PETERSON v. PALLIS

plied repeal of the earlier act there would exist an inharmony in the body of the law, irreconcilable on any conceivable theory reasonably compatible with the purpose of the later act."

[2] This may be taken to be the settled law of this state. Reading, then, the two statutes together, we find that the senior statute gives a right of action to a person injured by some act or omission of the county, while the junior statute provides simply and solely that the county shall not be liable for the acts of the sheriff while engaged in his official duties as therein defined. We find no such irreconcilable repugnancy be

tween the two acts as to lead to the belief

that the junior act superseded or was intended to supersede, the senior act, and therefore hold that the senior act has not been repealed.

[3] Nor was the deputy, Buchet, at the time of the accident complained of, in the performance of any official act necesengaged sary to be performed by a sheriff or his deputy, and the appellant cannot in this case shelter itself under section 3987, supra. The deputy sheriff was in fact engaged at the time of the accident in testing or repairing the automobile belonging to King county, a work which could have been done by any person having the requisite skill, and his commission as deputy sheriff cast no shield or cloak over him. His acts were the acts of an ordinary mechanic, such as King county might have hired at the nearest garage for such a duty, and the county can claim no immunity because its mechanic in this instance was commissioned as a deputy

sheriff.

Finding no error, the judgment of the trial court will be affirmed.

MAIN, C. J., and MITCHELL, FULLERTON, and PARKER, JJ., concur.

PETERSON v. PALLIS. (No. 14779.) (Supreme Court of Washington. July 16, 1918.) 1. MUNICIPAL CORPORATIONS 122(1) -OR

DINANCES-PLEADING-SUFFICIENCY. Plaintiff, injured in collision between automobile and motorcycle, who alleged that defendant was driving on the wrong side of the street and at an unlawful speed, and by title pleaded ordinance prohibiting speed of over 20 miles per hour made a complaint good against motions to strike or make more definite and certain, since Rem. Code 1915, § 291, requires judicial notice to be taken of terms of an ordinance pleaded by title.

2. MUNICIPAL

1021

Court, King County; Everett Smith, Judge. Department 2. Appeal from Superior Action by Edward Peterson against Chris Pallis. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Ryan & Desmond, of Seattle, for appellant. Oscar G. Heaton, of Seattle, for respondent.

CHADWICK, J. This action arises out of a collision between plaintiff's motorcycle and defendant's automobile. Trial was had resulting in a verdict in favor of plaintiff. signments of error. The first is that the court erred in overruling the motion to strike certain matter from the amended complaint and thereafter erred in denying defendant motion to make the complaint more definite

It will be necessary to notice but two as

and certain. Plaintiff alleges:

larly as follows, to wit: The plaintiff is in the "That said accident happened more particuemploy of the Seattle Construction & Dry Dock Company, as a ship carpenter and received a salary of $7.50 per day of ten hours; that on employés of said company ceased work at noon; the day in question, which was Saturday, the Whatcom avenue at the hour above mentioned; that a large number of them were crossing said that plaintiff was on the south side of said body faster than three or four miles per hour, and of men, on his motorcycle, and was not going had reached a point past the middle or east of the middle line of said street and was just in the act of turning north upon the east side of gently and carelessly and at an unlawful rate said street when the defendant, driving neglierly side of said avenue, struck plaintiff's moof speed in a southerly direction upon the easttorcycle, turning it around in the opposite direction from which it was going, and knocked plaintiff off said motorcycle and ran completely over said plaintiff and his said motorcycle."

[1] This was followed by a plea of Ordititle. The statute, Rem. Code, § 291, provides nance No. 24597 of the city of Seattle, by that when an ordinance is so pleaded the court shall take judicial notice of the ordinance and its tenor and effect. It is provided in the ordinance that automobiles shall not be driven at a speed greater than 20

miles per hour between street intersections. The legal effect of the pleading is that the automobile was driven at a greater speed than 20 miles an hour. The allegation there fore that the automobile was driven at an unlawful rate of speed and upon the easterly side of the avenue made the complaint good as against a motion to strike and a motion to make more definite and certain.

[2, 3] The court instructed the jury that it might find a verdict against the defendant if it found from the evidence that he was highway. automobile driving his machine on the wrong side of the for two reasons. This instruction was erroneous was not driving his machine on the wrong One is that the defendant Iside of the highway. That he was on the wrong side of the highway at the time the accident occurred may be admitted, but the testimony shows that he turned his machine

CORPORATIONS 706(8) STREETS-COLLISION-INSTRUCTIONS. Where defendant driving an turned from the right-hand to the left-hand side of the road to avoid other vehicles, it was erroneous to instruct to find for plaintiff "if defendant was driving on the wrong side of the road." 3. MUNICIPAL CORPORATIONS 706(6) STREETS-COLLISION-NEGLIGENCE. It is not negligence per se to drive an automobile on the left-hand side of a city street.

