia and an injury to the kidneys, one floor to another would be employed, for causing a passage of blood. All of these the time being, in a room or place wherein conditions persisted at the time of the trial power-driven machinery is employed, hence nine months after the injury, the last, howin a workshop, and in an extrahazardous ever, only to a slight extent. The leg was still work.

swollen and of a bluish color. The respondThough the respondent was injured in aent was still on crutches. He is nervous and place where power-driven machinery was em- suffers from insomnia. He is 54 years old, ployed, it cannot by the widest stretch of the but had always been strong and well prior meaning of the statute be termed a work-i to the injury. As to the man's condition at shop. Though his regular employment was the time of the trial, the testimony presents at times fraught with hazard, as are all em- a sharp conflict. Of five physicians who had ployments, it was not one, which, to use the examined him a short time prior to the trial, language of section 2 of the act, has "come to two intimated a belief that he was malingerbe, and to be recognized as being inherently ing and were of the opinion that the injury and constantly dangerous." Neither was it to the leg was not permanent. Three were connected with any of the occupations enu-strong in the opinion that his suffering was merated as extrahazardous in section 2, nor real, and two were of the positive opinion is it mentioned in any of the schedules in that the injury to the leg was permanent. section 3 or in any of the classifications in The third expressed doubt as to whether the section 4. Section 2 of the act closes with full use of the leg would ever be restored. the provision that:

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."

The judgment is affirmed. But neither the work of a janitor in an

MORRIS, C. J., and CHADWICK, MOUNT, office building nor working in or about an

and FULLERTON, JJ., concur. 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.

In the recent case of Guerrieri v. Industri- STUIT et ux. v. UNITED STATES FIDELal Insurance Commission, 84 Wash. 266, 146 ITY & GUARANTY CO. (No. 12852.) Pac. 608, after another careful analysis of (Supreme Court of Washington. Jan: 6. 1916.) the statute, we held that one who was employed in operating a passenger or freight INSURA

freight / INSURANCE C 605—LIABILITY INSURANCE

AUTOMOBILE INSURANCE. elevator or lift in a mercantile establishment

In an action on a policy of automobile inwas not engaged in an extrahazardous em

surance 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 ma

chine, unless such upset is a direct result of a to the appellant's contention here. Respond-1

collision, evidence held to show that the maent was not engaged in an extrahazardous chine upset at the edge of a bank, when the work within the meaning of the act. Though driver was attempting to make a quick turn, section 2 points out that "there is a hazard and that the damages were the result of its in all employments," it provides statutory

falling over the bank, and not by any collision.

| [Ed. Note.-For other cases, see Insurance, compensation only for injuries received in

Cent. Dig. 88 1555, 1707-1728; Dec. Dig. Om employments recognized as "inherently and 665.) constantly dangerous" and which it enumerates as extrahazardous. As we said in the

Department 1. Appeal from Superior Guerrieri Case:

Court, King County; A. W. Frater, Judge. "The manifest intent of the law is not to Action by H. C. Stuht and wife against the cover and compensate for accidents generally, United States Fidelity & Guaranty Company. but to cover accidents occurring in those em- From

em: From a judgment for plaintiffs, defendant

iud ployments or occupations which are specifically classed as, or which may be found by the com- appeals. Reversed, and cause ordered dismission to be, extrahazardous.”

missed.

