tomobile going in the same direction as he was, | intersection, an automobile going north passhis contributory negligence was a question for the jury. 4. Trial 252 (9)—Instruction on last clear chance held not supported by evidence. It was error for the court in an action for injuries resulting from a collision between a street car and plaintiff's automobile to give an instruction on the doctrine of last clear chance, where there was no evidence that defendant's motorman saw, or could have seen, that plaintiff was in a position of peril in time to have avoided the accident. 5. Appeal and error 1066 Instruction on last clear chance unsupported by evidence is prejudicial. In an action for injuries resulting from a collision between a street car and plaintiff's automobile, the giving of an instruction on last clear chance, which was unsupported by evidence, was error prejudicial to defendant. Department 1. ed him, following close to the street car. He slowed down the speed of his truck to let the automobile clear his front, and turned behind it and to his left on Blanchard street. As he reached the inbound track, he saw a south-bound car, approaching him about "50 or 60" feet away, and was struck by it before he could clear his truck from the street car track. The operator of the car sounded no gong, or bell, nor did he give any other warning of the car's approach. The car was traveling rapidly, its speed being estimated as high as 35 miles an hour. From the time the respondent reached Blanchard street un til after he turned to the west his line of vision to the north was obscured by the street car and the automobile which had just passed him, and he could not see the approaching car, but whether he looked for an approaching car prior to the time his vision was thus obscured, or whether he Appeal from Superior Court, King County; could have seen a car for any considerable J. T. Renald, Judge. distance had he so looked, the record is silent. Action by Elmer Johnson against the City of Seattle. Judgment for plaintiff, and defendant appeals. Reversed and remanded. in chief the appellant moved for a nonsuit, [1] At the close of the respondent's case which motion the trial court denied, and its action in so doing constitutes the first error assigned. In its argument upon this ques Walter F. Meier and Frank S. Griffith, both of Seattle, for appellant. Walter S. Fulton, of Seattle, for respond- tion the appellant makes two contentions, ent. FULLERTON, J. In this action the respondent Johnson recovered against the appellant, city of Seattle, for injuries to his person and property, which he alleged were caused by the negligent operation of a street car of the appellant. From the evidence the jury were warranted in finding the following facts: First avenue is a street of the appellant city extending north and south. It has upon it two parallel street car tracks. These tracks are equidistant from the center of the street, their inner rails being 5 feet 31⁄2 inches apart. Over these tracks the city operates street cars; the outbound cars (those going north) are operated on the east track and the inbound cars on the west track. Blanchard street is a street crossing the street first named at a right angle. The respondent is an expressman, using in the conduct of his business an automobile truck which he owns. His business hours are usually from 3 o'clock in the afternoon until midnight. On the night of May 4, 1919, between the hours of 10 and 11 o'clock, the respondent, after finishing his work, started for his home, driving north upon First avenue on the east side of the east car track, intending to turn west on Blanchard street. As he approached Blanchard street a street car passed him on the east track, going in the direction in which he was traveling. As he reached the the first one of which is that the evidence conclusively shows that the accident did not occur at Blanchard street, but that it occurred some 20 or more feet north of the north line of that street, and was a head-on collision, not such a collision as the respondent described. But while the city produced evidence tending strongly to substantiate its claim, the evidence on the question was contradictory. Not only did the respondent himself testify to the contrary, but he produced eyewitnesses of the accident who substantiated his own evidence. The question therefore was for the jury. [2] The second contention is that the respondent was guilty of such contributory negligence as to prevent a recovery. This presents a more serious question but we think it must also be resolved against the appellant. Contrary to the rule applicable to ordinary railroads, we have held that it is not negligence in itself to fail to stop, look, and listen before crossing a street car track. This, of course, does not mean that a person so crossing may act blindly, without giving any heed to his own safety; it meaus simply that the rule is not one of uniform application to such a situation; that a person is not to be charged with negligence