This is as near a statement of fact as one might hope to draw from a witness by written interrogatories, and, while not entirely free from the objection that it contains conLeopold M. Stern, of Seattle, for appel-clusions of the witness, it will be at once dislants. Grinstead & Laube, of Seattle, for covered that the conclusions were of fact respondent.

MACKINTOSH, J. Lundgren was a sailor employed by the Pacific Coast Steamship Company on its ship the Ravelli, moored at the dock at Seattle. He was a member of what is known as the "hold gang" at the time when the alleged cause of injury accrued. The duty of that gang at the time was to receive certain iron rods or shafting as they were unloaded from the dock to the ship and to stow them in the hold. These rods, or shafting, were 4 inches in diameter and about 15 feet in length. They were swung from the dock into the hold by means of a sling, an appliance consisting of a common %-inch chain with a ring on each end, one of the rings being smaller than the other to permit it, and the end of the chain at

rect interrogatories made to the Natatorium Company or to the Saxony Knitting Company? (To which was interposed the objection that the interrogatory called for a conclusion of law on the part of the witness, which objection might well have been sustained by the trial court.) A. I would say that the Natatorium Company bought the goods and the sale was made to it." A vitally different sort of conclusion, it will be observed, from those contained in the quoted testimony on direct examination, and one which in no way lessens the force of his direct testimony. Nor was this the only corroboration of the witness Davidson. The letter of October 13, 1916, written by respondent's president, even after considering his explanation that his only knowledge then of the transaction was that received from Mr. Drake, carries great convincing weight, and was suffi-tached thereto, to pass through the larger cient corroboration of Mr. Davidson, and of the testimony given by Mr. Drake on direct examination to entitle the appellant to pre

vail.

We are forced to conclude that the evidence preponderates against the findings of the trial court; and its judgment will be reversed, and the cause remanded, with directions to enter judgment in favor of the appellants and against the respondent as prayed for in the appellants' complaint.

ring, thus making a slip noose to hold the load when placed around it. The noosing of the shafting was the work of longshoremen employed on a flat car on which the shafting was brought to the ship's side. The shafting when noosed was raised from the flat car and lowered into the hold by means of a winch operated from the ship's deck. It was the duty of the hold gang to signal the winchman when he had lowered the shafting to about 5 feet from the floor of the hold; then they would place their hands upon the load

MAIN, C. J., and MITCHELL and PARK- and push it into its proper place for stowage, ER, JJ., concur.

when the winchman would then further lower it, releasing the noose, and swing the tackle back for another load. Each load con

LUNDGREN v. PACIFIC COAST S. S. Co. sisted of about 15 bars of a weight of about

An experienced "holdman" receiving shaftings in slip noose lowered by winch, his duty being to push load to proper place as lowered, assumed risk of shaftings rolling and crushing his hand by reason of loose noose; the danger being open, obvious, and apparent, and he know

ing the danger.

2. MASTER AND SERVANT

220(7)—AsSUMPTION OF RISK-CONTINUING WORK AFTER COMPLAINT.

Where plaintiff was aware of danger of doing work in a certain way and complained, and the foreman gave instructions that it should be done another way and left the premises, but his directions were not obeyed, and plaintiff continued to work until injured, knowing that the directions were being disobeyed, he cannot claim that he was relying upon the directions given by the foreman.

Department 2. Appeal from Superior Court, King County; John S. Jurey, Judge. Action by Louis Lundgren against the Pacific Coast Steamship Company, a corporation. Judgment for defendant, and plaintiff appeals. Affirmed.

Geo. B. Cole and John Wesley Dolby, both of Seattle, for appellant. Farrell, Kane & Stratton and Stanley J. Padden, all of Seattle, for respondent.

2 tons. At the time of Lundgren's injury, he had been at work for about three hours or

more; the shafting having been loaded and stowed away during this time in the same manner as the load which caused the injury. This particular load came into the hold and was stopped by the winchman at a position about 5 feet above the floor. Lundgren then ordered it lowered until one end rested on the hold bottom, thereupon placing his hands upon the shafting with the 'intention of Swinging them into position immediately above the place of stowage. As he did so, the chain on the shafting which had not been clamped down tightly slipped, causing the load to roll and catch his fingers between the bars. He claims that had the longshoremen clamped the sling down close to the shafting there would have been no slipping and "it would have never come down. That would not have dropped 7 inches." Lundgren had time to see each load as it came into the hold and to notice the condition of the sling before he placed his hands upon the shafting. He testified that he saw the particular load in question coming in and directed its landing, and that he knew the position of the chain on the load. He knew that the chain and ring were in the same position they had been many times before, and that when in

that condition the sling would slip and the Williams v. Spokane, 73 Wash. 237, 131 Pac. shafting would turn. He was an expert in 833; Waterman v. Skykomish Timber Co., this work, having worked at it for many | 65 Wash, 234, 118 Pac. 36. years, and he had on other loads that day used precautions to avoid injury on account of their condition.

