tiff had failed to show that the relationship of master and servant existed between her and defendant; and (2) that plaintiff was guilty of contributory negligence in not heeding the warning given her to get out of the car. This motion was overruled, and, at the close of the entire case, the defendant requested the court to direct a verdict for the defendant, which request was also refused. These rulings are now assigned as error.

The record shows that, when Pugmire applied to defendant company for employent, O. D. Gefeke, who was, at the time, inspector of outfit cars for defendant, and who also had charge of the employment of cooks and managers on such cars, inquired of Pugmire whether he had a wife, and if he wanted her to be on the cars with him. Pugmire answered that he had brought his wife (plaintiff herein) with him, and stated that he wanted her to accompany him, at the same time pointing her out to Gefeke. Gefeke then stated to Pugmire that if he wanted his wife to go along they would have to sign the release hereinbefore referred to. Gefeke was called as a witness by defendant, and testified, in part, as follows: "The duties of an outfit manager are: To cook, prepare meals, order supplies, etc. As a rule we inquired whether the particular individual happened to be a cook or not. If he could not cook, then he had to furnish the cook. Where his wife accompanied him, it was taken for granted that she could cook and would assist in the work; and that was why the wife was permitted to go. When a man had his wife with him, if he could not cook, and she did the cooking, it was all right with me, and with the Short Line Company. We would not have employed Pugmire if he had not provided the cooking in some way." Plaintiff testified that from the time she arrived at Williams on the outfit cars in question (July 19, 1905) until July 22d, the day of the accident, she "cooked the food for the men of the Oregon Short Line (defendant)"; that those men took their meals at the car; and that she "did the cooking, dish washing, and straightening up around there in general"; that on two occasions the foreman of this crew of men gave her orders

respecting the kind of food she was to cook and prepare for men; and that she carried out the orders.

the

It thus clearly appears-in fact, there is no conflict in the evidence on this point-that plaintiff cooked for the employees of the defendant, washed the dishes, cleaned up, and took care of the commissary and dining car, and in so doing acted as a substitute for Pugmire, and that, too, with the knowledge and approval of the defendant, and that it received the benefit of her labor. The plaintiff was not a trespasser or mere licensee, but was rightfully in the car doing work for the defendant, and, as stated, with its knowledge and acquiescence. And, furthermore, the evidence introduced by defendant shows that one of the conditions upon which it employed Pugmire was that, "if he could not cook, then. he had to furnish a cook." The representative of the company whose duty it was to employ managers for defendant's outfit cars, and who employed Pugmire, testified: "We would not have employed Pugmire if he had not provided the cooking in some way." In other words, under the terms of his employment, Pugmire was obliged to either do the cooking himself or get some one to do it for him. Whether the plaintiff was in the direct employment of defendant or indirectly as the assistant of Pugmire can have no bearing on the question, because, in either event, according to the great weight of authority, the relation of master and servant existed between plaintiff and defendant within the meaning of the rule requiring a master to exercise ordinary care to prevent injury to his employees. Therefore, under the facts and circumstances disclosed by the record in this case, defendant owed plaintiff the same duty for her safety that it owed to Pugmire and its other employees. And this, too, notwithstanding the fact that plaintiff was not enitled to pay from defendant for her services. (Wilson v. Sioux Con. Min. Co., 16 Utah 392, 52 Pac. 626; Ringue v. Oregon Coal Co., 44 Or. 407, 75 Pac. 703; Tennessee Coal Co. v. Hayes, 97 Ala. 201, 12 South. 98; Rummell Ar. v. Dilworth, 111 Pa. 343, 2 Atl. 355, 363; Haluptzok v. Railway Co., 55 Minn. 446, 57 N. W. 144, 26 L. R. A. 739;

Aga v. Harbach, 127 Iowa 144, 102 N. W. 808, 69 L. R. A. 255, 109 Am. St. Rep. 366; 4 Am. & Eng. Annotated Cases, 441; Anderson v. Guineau, 9 Wash. 304, 27 Pac. 449; 1 Shear. & Redf. Neg., 182.)