from the fact alone that he did not stop, look, and listen. If the conditions are such that it would be the duty of an ordinarily prudent person to stop, look, and listen before crossing the track, then the person crossing must (194 P.) "Therefore, if you should find that the opera tor of the street car was negligent as charged, but that the plaintiff was himself negligent and careless, and that the accident would not have happened except for his carelessness, then plaintiff is guilty of contributory negligence and cannot recover, unless you further believe that the motorman of the street car observed the in the exercise of ordinary care on his part had plaintiff negligently running into danger, and time and opportunity to avoid the collision. If the motorman saw the danger of the plaintiff in time by the exercise of ordinary care on his part to avoid the collision, it was his duty to do so, and if he failed to do so, having the time and ability to do so, then it would be the defendant's negligence, and not the plaintiff's negligence, which was the proximate cause of the injury." do so, else be charged with negligence for not, viewed in this court. But the court gave an so doing. Stated in another way, the omis- instruction on the doctrine of last clear sion of the duty is but a fact to be weighed chance. After defining negligence and conwith all other facts and circumstances sur-tributory negligence, it said: rounding the case in determining the question of negligence or contributory negligence. [3] Applying this principle to facts shown here, it is our conclusion that the court cannot say as matter of law that the respondent was guilty of negligence. In the language of the governing ordinance it was the duty of the operators of the car to have "attached thereto a bell, gong, horn, whistle, or other signal device capable of producing an abrupt sound sufficiently loud to be heard above the noise of traffic and to serve as an adequate warning of the approach of such" car, and it is made the duty of the operator of the car to sound such signal device in all instances where there is danger of a collision. Plainly, it was for the jury to say whether the circumstances shown here made it the duty of the operator of the street car to sound the signal on approaching the street crossing, and it would seem that it was equally their duty to say whether, since they found that no alarm was sounded, the respondent was guilty of negligence in attempt-respondent negligently running into danger in ing to cross the street car track, without stopping to look and listen for an approaching car. Individual opinions are not to govern in such cases. The facts must be such that reasonable minds cannot reasonably differ on the question before negligence can be declared to exist as matter of law. Counsel for the city have brought to our attention many cases wherein they contend the facts are similar, and wherein we have held that the facts relegated the question to one of law. These cases we do not feel called upon to review specially. Each of them, we think, will be found to contain facts and circumstances not here present-facts and circumstances which render them distinguishable from the facts here shown. As cases tending to support our conclusion, however, we cite the following: Burian v. Seattle Electric Co., 26 Wash. 606, 67 Pac. 214; Johannessen v. Washington Water Power Co., 104 Wash. 182, 176 Pac. 8; Coons v. Olympia Light & Power Co., 191 Pac. 769; Carlisle v. Hargreaves, 192 Pac. 894; Ziomko v. Puget Sound Electric Railway, 192 Pac. 1009. [4] The appellant complains of certain of the instructions given by the court to the jury. To all of these, save one, we think the exceptions were too general to apprise the trial court of the precise contention made, and that they cannot for that reason be re [5] Manifestly there was nothing in the evidence which justified this instruction. No witness testified to a state of facts which tended in the remotest degree to show that the motorman of the street car observed the time, by the exercise of ordinary care on his part, to avoid the collision. The obstructions that prevented the respondent when he turned across the track from seeing the approaching car prevented the motorman of the car from seeing the respondent, and if the motorman did see, or ought to have seen, the respondent prior to the time he reached the intersecting street, of which there is no evidence, he would not be chargeable with notice that the respondent was going to turn thereon. After he did actually see the respondent on the track there was plainly no time or opportunity to avoid a collision. Nor is the giving of such an instruction harmless error. As was said by the court in Drown v. Northern Ohio Transaction Co., 76 Ohio St. 234, 81 N. E. 326, 10 L. R. A. (N. S.) 421, 118 Am. St. Rep. 844, the doctrine of last clear chance is applicable only in special cases, "and the prevalent habit of incorporating it in almost every charge to the jury in negligence cases, in connection