fendants ascended a movable stepladder to work near the unguarded rim of a cogwheel. When he was about to descend, a truckman moved the ladder, causing him to fall on the unguarded wheel. The contention was made that the defendants' negligence in failing to guard the cogwheel as required by statute, and in failing to provide an immovable ladder, was not the proximate cause of the accident, but that the wrongful act of the truckman in moving the ladder was such proximate cause. The issue was submitted to the jury, and the appellate court, speaking through Armour, C. J. O., said:

"The jury having found that the injury to the workman was caused by the negligence of the defendants in no way guarding the wheel, and in not properly fastening the ladder to the floor, and this finding being, as I think, supported by the evidence, the next question is, did the intervention of the workman in wrongfully taking away the ladder relieve the defendants from the consequences of their negligence, and I think not, for the defendant's negligence still remained an operating cause of the workman's injury. According to what is said by Lord Esher and Rigby, L. J., in Engelhart v. Farrant & Co. [1897], 1 Q. B. 240, the question whether the negligence of the defendants was an effective cause of the workman's injury was a question for the jury, and if so, they have in effect determined it, by finding, as they did in their answers to the third and seventh questions submitted to them. And I think that the authorities show that the intervention of the workman in wrongfully taking away the ladder did not relieve the defendants from the consequences of their negligence."

In Labombarde v. Chatham Gas Co., supra, where plaintiff received an electric shock, the court said:

"But if the actual throwing of the loose guy wire over the other wires were the act of some passer-by, who thought to put it out of the way, or even of some mischievous urchin, it seems to me such a likely and probable thing to happen that it is not too remotely connected with the act of cutting the guy wire from its fastenings and leaving it loose on the ground to render those guilty of the latter negligence liable

for the consequences which ensued though an independent agency had intervened as their immediate cause. The original negligence of the workmen of the defendant company was an effective cause of the injury to the plaintiffs. McDowall v. Great Western R. W. Co. [1902], 1 K. B. 618 [1903], 2 K. B. 331, 337-8."

The recent case of Wellington v. Pelletier, supra, is especially pertinent. There the defendant's employees had negligently left a number of cars standing on a spur track at the head of a grade, secured only by setting the brakes. They should have been further secured by fastening or blocking the wheels. Some children playing about the cars released the brakes, causing them to run down and kill defendant's employee, who was working in a trench between the rails of the spur. It was held that the intervening act of the children did not prevent the defendant's negligence from being the proximate cause of the accident. The court said:

"It is claimed that the interposition of the boys in this case was the interposition of a new efficient cause, which, if interposed, the law says eliminates the original cause. On the other hand, it has been thoroughly understood, since the leading case of Scott v. Shepherd, 2 W. Bl. 892, well known as the 'Squib Case,' that the interposition even of human beings, acting under circumstances which deprive them of periods for reflection, or known to be of classes which are ordinarily governed by unreasoning impulses, does not come within the class of responsible interventions referred to. This is illustrated in one direction by the squib case, and in the other direction by the well known cases where young children, either through carelessness or inattention, have been intrusted with dangerous weapons. The general principle is sufficiently discussed in Pollock's Law of Torts (8th Eng. ed.) 45 et seq. The rule on which the plaintiff relies in this respect was authoritatively stated and applied by the Court of Appeal in 1896 in Engelhart v. Farrant [1897] 1 Q. B. 240."

In this case it was for the jury to determine whether respondent and the other boys, considering their age, their experience, and their knowledge of right and wrong, were

in their acts governed by unreasoning and natural impulses. That the question of proximate cause was properly submitted to the jury, see: Milwaukee & St. Paul R. Co. v. Kellogg, 94 U. S. 469; Union Pac. R. Co. v. Callaghan, 56 Fed. 988; Denver etc. R. Co. v. Robbins, 2 Colo. App. 313, 30 Pac. 261.

Appellants make other assignments of error based upon instructions given and refused, but the foregoing discussion disposes of them adversely to their contention. The instructions given fully, fairly, and correctly stated the law, and properly submitted all issues of fact to the jury for their

consideration.