The contention that there was no evidence introduced to show that the accident in which plaintiff received the injuries complained of was due to the negligence of the defendant company is not borne out by the record. The undisputed evidence shows that the outfit cars in which plaintiff was injured were fitted up and placed and stationed by defendant. on one of its side tracks for the use and occupation of plain tiff and certain employees of the company. And plaintiff had a right to assume that defendant would exercise ordinary and reasonable care to prevent these cars from being run into by its switch engines and passing trains. The record, as it now stands, shows that an engine propelled on defendant's railroad tracks was, without warning or signal, run onto this side track and into the outfit cars. It also appears from the undisputed evidence that, when plaintiff discovered that the engine mentioned was about to collide with the outfit cars, she immediately endeavored to leave the car, but was unable to do so before the collision. Under these facts and circumstances, the question of neligence on the part of the defendant company and of contributory negligence on the part of the plaintiff were questions of fact for the jury to determine; and the jury having, under proper instructions by the court, found against defendant on these issues, the findings are final and cannot be disturbed by this

court.

The defendant requested the court to instruct the jury that, in case they found that the release herein before mentioned was "entered into without fraud or deceit on the part of the defendant, then the plaintiff would be bound by the terms of said release and would not be entitled to recover in this action," etc. The refusal of the court to so instruct

the jury is now assigned as error. We think this assignment is without merit. The law is well settled that a master cannot, by contract in advance, absolve himself from liability

(which would exist if no contract were made) for injuries to his servant caused by the master's own negligence. The ground upon which such contracts are held to be void is that they are against public policy. The reason for the rule is well stated in the case of Railway Co. v. Spangler, 44 Ohio St. 471, 8 N. E. 467, 58 Am. Rep. 833, wherein it is said.

"The policy of our law being well settled, it only remains for us to inquire whether railroad companies may ignore or contravene that policy by private compact with their employees, stipulating that they shall not be held to a liability for the negligence of their servants which public policy demands should attach to them. The answer is obvious. Such liability is not created for the protection of the employees simply, but has its reason and foundation in a public necessity and policy which should not be asked to yield or surrender to mere private interests and agreements."

The same question was before this court in the case of Stone's Adm'r v. Union Pac. Rd. Co., 89 Pac. 715, and in an opinion written by Mr. Justice Straup it is said:

"The decided weight of authority in this country sustains the proposition that a contract whereby an employee agrees in advance to relieve his employer from liability for injuries resulting from the latter's negligence, or that of his employees, when he is, by the law of the jurisdiction, responsible for their negligence, is void as against public policy."

Numerous authorities are cited in the opinion, which declare the same doctrine.

During the progress of the trial the plaintiff was asked, upon cross-examination, if she and Pugmire were married. Objection was made to this question and others of like character on the ground that they were immaterial and not crossexamination. The objections were sustained, and exceptions were noted by defendant. The rulings of the court in sustaining the objections are assigned as error. We think the court did right in sustaining the objections. The defendant's liability or nonliability in no way depended upon the marital relationship existing between plaintiff and Pugmire, but depended upon the question of defendant's negligence and upon the relationship existing between it and plaintiff at the time the accident occurred. If Pugmire were suing the company

to recover damages for the loss of services of Mrs. Pugmire as his wife, the relationship existing between them might be material; otherwise not.

The next error assigned relates to the admission of evidence, over defendant's objection, of the diseased condition of plaintiff's eyes since the collision. It is contended that since plaintiff enumerated in her complaint the injuries for which she claimed damages, and made no averment of any injury to her eyes, it was error for the court to admit evidence of their diseased condition. The injuries alleged in the complaint are: (1) A violent blow upon the head cutting the scalp in four places; (2) back sprained and wrenched, so that the same is still sore and lame; (3) arms bruised and sprained; (4) right limb injured and sprained; and (5) internal injuries causing serious injury to the female organs. And the result or consequences of these injuries, as alleged in the complaint, are: (1) That the plaintiff has suffered, and for all time will suffer, great bodily and mental pain and anguish; (2) that she has been, and for all times will be, incapacitated from performing her daily work as a cook and housewife; and (3) plaintiff has been, and for all time wil be, permanently crippled and scarred. Here we have each specific injury, as well as the consequences flowing therefrom, upon which plaintiff relies for recovery, set out in detail and minutely described. It will be noticed that no mention is made of any injury to plaintiff's eyes; nor is there any allegation in the complaint from which it could be reasonably inferred that her eyes were injured at the time the collision in question occurred, or that they afterwards, as a result of the injuries received, became diseased and the sight impaired. When the evidence on this point was offered, and objections made thereto, counsel for plaintiff stated to the trial court that they did not claim that there "was any direct injury to her eyes;" and, further, that "the disease has developed even since this suit was commenced with more or less rapidity." If plaintiff, at the time she commenced her action, was not aware that she had received injuries which later on would produce a disease to her eyes, how can it be said.