with, and often as a part of, instructions upon the subject of contributory negligence, is misleading and dangerous." The judgment is reversed, and the cause remanded for a new trial. HOLCOMB, C. J., and PARKER, MACKINTOSH, and BRIDGES, JJ., concur. (98 Or. 431) accident the plaintiff was about 40 years of WINTERMUTE v. OREGON-WASHINGTON age, and had been in the defendant's employ R. & NAV. co. 3. Master and servant 203(1), 227(1) "Assumption of risk" and "contributory negligence" distinct defenses. The defenses of assumption of risk and of contributory negligence are separate and distinct in legal effect, although they may rest largely on the same state of facts; assumption of risk being an implied contract condition, while contributory negligence arises from the injured employe's own tort. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Assumption of Risk; Contributory Negligence.] 4. Master and servant 217(1)—Knowledge Indispensable to assumption of risk. Notice or knowledge and appreciation of danger are indispensable to a servant's assumption of risk of injury. 5. Master and servant 217(13)-Engineer, knowing location of pits in darkened roundhouse, held to assume risk. Where a switch engineer going to the registry stand in the roundhouse, darkened by steam when he entered, knew the location of engine pits, and undertook to pass between the pits obscured by the steam, instead of using a safe way, he assumed the risk of injury by stepping into one of them. In Banc. some 10 years in various capacities about its yards and roundhouses as wiper, fireman, and latterly as a switch engineer. The mishap upon which the action is based occurred about 6:30 o'clock on the morning of December 31, 1916. It is said in the complaint and admitted by the answer, in substance, that the plaintiff's first duty each day was to register at a desk in the defendant's roundhouse, for which purpose he entered that building, which was so constructed that when an engine is resting on a track therein, directly under the machine and between the tracks is a pit constructed there for the purpose of enabling mechanics to work under the locomotive in a standing position. The charge of negligence against the defendant is couched in the following language: "The plaintiff alleges that defendant was then and there careless and negligent in the following particulars, to wit: "(a) That said defendant failed to maintain said roundhouse, and that portion thereof which defendant [plaintiff] was obliged to traverse on the way to the register stand in a properly illuminated condition, and that the same was dark. "(b) That while plaintiff was in said roundhouse on his way to the register stand said defendant, through some of its careless servants, whose names are unknown to the plaintiff, caused an engine to emit a large quantity of steam, by reason of which said roundhouse became so darkened it was impossible for the plaintiff to see. "(c) That the said defendant failed in its duty to provide the plaintiff a safe place in which to work, in that the said defendant did not in any manner whatsoever provide any safeguards around said pits to prevent its employés from falling therein, or to give warning of the proximity to the said pits, so that the employé could protect himself when the said roundhouse became so darkened that the said pits could not be seen and distinguished." It is further alleged in substance that by reason of the negligent acts of the defendant, and while plaintiff in the performance of his duty was going to the desk to register, it became necessary for him and he sought Appeal from Circuit Court, Baker County; to go by another direction, and fell into one Gustav Anderson, Judge. of the pits, suffering injuries which he describes, all to his damage in a sum alleged. The defendant denies all negligence and damages charged against it, and for a first separate defense alleges the following matter: "That on the 31st day of December, 1916, it was engaged in the operation of a railroad in the states of Oregon, Washington, and Idaho, as a common carrier of passengers and freight for hire; that said railroad extended through the town of Huntington, Baker county, Or., and (194 P.) "That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employés, such employé shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé." that on said date, and for a long time prior | brought under the federal Employers' Liabilthereto, plaintiff was and had been a switch en- ity Act of April 22, 1908 (chapter 149, 35 U. gineer in the employ of the defendant at Hunt- S. Stat. 65). This act was amended April 5, ington, Or., and that during the period of his 1910 (chapter 143, 36 U. S. Stat. 291 [U. S. said employment, he, the said plaintiff, had hab- Comp. St. §§ 8657-8665]), but not in a way itually been in and around said roundhouse, several times each day, and knew the construction affecting the present issue. By section 3 of of the same and the manner in which the work that statute, contributory negligence