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Shepard, Burkheimer & Burkheimer, of in front of me, and I turned in close to the curb Seattle, for appellant. Vince H. Faben, of on the right-hand side. When I came to Four

teenth, it is very narrow. Fourteenth avenue is Seattle, for respondents.

very narrow at that point, and in making the

turn-I couldn't make the turn in the street; MOUNT, J. This is an action upon a poli-, and I went out where the sidewalk strip should cy of automobile insurance. The complaint,

be. Of course, I knew I was getting dangerafter setting out the terms of the policy, al

ously close to the edge of the bank, but I felt

I was safe, and was getting back into the road, leged that on August 9, 1913, the insured when all at once I went down the bank. * * * automobile was wrecked and destroyed Of course, I knew I was headed back. I got through a collision between the automobile

the wheels back, and I headed up Fourteenth

avenue, or should have been. I was out in the and the wooden planking constituting a por. sidewalk strip all right, but at this point the tion of the sluice box at the side of the machine came up, and the next thing I knew roadway and projecting into the highway, a man was leaning over me down the hill, down and by striking and colliding with a tree

10 or 15 feet below, and he asked me if I was

hurt. I was stunned; I didn't know just exnear the roadway, and striking violently the actly how long it was. I didn't lose consciousground near the roadway then being traveled ness, but I was stunned, and the machine was a by the machine, to the damage of the plaintiff

few feet farther down the hill than I was, in the sum of $1,000. The amended answer

against a tree.' of the defendant admitted the issuance of

| The witness testified that the bank at that the policy, but denied all the other allega

point was steeper than 45 degrees; that tions of the complaint, and alleged two af

these streets were asphalt paved streets ; firmative defenses, which it will not be neces

that he did not see any water drain or sluice sary to notice. The case was tried to the

box; that on the next day he returned to the court and a jury. At the conclusion of the

scene of the accident and examined the plaintiff's, evidence, the defendant moved the place. He testified that the front end of the court for a directed verdict, and again made

automobile evidently rolled down the sluice the same motion at the close of all the evi

box, and that was what kept the automobile dence. Finally, after a verdict was returned

from crushing him. He then testified: by the jury, a motion was made for judgment

"It is a wooden box, and at one time or annotwithstanding the verdict. These motions

other-it looks like it was used for a sluice box

or sewer, and that runs down the hill quite a were all denied, and a judgment was entered little ways and sticks above the level of Fourupon the verdict. The defendant has ap- teenth avenue just a little ways, * * 1

should judge it would be a foot. * * * Just pealed.

about 20 feet before I started to make the turn, We are satisfied that these motions should I realized I was so close to the right-hand curb ; have been granted. The policy sued upon in it would be hard to make the turn after I got the plaintiff's against damage to his over there. I didn't realize the narrowness of

Fourteenth avenue until after I got so close-I automobile

could see it would be awful hard to make the “if caused solely by collision with another ob- turn into Fourteenth avenue, and then I set the ject, either moving or stationary (excluding, brakes, trying to slow down. I thought I was however, all loss or damage by fire from any headed safely back into the street. I knew I cause whatsoever; all loss or damage caused was dangerously close to the bank, and I had by striking any portion of the roadbed, or by the wheels turned as far as they would go to striking street or steam railway rails or ties; the right. I thought I was safely back on the and all loss or damage caused by the upset of level. It didn't go over or shoot over; it came the injured automobile unless such upset is a to a sudden jar, and it turned sideways." direct result of such a collision as is covered hereby)."

He then goes on to explain the damage to The evidence for the plaintiff shows that

the car. the automobile in question had been taken

It is not claimed by the respondent that to a repair shop to have some repairs made

this sluice box was in the street, or even in thereon. After the repairs had been made,

the sidewalk strip. The testimony shows the mechanician took the automobile and

that it was to the side of the sidewalk strip started to deliver it to the owner. He testi

lying on the side of the hill, and projecting fied that he did not go directly to the garage

above the level of the street about a foot. It of the owner, but went in a roundabout way,

seems too plain for discussion that this car intending first to go to his home, and from

was being driven down the hill at a rapid thence to take the car to the owner. He was

rate of speed, when the driver attempted to the only witness who testified for the plain

make the short turn to the right onto Fourtiff as to the manner of the damage to the

teenth street, and on the brink of the hill the car. He testified upon that question as fol

car upset and went over the hill. It was lows:

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 exactly. * * * Well I was going west, or

witnesses shows very clearly and beyond diseast, 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 where the car first struck the sluice box / resulted in findings and judgment in favor of after the upset. The plaintiff's witness him- the defendants, from which the plaintiff has self says this sluice box saved his life. We appealed. have no doubt, from the plaintiff's own evi- No question worthy of serious consideradence, that this was a clear case of the car tion is here presented other than questions of upsetting upon the brink of a precipice with- fact. We have carefully read all of the eviout any other cause. It was the duty of dence as presented to us by the abstract the trial court, therefore, to have directed thereof made by counsel, and conclude that a verdict upon the first motion made by the we would not be warranted in interfering defendant, because the policy provides that with the conclusions reached by the trial if the damage is caused by an upset of court. The controlling evidence consists the injured automobile, unless such upset is almost wholly of oral testimony of witnesses the direct result of a collision such as is cov- given in the presence of the trial court. ered thereby, such damage is not insured Viewing it even in cold typewriting, we inagainst. There was no collision with any cline to the view that it preponderates object shown. The only claim of the re- against appellant's contentions. We think it spondent is that there was a sudden jar. It would be unprofitable to discuss the evidence is argued from this that the jar was caused in detail here. by a collision. But aside from the mere The judgment is affirmed. fact of a jar, there is nothing to show that there was anything in the roadway, either inovable or stationary, that the automobile

FERCOT v. CITY OF SPOKANE. could have collided with. It simply went over the bank. The jar that the witness

(No. 12801.) spoke of was no doubt caused by the automo

(Supreme Court of Washington. Jan. 5, 1916.) bile letting loose from the roadway and start

v and start. 1. INTOXICATING LIQUORS 97-LICENSES

FORFEITURE. ing to turn over as it went down the preci

The forfeiture of a saloon license for mispice. It is plain, we think, that the court conduct is a matter so entirely within the disshould have directed a verdict in favor of cretion of the city authorities that the courts the defendant.

will not review their judgment, consequently the

propriety of such action cannot be questioned The judgment appealed from is therefore

in a proceeding by the former licensee to rereversed, and the cause ordered dismissed. cover a proportionate ' part of his license fee

from the city. MORRIS, C. J., and CHADWICK and [Ed. Note. For other cases, see Intoxicating ELLIS, JJ., concur.

Liquors, Dec. Dig. Om97.)
2. INTOXICATING LIQUORS 97-LICENSES-
RECOVERY OF FEE.

In the absence of a statute or ordinance WINTER V. EBERHARDT et al. compelling it to do so, a city is not liable, at the (No. 12908.)

suit of a former licensee, where the license to

sell intoxicants has been forfeited for cause, (Supreme Court of Washington, Jan. 5, 1916.) | for return of a proportionate part of the amount APPEAL AND ERROR 1010- FINDINGS - paid for the license. EVIDENCE.

[Ed. Note. For other cases, see Intoxicating A finding for defendants, in an action for Liquors, Dec. Dig. 97.] damages from false representations, whereby Department 1. Appeal from Superior plaintiff was induced to purchase certain mining claims, could not be disturbed on appeal, Court, Spokane County; E. K. Pendergast, where it was supported by evidence, which was Judge. almost entirely oral, and no material question

Action by Armand Fercot against the City was presented to the Supreme Court other than questions of fact.

of Spokane, a municipal corporation. From [Ed. Note. For other cases, see Appeal and a judgment for defendant, plaintiff appeals. Error, Cent. Dig. 88 3979–3982, 4024; Dec. Dig. Affirmed. 1010.)