[2] The appellant, however, attempts to evade the operation of the rule of assumption of risk by establishing a promise by the foreman to alter conditions and by his assurance of safety. The evidence does not show any absolute promise to repair, nor does it disclose any assurance of safety, nor did the appellant continue in the work relying upon the directions given by the foreman to the longshoremen; for he knew that those directions were not being followed, that no attention was being paid to them by the loaders, and that the foreman was not present to enforce them, and yet he continued under the unaltered conditions unloading for an hour after the directions had been given and disobeyed. "A simple protest by the servant, not followed by the assurance that the diffi

He also testified that he had told the foreman in charge of the entire operation that "some one was going to get hurt," and that the foreman had ordered the longshoremen "to go and get some strands of rope yarn. You have got to put something between that shafting." This was for the purpose of keeping the rods or shafting from rolling when lowered. After these directions of the foreman, the longshoremen continued to load as theretofore, paying no notice to the directions, and the foreman left the scene of the operation to attend to his duties on other parts of the dock. After his conversation with the foreman, Lundgren continued to receive loads sent in the same way as the pre-culty will be remedied, will not place the revious ones and unloaded from 50 to 60 more loads, taking about an hour's time, in the same way as he had done before his conversation with the foreman.

At the close of the appellant's case, the respondent challenged the sufficiency of the evidence to warrant its consideration by the jury, which challenge was sustained, and from this disposition of the cause the appellant prosecutes this appeal.

sponsibility upon the master." Labatt, Master and Servant (2d Ed.) vol. 4, p. 3854, § 1343; 26 Cyc. p. 1211; Mattson v. Griffin Transfer Co., 90 Wash. 7, 155 Pac. 392. There having been no promise to repair, and the appellant not having been induced to continue the work relying upon the foreman's directions, there is nothing in the case to mitigate the full operation of the rule of assumption of risk, and for that reason the judgment of the lower court will be affirmed.

MAIN, C. J., and MOUNT, CHADWICK, and HOLCOMB, JJ., concur.

HERRETT v. PUGET SOUND TRACTION,
LIGHT & POWER CO. (No. 14637.)
(Supreme Court of Washington. July 9, 1918.)
1. STREET RAILROADS 117(5) CROSSING
ACCIDENTS-NEGLIGENCE-TAKING CASE TO

JURY.

[1] Among the affirmative defenses pleaded was that of assumption of risk, and in our view of the facts we are satisfied that this defense is fatal to the appellant's hope of recovery. All the conditions complained of by him were open, obvious, and apparent, and all the dangers to which he was exposed were fully appreciated by him, and he knew their imminency. From his years of experience he was thoroughly familiar with the entire operation and understood each detail connected with it, and from his hours of work on this particular job was absolutely Where it reasonably appears from plaintiff's acquainted with the dangers attendant upon evidence, in an action for injuries, in collision the particular work in hand. His own testi- between a street car and automobile, that a findmony makes it apparent that he was in fearing of negligence on the part of defendant would of the very thing which actually happened. be a mere guess, it was not error to take case Under these facts, he must be held to have 2. STREET RAILROADS 99(13) CROSSING assumed the risk of these dangers which ACCIDENTS-ACTIONS FOR INJURY-CONTRIBwere open, obvious, and apparent, and which UTORY NEGLIGENCE. Where the driver of an automobile, in crosswere necessarily incident to the work, and ing a wide street was struck and injured by a this is true even though these dangers may street car, which he could have seen approaching have resulted from the negligence of the em- in time to have avoided the collision had he lookployer. "The servant assumes all the ordi- ed, he was guilty of contributory negligence. nary risks of service and all the extraordi- 3. STREET RAILROADS 117(24) — CROSSING ACCIDENTS-ACTIONS FOR INJURY-TAKING nary risks, i. e. those due to the master's THE CASE FROM THE JURY. negligence which he knows and the dangers of which he appreciates." Labatt, Master and Servant (2d Ed.) vol. 3, p. 3188, § 1186. See, also, Engirbritson v. Tri-State Cedar Co., 91 Wash. 279, 157 Pac. 677; Sainis v. Northern Pac. Ry., 87 Wash. 18, 151 Pac. 93; Kelly v. Cowan, 49 Wash. 606, 96 Pac. 152;

from jury.

In an action against a street railroad for injuries to plaintiff from collision at a street crossing, where plaintiff's evidence showed that he was guilty of contributory negligence precluding recovery, it was not error to take the case from the jury.