It is contended that the criminal act of the boys in stealing the dynamite was such an independent, intervening act as to insulate the appellants' negligence and relieve them from liability. The question as to whether the boys fully understood the criminal import of their act was properly submitted to the jury and determined adversely to the appellants' contention, as was also the question of the contributory negligence of the respondent, he being of tender age. There was evidence tending to show that the boys, including respondent, did, to a limited extent, realize that dynamite was a violent explosive. They were trying to explode it; but the evidence further shows that they did not fully understand or appreciate all of its dangerous qualities. They supposed it could only be exploded by some method of ignition, and when they lit the fuse, they dodged behind large stumps for protection. It is evident, however, that they did not anticipate that any explosion could be produced in the manner in which it was produced. In the light of respondent's tender years, his limited knowledge, his lack of experience, and all of the facts and circumstances disclosed by the evidence, we cannot hold that he was, as a matter of law, guilty of such contributory negligence as to relieve the appellants from liability, but must hold that the question of his contributory negligence was an issue for the jury.

11-58 WASH.

It appears that, on a previous trial, the boys Wesley and Leslie Depew gave evidence tending to show that, when they took the dynamite, caps and fuse, they understood they were guilty of the act of stealing. On the last trial their evidence tended to show that they did not understand their acts to be criminal, but supposed they were taking abandoned property, and at the time thought nothing about any criminal act or wrong being involved. After the trial certain affidavits were procured from the boys, tending to show that they did understand the criminal nature of the acts involved, and upon these affidavits as newly discovered evidence, the appellants moved for a new trial. They now contend that the trial judge erred in denying their motion. Upon the last trial they were permitted to, and did, show the previous testimony of these boys, and were a new trial to be now granted, it could again be shown that on different occasions there had been some conflict in the boys' testimony. Even then, their credibility and the weight of their evidence would still be a question for the jury. We fail to see that the trial judge abused his discretion or invaded any of appellants' rights in denying the motion for a new trial.

The jury awarded damages in the sum of $25,000, for which judgment was entered. Appellants now contend the award is excessive. While the verdict is large, the respondent sustained most terrible injuries. We do not think we would be justified in ordering any reduction. The judgment is affirmed.

RUDKIN, C. J., DUNBAR, PARKER, MOUNT, FULLERTON, and GOSE, JJ., concur.

[No. 8269. Department Two. April 22, 1910.]

J. V. EICHBAUM, Respondent, v. CALDWELL BROTHERS COMPANY, Appellant.1

APPEAL-REVIEW-HARMLESS ERROR. On trial de novo after a trial before the court without a jury, error in admitting incompetent evidence is immaterial where the findings are sustained by competent evidence.

SALES ACTION FOR PRICE-WARRANTY-BREACH-EVIDENCE-COMPETENCY. In an action for the price of a pump of a certain capacity and guaranteed weight, evidence that the parties did not know the weight of a pump of that capacity is admissible as bearing upon the question whether the weight was necessary to insure the capacity, a lighter weight having been accepted and damages claimed by the defendant.

The pur

SAME-DAMAGES FOR BREACH OF WARRANTY-WAIVER. chaser of a pump of a certain capacity and of "guaranteed weight 35,000 lbs." cannot recover damages because the pump delivered weighed only 27,000 lbs., if the lighter pump actually performed every function of a pump of the heavier weight and was equally serviceable, durable, and valuable, as the guarantee is waived by receiving the lighter pump.

In an

SAME DELAY IN DELIVERY-LOSSES NOT CONTEMPLATED. action for the price of a pump to be manufactured and shipped within a specified time, the defendant cannot recover loss of rentals during delay in delivery, where there was nothing to show that such damage was within the contemplation of the parties or actually sustained, or that there was any opportunity to rent it if it had been promptly delivered, and it was received before the defendant was ready to use it.

Appeal from a judgment of the superior court for King county, Tallman, J., entered April 14, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract. Affirmed.

Shank & Smith, for appellant.

Charles M. Baxter, for respondent. 'Reported in 108 Pac. 434.