F. W. Girand, of Spokane, for appellant. Department 2. Appeal from Superior | H. M. Stephens. Ernest E. Sargeant. and Court, King County; Mitchell Gilliam, Judge. Dole D Drainalo

ham, Judge. Dale D. Drain, all of Spokane, for respondent. Action by A, H. Winter against George Eberhardt and others. From judgment for CHADWICK, J. Appellant brought this defendants, plaintiff appeals. Affirmed.

action to recover a proportionate part of a S. S. Langland, of Seattle, for appellant. saloon license after a forfeiture by the city Maurice D. Leehey and Robert M. Jones, both commission for misconduct in the use of his of Seattle, for respondent.

license and upon his plea of guilty to a charge

that he had sold liquor on Sunday. PER CURIAM. The plaintiff seeks recoy- [1] It is enough to say that this court has ery of damages from the defendants, which held that the forfeiture of a saloon license he claims resulted from false representations for misconduct is a matter so entirely within made to him by the defendants, inducing him the discretion of the city authorities that the to purchase from them certain mining claims. courts will not review their judgment. State Trial before the superior court without a jury i ex rel. Aberdeen v. Superior Court, 44 Wash. 526, 87 Pac. 818; State ex rel. Puyallup v. 0. 0. Felkner, of Ellensburg, for appelSuperior Court, 50 Wash. 650, 97 Pac. 778. lants. E. E. Wager, of Ellensburg, and HarHaving held that a review may not be bad di- i ry L. Brown, of Roslyn, for respondent. rectly, it will follow as of course that neither the discretion of the council nor the guilt! CHADWICK, J. Appellant Minna Domor innocence of the appellant can be tried rese is the owner of a tract of land situate out in a collateral proceeding.

in a mountain cañon near the city of Roslyn. [2] This court has also held, and its hold- Appellant Hamer is her lessee. In 1909 ing seems to be in line with the decisions of respondent put in a system of waterworks. other courts, that, in the absence of a stat. It took its supply of water from Cedar ute or ordinance compelling it to do so, a creek, which flows in the cañon and over the city is not liable, at the suit of the licensee, lands of appellant Domrese. The water was for the return of the money paid for a liquor taken at a point above and conducted license where it has been revoked or forfeit- through a pipe line over and across her land. ed for any cause which, to the council, seems At the time the work was in progress she ob sufficient. Krueger v. Colville, 49 Wash. 295, jected to the trespass of the city. After 95 Pac. 81.

some negotiations she executed a deed for a *The law is such that appellant cannot now right of way for the pipe line, and the city be heard to claim, as he attempts to in this completed its work. case, that the crime, if any, was induced by în 1914 this action was begun. Appellant the agents of the city; that he was not guil sets up her title, alleging that the city has ty; that he pleaded guilty on the advice of appropriated the waters of the creek, which counsel that the police justice would proba is riparian to her land, and asks that rebly hold with the city, and it would be cheap- spondent be enjoined from a further diverer for him to do so than to stand upon his sion of the water. The court below denied plea of not guilty; and that he has, at all this relief upon the ground that the waters times, obeyed the laws of the state and the of the stream had not for a period of ten ordinances of the city.

years been put to any beneficial use and upThere was a time for appellant to try on the ground of equitable estoppel. We these questions. If convicted before the jus- I think it unnecessary to inquire whether the tice, he might have appealed to the superior judgment of the trial judge can be sustained court. He has made his own record and is

upon either one of these theories. bound by it.

Granting, but without deciding, that apAffirmed

pellant has a cause of action, the only ques

tion with which we are concerned is whether MORRIS, C. J., and MOUNT, ELLIS,

she has a remedy in equity. Respondent and FULLERTON, JJ., concur.

might at the time of its trespass, if it was a trespass, have maintained an eminent domain proceeding. It might have condemned all of the interest of the appellants in the

waters of Cedar creek. It did not do so, DOMRESE et al. v. CITY OF ROSLYN.

but did complete its water system, and put (No. 12846.)

the waters of the stream to a public use. (Supreme Court of Washington. Jan. 7, 1916.) This court, since the case of Kakeldy v. ESTOPPEL Om93-PERMITTING IMPROVEMENTS Columbia & Puget Sound R. R, Co., 37 Wash. --DIVERSION OF WATER-1 NJUNCTION.

