Jan. 1910]

Opinion Per FULLERTON, J.

in effect, that such lots should not be assessed in any sum unless the amounts that could be assessed on lots for actual benefits should not equal the cost of the improvement. This stipulation was entirely disregarded. The property in the assessment district was all assessed alike, without distinction between that which could be lawfully assessed for actual benefits, and that which could only be assessed under the stipulation. Whether the property actually benefited was assessed for the full amount of the benefits it received does not appear, and hence it does not appear whether the respondents' property is liable to assessment in any sum, much less does it appear that it is liable to an assessment of $6 per front foot. The respondents, therefore, are not estopped from questioning the validity of the assessment on their property by any act of their own or their predecessor in interest, and the present action is without merit.

The case is not altered by the fact that the stipulations contained in the petition were inserted in the appellant's contract with the city. The only provision applicable to the contractor was the second one above mentioned, relating to the price to be charged for excavating and filling private property, and this was a condition the city has the right to insert in any contract regardless of any agreement on the part of the property holders.

The judgment is affirmed.

RUDKIN, C. J., GOSE, and CHADWICK, JJ., concur.

[No. 8307. Department One. January 17, 1910.]

CHARLES HARRIS, Respondent, v. BROWN'S BAY LOGGING COMPANY, Appellant.1

RAILROADS OBSTRUCTIONS NEAR TRACK-NEGLIGENCE-EVIDENCESUFFICIENCY. It is actionable negligence to knowingly leave a skid, used for loading a donkey engine, so near the tracks of a logging railway that it was liable to be struck by a train of logs passing while men were working at the place and liable to be struck by the skid.

MASTER AND SERVANT CONTRIBUTORY NEGLIGENCE - APPARENT DANGERS-QUESTION FOR JURY. A section hand is not guilty of contributory negligence, as a matter of law, and does not have equal knowledge with the company as to the liability of a train of cars to strike a skid used to load a donkey engine and left near the track, where he testified that he did not know of the fact, he had worked for the company but a few hours, and knew nothing of the manner in which logs were loaded on the cars, while the foreman knew that it was liable to be struck by logs, although the engine could pass in safety.

MASTER AND SERVANT-SAFE PLACE-DUTY OF MASTER-INSTRUCTIONS. An instruction that the master owes the "positive" duty to provide its employees with a reasonably safe place to work is not objectionable as making the master an insurer.

MASTER AND SERVANT-CONTRIBUTORY NEGLIGENCE OBVIOUS DANGERS-INSTRUCTIONS. Where the contributory negligence of a new section hand depended upon whether he had knowledge or might have known that a skid near the track was liable to be struck by a passing logging train, a fact known to the company, it is within the issues and proper to give an instruction as to the duties of the parties where they do not stand upon an equal footing as to the obvious or apparent dangers.

SAME TRIAL-REQUEST FOR INSTRUCTIONS. An objection that an instruction as to the duties of a master where he and the servant do not stand upon an equal footing is misleading in not further instructing that there can be no recovery if both are equally ignorant of a danger, can only be made where there was a request for the further instruction.

DAMAGES-FUTURE PAIN AND SUFFERING. An instruction authorizing a recovery for such suffering and pain as the jury think prob'Reported in 106 Pac. 152.

Jan. 1910]

Opinion Per FULLERTON, J.

able from the testimony he would experience in the future, is not erroneous as failing to limit the recovery thereof to the damages which it is reasonably certain he will suffer.

TRIAL INSTRUCTIONS-REQUESTS. It is not error to refuse to give requested instructions covered in the general charge.

Appeal from a judgment of the superior court for King county, Ronald, J., entered June 15, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a section hand on a logging railroad. Affirmed.

Blattner & Heasty, L. F. Chester, and L. B. da Ponte, for appellant.

R. B. Brown (Allan Brant, of counsel), for respondent.

FULLERTON, J.-The respondent brought this action against the appellant for personal injuries. He had a verdict and judgment in the court below, and this appeal is taken therefrom.