Department 1. Appeal from Superior Court, King County; John J. Jurey, Judge.

Action by A. U. Herrett against the Puget | mentum of the car to a point variously esSound Traction, Light & Power Company. timated at from 45 to 70 feet from the point Judgment for defendant, and plaintiff ap- of impact. peals. Affirmed.

Winter S. Martin and Ray M. Wardall, both of Seattle, for appellant. Jas. B. Howe and H. S. Elliott, both of Seattle, for respondent.

TOLMAN, J. Action to recover for personal injuries sustained in a collision between the appellant's automobile and a street car operated by the respondent. At the con

clusion of the appellant's evidence the trial court, upon motion of the respondent, granted a nonsuit, from which this appeal is prosecuted.

[1] The appellant assigns error upon the granting of the motion for nonsuit, and the judgment dismissing his case, and relies up

on the case of Richmond v. Tacoma R. & P. Co., 67 Wash. 444, 122 Pac. 351, for a reversal. In that case Judge Parker, speaking for the court, says:

jury in believing these facts, argument seems "The evidence being sufficient to warrant the unnecessary to demonstrate that the question of appellant's negligence was for the jury to of the street crossing, the presence of the other determine. The speed of the car, the presence car stopped at the crossing to let off and take on passengers, the delay in any attempt to check the speed of the car until it was practically upthe delay in giving any signal of its approach on the crossing at the side of the other car, and until about that time, it seems to us leaves nothing to be argued upon the question of the appellant's negligence, except such argument as might be properly addressed to the jury. Clearly, this branch of the case does not present a question of law for the court to decide."

Not so here. In this case there was no

The evidence shows substantially the following state of facts: The appellant had removed to a point in the city of Seattle, somewhat north and beyond the place of the accident, a few days before his injury, and was not very conversant with the streets upon which the street cars were operated in that part of the city. On the morning of February 24, 1916, the appellant was driv-direct evidence of excessive speed. The aping his automobile south on the right-hand side of Stone Way, which is a north and south roadway, and one of the main thoroughfares for north and south traffic in that particular district of Seattle. North FortyFifth street runs approximately east and west, crosses Stone Way substantially at right angles, and respondent operates there on its outgoing Green Lake car line, running single and electric street cars thereon weighing between 40,000 and 50,000 pounds. Stone Way is 90 feet wide, and North Forty-Fifth street is 70 feet wide between property lines. Stone Way is divided by a parking strip in the center, leaving an 182 foot roadway on each side. At the northwest corner of the intersection of these streets there is a store building, extending to the property line on Forty-Fifth street, and having a frontage on Stone Way of approximately 50 feet. North of this building is a garage built in an L shape, having a frontage on Stone Way of approximately 40 feet, and also a frontage on North Forty-Fifth street to the west of Stone Way. As appellant drove south on Stone Way at about 7 o'clock in the morning on the day in question on the west or righthand side of the street, and approached the intersection of North Forty-Fifth street, passing the garage, he slowed down to 12 or 15 miles an hour, sounded his horn, looked to the right when he reached the corner, says he saw no car coming, and continued on directly south in a straight line across the car track, at which point he was struck by a Green Lake car operated by the respondent, and received the injurtes complained of; his automobile being struck approximately in the center, and carried by the mo

pellant does not attempt to say at what
speed the street car was traveling, as he says
saw it only when it was upon him. None
of the witnesses who were in the garage
attempted to say more than that the street
cars at that point usually approached at
And the wit-
about 20 miles per hour.
ness Carson, who was 400 to 500 feet east
of the point of collision, traveling west di-
rectly toward the approaching street car,
testified that his head was down; that he
saw neither the street car nor the automo-
bile until his attention was attracted by
the crash of the impact; then, looking up, he
saw the street car still moving toward him
carrying the automobile on its fender; and,
more from the distance he thought it trav-
eled before being brought to a stop than
from what he could observe of its move-
ment, he expressed the opinion that the
street car was traveling at 25 to 30 miles
per hour at the time of the collision, which
he did not see. We think the only evidence
in the case from which the jury might have
found that the street car exceeded the law-
ful rate of 20 miles per hour was the evi-
dence that it traveled from 45 to 70 feet
after the impact before being brought to a
stop. In the light of the many elements be-
sides that of the speed at which it was trav-
eling, which might enter into and affect the
stopping of the street car, it may reasona-
bly be held that from such evidence a find-
ing by the jury would be a mere speculation
or guess. Nor have we, as in the Richmond
Case, any evidence of another car passing
or stopping upon a parallel track. Such
fact, with the necessity for checking the
speed of the approaching car to avoid injury
to persons alighting or about to board the