675, SO Pac. 205, was decided, has consistentWhere a landowner objected when a city,

| ly held that injunction will not lie in such having the power of eminent domain, but not exercising same, began the construction of a sys- cases. The reasoning of that case is that a tem of waterworks necessitating the appro- party who'acquiesces in the construction and priation of water from a stream which flowed operation of a public utility is estopped to over her land and the conducting of a pipe line

| maintain ejectment or a suit for injunction, across her land, but after some negotiations gave a deed for the right of way of the pipe but will be left to his action for damages. line, after which the city completed its work, she In Kincaid v. Seattle, 74 Wash. 617, 134 and her lessee were estopped from thereafter pon

| Pac. 504, 135 Pac. 820, the deeper principle

04 enjoining the city from a further diversion of the water; the wrong, if any, being not in the is adverted to; that is, that the wrong lies, taking of the water, but in the manner of tak- not in the taking, but in the manner of the ing.

| taking; for the taking, whether done direct[Ed. Note.-For other cases, see Estoppel, 1 ly or indirectly, is an exercise of a sovereign Cent. Dig. $S 25+275; Dec. Dig. 93.)

power. We held squarely that: Department 1. Appeal from Superior Where one having a right to condemn propsame. The constitutional right to compensa-, the issue presented by the parties was whether tion cannot be taken away; for the right to defendant ordered plaintiff to crank the autoredress the wrong does not and cannot be made mobile, and there was no contention that he perto depend upon statute law. The remedy is inmitted plaintiff as a mere volunteer to crank the courts having jurisdiction to redress wrongs the machine. under the forms of the common law."

erty “* * * is about to take possession Court, Kittitas County; Ralph Kauffman,

without condemnation, injunction is a proper Judge.

remedy; where there has been a taking and Action by Minna Domrese and another the public function is being exercised, the only against the City of Roslyn, a municipal cor

remedy is to take compensation. Whether we

call the taking a tort, or say that the claimant poration. From Judgment for derendant, can waive the tort and sue on an implied conplaintiffs appeal. Affirmed.

| tract, it makes no difference; the law is the

[Ed. Note.-Tror other cases, see Appeal and In Thorberg v. Hoquiam. 77 Wash. 679, Error, Cent. Dig. $ 4220; Dec. Dig. Om 1066.] 138 Pac. 304, an injunction was sought upon 3. DAMAGES 26- PERSONAL INJURIES-FU

TURE PAIN AND SUFFERING--EVIDENCE. a similar state of facts. We said:

While there can be no recovery for future “Plaintiffs' only remedy in this case is to re- pain and suffering which will "probably” occur cover damages. They cannot enjoin the work. in the future, the recovery in a personal injury They permitted the city to begin and prosecute case may include damages for future pain and the work until near completion, and must now suffering which the evidence shows plaintiff will seek their remedy at law.".

be subjected to. In Stewart v. Fitzimmons, 149 Pac. 659, (Ed. Note. For other cases, see Damages, we likened the right to claim a homestead to Cent. Dig. $8 69, 236; Dec. Dig. Om 26.] the act of a city taking property for a pub 4. TRIAL Om 252–INSTRUCTIONS-EVIDENCE. lic use without first resorting to an eminentem

Where, in an employé's action for damages

| from his arm being broken while he was atdomain proceeding. We said:

tempting to crank defendant's automobile, there “The right of Peter A. Peterson to claim a was no evidence that there was a safe and also homestead being referable to the sovereign pow- unsafe way in which to take hold of the crank er of the state, the case falls within the prin- handle, and, though there was evidence that one ciple announced by this court in holding that way of taking hold of the handle was safer than the state or any of its instrumentalities having another, plaintiff testified that he was not aware power to exercise the right of eminent domain of this fact, and it appeared that he had not would not be ousted as for trespass after taking been instructed thereon, the court properly reproperty and before ascertaining the damages to fused to instruct that an employé cannot recover be paid; this upon the theory that a right to for his injuries where he had chosen an unsafe take is a sovereign right, and that the remedy way to perform an act, where there is a safe in damages was open to the aggrieved party way which a reasonably prudent person would under the forms, modes, and usages of the com- take. mon law. Kincaid v. Seattle, 74 Wash. 617, Ed. Note. For other cases. see Trial. Cent. 134 Pac. 504, 135 Pac. 820; Casassa v. Seattle, Dig. 88 505, 596-612: Dec. Dig. 75 Wash. 367, 134 Pac. 1080."

252.]

5. APPEAL AND ERROR Om 1070 — EXCESSIVE The wrong to appellants, if any, being not VERDICT-CURE OF ERROR. in the taking, but in the manner of taking, Error in returning a verdict for $100 for an and the work being done, it follows that

item as to which the instructions limited the

recovery to $40 was cured where the verdict equity will afford no remedy.

was reduced more than $100. Judgment of the lower court is affirmed. [Ed. Note. For other cases, see Appeal and

Error, Cent. Dig. 88 4231-4233; Dec. Dig. MORRIS, C. J., and MOUNT, ELLIS, and FULLERTON, JJ., concur.

6. TRIAL mm 133 - OPENING STATEMENT OF COUNSEL-CURE OF ERROR-INSTRUCTIONS.

A statement in the opening statement of counsel for plaintiff that shortly after the acci

dent defendant discharged plaintiff from his GODLEY V. GOWEN. (No. 12899.) employ and refused to pay his doctor's bill was (Supreme Court of Washington. Jan. 7. 1916.) / not prejudicial, where, on objection made, the

court told the jury that they should not con1. MASTER AND SERVANT 286-INJURY TO sider such statements unless they were support

SERVANT - NEGLIGENCE - QUESTION FOR ed by evidence.
JURY-EVIDENCE.

[Ed, Note.-For other cases, see Trial, Cent. Where, in an employe's action for damages Di

ages Dig. § 316; Dec. Dig. Om 133.] from his arm being broken while he was atwas evidence that plaintiff was unfamiliar with EXCESSIVE RECOVERY. the management of an automobile and the meth Where an employé suffered a broken arm, od of safely starting the engine, and that de- and his expenses connected therewith were about fendant knew advancement of the spark lever $10, a recovery of $400 was not excessive. when the machine was being cranked would [Ed. Note. For other cases, see Damages, cause the engine to back-fire, and yet advanced Cent. Dig. 88 357–367, 370; Dec. Dig. Om 131.) the lever so as to cause the engine to kick back when he knew plaintiff was turning the crank, Department 1. Appeal from Superior and in danger, the question of defendant's neg- Court, King County; Everett Smith, Judge. ligence was for the jury.

Action by Walter A. Godley against Elwin [Ed. Note. For other cases, see Master and Servant. Cent. Dig. $$ 1001, 1006. 1008. 1010- T. Gowen. From judgment for plaintiff, de1015, 1017-1033, 1036–1042, 1044, 1046--1050; fendant appeals. Affirmed. Dec. Dig. Om 286.)

| Jas. A. Dougan, of Seattle, for appellant. 2. APPEAL AND ERROR 1066_REVIEW-INSTRUCTIONS-HARMLESS ERROR.

Walter S. Fulton, of Seattle, for respondent. In an employé's action for damages from his arm being broken while attempting to crank defendant's automobile, an instruction that, if

MOUNT, J. The plaintiff had his arm an employé is ordered or permitted to do dan- broken while attenupting to crank an autogerous work, the employer should sufficiently mobile. He sued the defendant for damages, instruct him, if he is disqualified, that he may understand the dangers. if erroneous in the use alleging negligence in two respects: First. of the word "permitted,” was harmless, where that the plaintiff was employed by the de

101

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