The record discloses that the appellant is engaged in the logging business, and as a part of its equipment owns and operates a logging railway. On April 5, 1908, it employed the respondent to work on its railway as a section hand, instructing him to perform such work as he should be directed to perform by the section foreman. He was put to work by the foreman on the day of the accident shoveling the accumulated dirt and debris from a place on the track in front of an abandoned landing, the purpose being to clear the space around the ties at that point so that the track could be moved and thus straightened. While he was so at work a locomotive with a car attached came over the track to the landing for the purpose of carrying away a donkey engine which stood or was shortly thereafter brought to the foot of the landing. To facilitate loading the donkey engine, two skids were laid on the landing at right angles to the track, parallel to each other, and some eighteen or twenty feet apart. They were about thirty feet in length and so placed

Opinion Per FULLERTON, J.

[57 Wash.

that the ends next the track protruded beyond the landing to within a few inches of the edge of the car. The donkey engine was then hauled or "skidded" along the skids onto the car. After loading, the engine pulled away, leaving the skids as they were originally placed. The respondent and his companions then resumed work in front of the landing until the noon hour, when they went to dinner. Coming back from dinner, they resumed work at the same place, and while so at work a warning was given of the approach of a train loaded with logs, and the respondent, with others of the crew, climbed up onto the landing to escape the train, he taking a position between the skids some fifteen feet back from the track, and within four or five feet from the skid farthest away from the approaching train, where he turned and stood looking at the train as it was passing. On one of the trucks, possibly the third one from the engine, a log was left projecting over the edge of the truck. This log struck the skid near which the respondent was standing, throwing the end struck forward and the other end backward. The end as it was thrown backward struck the respondent, crushing his leg..

The appellant first contends that no actionable negligence on its part is shown, but we think this contention hardly tenable. The negligence consisted in placing the skids so near the track that they could be struck by a passing train, putting the respondent to work on the track in front of them, and then running a train down upon him, knowing that he was liable to move between the skids in getting out of the way of the train, without warning him of the danger of so doing. The accident was not what the law calls an unforeseen accident. On the contrary, the testimony of the appellant's foreman makes it clear that he foresaw the possibility of a log on the train striking the skids. In fact, he testifies that he saw that the skids were far enough back to allow the engine to clear, and anticipated no trouble from a log striking them, as they would merely be pushed out of the way without danger of derailing the train or causing it to lose

Jan. 1910]

Opinion Per FULLERTON, J.

its load of logs. Since, therefore, the appellant knew the skids were liable to be struck by a train loaded with logs, it was bound to anticipate danger to its employees if they stood between or near the skids when a trainload of logs was passing, and the accident was one that could have been foreseen by the exercise of ordinary care, rather than incapable of being foreseen.

As its second ground of error, the appellant contends that the respondent had equal knowledge with the appellant of the existence of the danger to which he exposed himself, and consequently took the risk of injury upon himself. But the premise here assumed is contrary to the facts, as we read the record. It is true that the respondent had the opportunity of knowing, and could have known, had he looked, how far the skids projected beyond the edge of the abandoned landing, but whether he knew or ought to have known that the loaded cars were likely to strike them is a disputed question in the record. He himself says that he did not know they were likely to be struck, and the record does not make the contrary so apparent that the court is required to say, as a matter of law, that he should have known. He had worked for the appellant only a few hours before the accident, and, so far as it appears, knew nothing of the manner in which the logs were loaded on the cars, or how far they would be likely to project beyond the edge of the car trucks. At best, therefore, the question whether the respondent was guilty of contributory negligence in standing in the place he did stand, was for the jury.

To sustain this contention, the appellant cites and quotes largely from the case of Anderson v. Inland Telephone etc. Co., 19 Wash. 575, 53 Pac. 657, 41 L. R. A. 410, but the cases are not parallel. In that case an employee of the telephone company was injured by coming in contact with a guy wire which formed a part of the equipment of an electric railway company operating an electric railway along the street. on which the telephone company's wires were stretched. The