of the and operations in said roundhouse were con- employé who brings action against his emducted and operated; that during all of said ployer serves only to mitigate the damages in times the work done in said roundhouse and the proportion to the amount of negligence atoperations therein required that steam be per- tributable to the employé. Section 4 reads mitted to escape from engines in said round- thus: house, and the emission of steam from engines in said roundhouse was a daily occurrence, as the plaintiff then and there during all of said time well knew; that the plaintiff knew of the arrangement of said roundhouse, of the locations of the pits therein, and of the fixtures, appliances, and appurtenances therein, and knew of all the conditions in and around said roundhouse; that in said roundhouse there was provided a safe way whereby to enter the same and to proceed to the registering desk in said roundhouse, and that said way was the customary and safe way to travel into said round- As Congress legislated in this matter in house and to said registering desk; that the the exercise of its paramount authority over plaintiff knew of the dangers incident to work interstate commerce, the laws thus promulin said roundhouse and of the dangers incident gated constitute the exclusive standard by to the traveling or proceeding through said which litigation for injuries growing out of roundhouse and in and about the same; that the plaintiff knew of the condition of the light the handling of interstate commerce must be in said roundhouse during said times, both when adjudicated. Second Employers' Liability steam was being emitted or had been emitted Cases, 223 U. S. 1, 55, 32 Sup. Ct. 169, 56 L. from locomotives and when it was not being | Ed. 327, 38 L. R. A. (N. S.) 44; Seaboard Airemitted or had not been emitted; that the fore-line Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. going conditions referred to presented risks assumed by the plaintiff, and that whatever injury, if any, the plaintiff sustained in his fall into an engine pit in said roundhouse occurred and was the result of the risks understood, known, appreciated, and assumed by the plaintiff in his employment and work." 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Oberlin v. O.-W. R. & N. Co., 71 Or. 177, 142 Pac. 554. The principle is also laid down in Seaboard Airline Ry. v. Horton, supra, that since the federal Employers' Liability Act has expressly eliminated the assumption of risk in certain specified cases, the intent of Congress is plain that in all other cases such assumption shall have its former effect as a bar to action by the injured employé. It will be noted that the only limitation the statute in question places upon the defense of assumption of risk is that the by a violation of any statute enacted for the safety of employés. It is not pretended in the instant case that there was any violation of any safety statute involved. This situation leaves the defense of assumption of risk as it was at common law, for the purposes of this case. For a second separate defense the answer counts upon much of the same matter before described, and charges contributory negligence upon the part of the plaintiff. The reply traverses all of the new matter in the answer, and avers in substance that the way pursued by the plaintiff in going to the reg-injury shall not have been caused or affected istry desk was the usual, customary, and habitual way that the plaintiff and the de fendant's other employés took in going to the desk, that it was the way provided by the defendant for that purpose, and that there was no other way provided which was less dangerous, or in which the likelihood or danger of falling into the pits was less in degree than the way pursued by the plaintiff at the time of the injury. At the close of the plaintiff's case on the evidence introduced at the trial, the court granted a judgment of nonsuit on the motion of the defendant, and the plaintiff appeals. [3] Another proposition well established by the precedents is that the defenses of assumption of risk and of contributory negligence are separate and distinct in legal effect, although as applied in practice they may largely rest upon the same state of facts. The rule is thus stated in a note in 49 L. R. A. 33, 50, reporting the case of Limberg v. Glenwood Lumber Co., 127 Cal. 598, 60 Pac. 176, A. A. Smith, of Baker, for appellant. BURNETT, C. J. (after stating the facts as above). [1, 2] Without dispute, this action is "The doctrine of assumed risks obtains without necessary reference to the existence of negligence. If the servant, with knowledge of (Or. risk suggests affirmative action or volition by a defect in the master's premises, and of a dan- [ negligence. On the other hand, assumption of ger and risk incident thereto, continues in the service of the master without proper notice to the latter, he assumes the risk incident to the service and growing out of the existence of the defect, and this without regard to the degree of care which he may exercise in the performance of his labors. Texas & N. O. R. Co. v. Conroy (1892) 83 Tex. 214, 18 S. W. 609; Texas & P. R. Co. v. Bryant (1894) 8 Tex. Civ. App. 134, 27 S. W. 825. See, also, Probert v. Phipps (1889) 149 Mass. 258, 21 N. E. 370; Tuttle v. Detroit, G., H. & M. R. Co. (1887) 122 U. S. 189, 30 L. Ed. 1114, 7 Sup. Ct. Rep. 1116; Southern P. Co. v. Seley (1894) 152 U. S. 145, 38 L. Ed. 391, 14 Sup. Ct. Rep. 530; Sneda v. Libera (1896) 65 Minn. 337, 68 N. W. 36; Anderson v. C. N. Nelson Lumber Co. (1896) 67 Minn. 79, 69 N. W. 630; Wuotilla v. Duluth Lumber Co. (1887) 37 Minn. 153, 33 N. W. 551; St. Louis, Ft. S. & W. R. Co. v. Irwin (1887) 37 Kan. 701, 16 Pac. 146; Pennsylvania Co. v. Witte (1896) 15 Ind. App. 583, 43 N. E. 320." The annotations on this subject are continued in the case of Rase v. Minneapolis, etc., Ry. Co., 107 Minn. 260, 120 N. W. 360, 21 L. R. A. (N. S.) 138. The principle established by such cases is that assumption of risk is an implied condition of the contract between the employer and the employé, while negligence of the employé contributing to his hurt arises from his own tort; or, as expressed in Davis Coal Co. v. Polland, 158 Ind. 607, 62 N. E. 492, 92 Am. St. Rep. 319: "Assumption of risk is a matter of contract, express or implied, while contributory negligence is a matter of conduct." "If the defense of the assumption of risk is maintained, the question of the existence of contributory negligence does not arise, because, if plaintiff assumed the risks of the employ: ment, he cannot recover, even if he exercised the highest degree of care." [4] Lastly, it is sound doctrine that notice or knowledge and appreciation of the danger are indispensable to the assumption of risk. Winona v. Botzet, 169 Fed. 321, 94 C. C. A. 563, 23 L. R. A. (N. S.) 204. [5] With these principles in mind, the testimony given by the plaintiff and his single witness as to the circumstances of the accident is here set down in substance in narrative form. The plaintiff testified practically as follows: "The only thing calling a switch engineer into the roundhouse was the matter of registering. in the roundhouse about a month before the The desk prepared for that purpose had been house, the pits being about 4 feet deep where accident. The building was a 12-pit roundthe engines entered from the east. The floor in the house outside of the pits and between them consisted of tarred wooden blocks, black in color. There were four lights between the pits. I went into the roundhouse through the small door in the southeast corner. I usually The rule is thus stated in Ball v. Gussen- entered there. That was the customary way hoven, 29 Mont. 321, 74 Pac. 871: to enter. There was a door near the desk, but ed the east wall to near the center where the it was never used to my knowledge. I followdesk was opposite. That was my usual way of going, and the way pursued by other employés. It was more direct. One trip I made the other way, going along the south side between the wall and pit 12, and thence on the west side in front of the pits to the desk, I stumbled over wall. There were tool racks and closets there, a bucket that somebody left along the south and sometimes tools lying there. didn't give you so much room. In argument, the effort of the plaintiff seems to be to array the case of Oberlin v. O.W. R. & N. Co., supra, against the proposition that the defenses of contributory negligence and assumed risk are distinct. On that question the opinion there turned upon a matter of pleading, and assumption of risk was laid out of the case because not properly averred. The defense there was predicated on allegations of rules covering the activities of employés and certain specified violations of those regulations upon the part of the plaintiff. It was there said: "Where parties are free to contract as to the conditions and regulations under which they will prosecute an undertaking, disregard or disobedience of rules is referable to negligence, and is not properly classified under assumption of risk." "Disregard or disobedience of rules" implies negation which ex vi termini characterizes The closets The morning I was hurt I went along the east wall. When I got near the center I turned to go towards the desk. I hadn't particularly noticed the steam. There was steam, but when started towards the desk everything appeared all right. The light appeared all right. I thought I was right opposite the desk but the steam there confused me, and I stepped into one of those pits. The steam was extraordinary, more than I had ever contended with. before. I had no difficulty before in distinguishing the pits. This morning it was foggy. The pits all looked like the floor. From where I walked I thought I was between the pits. It looked just the same as the floor, and I stepped into one of the pits. It was black just like the floor. I had been in the roundhouse a great many times before and knew the pits were there. I know the building was not well lighted. The night be |