cause of her delay in taking action after she had ascertained that she had been defrauded. But on this question also we think the record is against the appellant. While it appears that some three months elapsed between the date her suspicions were first aroused and the time she caused the land to be surveyed, it also appears that her first information was very indefinite, that it was then just at the beginning of winter, and that she acted with reasonable promptness as soon as the weather became more clement. Indeed it could hardly be said that she had any actual knowledge until after the survey was made, and it is not complained that she has shown any lack of diligence since that time. In these respects the case differs from that of Eldridge v. Young America Min. Co., 27 Wash. 299, 67 Pac. 703, relied upon by the appellant.

Finally, it is contended that the action should be dismissed because the proofs and judgment do not correspond with the allegations of the complaint; in other words, that there is a variance between the allegations and the proofs. But we think the contention without merit also. The plaintiff did allege, it is true, that Vermilye was the agent of Gloyd, and made the false representations on his behalf, and it is equally true that she failed in her proofs as to that isuse. But she also alleged facts sufficient, if proven, to entitle her to recover against Vermilye, and as to these facts her proofs were ample. She cannot be denied the remedy her proofs warrant merely because she claimed too much.

The judgment appealed from should be affirmed, and it is so ordered. Neither party will recover costs.

(44 Wash. 1)

BROWN v. NORTHERN PAC. RY. CO. et al.

(Supreme Court of Washington. Sept. 22, 1906.)

1. MASTER AND SERVANT-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE — OPERATION OF RAILROADS.

A locomotive engineer ran his engine through yards at a speed of eight miles an hour, and collided with an engine switching on the main track. Day was breaking and there was some light, and while some witnesses testified that they saw no light on the switch engine, none testified positively that there was no light. It was shown that a rule of the road required trains to pass through yards under full control, which meant at such speed as would enable the engineer to stop within his vision, and that the engineer's unobstructed view before reaching the scene of the accident was about 700 feet. Held, that he was guilty of contributory negligence.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 766, 1121, 1122.]

2. APPEAL-HARMLESS ERROR PLEADINGSAMENDMENTS.

Where an action for injuries to a servant was determined against plaintiff solely on the ground of contributory negligence pleaded before trial, he could not complain of amendments of the answer during trial, whereby assumption of risk and the negligence of fellow servants were set up.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4106-4109.] 3. MASTER AND SERVANT-RULES-SERVANTSDUTY TO OBEY.

An employé is bound to obey all the reasonable rules and instructions of the master with reference to the conduct of the business. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 759-762.] 4. NEGLIGENCE-QUESTIONS FOR JURY.

When there is no room for difference of opinion in the minds of reasonable men as to the existence of contributory negligence, the case should be taken from the jury.

[Ed. Note. For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 277-302.]

5. APPEAL HARMLESS ERROR REMARKS OF COURT.

In an action for the death of a servant, the court announced that the motion for nonsuit would be denied, but subsequently, after withdrawal of the jury, the motion was argued by both sides, and a nonsuit granted. During the argument, counsel for defendant stated "If the court will sustain my motion now or hereafter, I shall do my best, and I promise in the presence of my Maker to take care of plaintiff and her children for the rest of their life, and I have yet to have a recommendation in such a matter turned down at the office." Held, that though the remark was improper, it was ground for reversal, the nonsuit having been proper on the evidence, and it not being presumable on appeal that the trial court had been influenced improperly by the remarks of counsel.

no

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4135.]

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by Mary E. Brown, in her own behalf, and as guardian ad litem of Bessie Brown and others, against the Northern Pacifle Railway Company and others. From a

judgment in favor of defendants, plaintiff appeals. Affirmed.

Barnes & Latimer, for appellant. Edward J. Cannon, for respondents.

HADLEY, J. This is an action to recover damages for the death of William A. Brown. The suit was brought by Mary E. Brown, the surviving wife of the deceased, in her own behalf, and also as guardian ad litem in behalf of the minor children of herself and deceased. The Northern Pacific Railway Company, Edward Bosworth, and Alex. Walker were made parties defendant. Brown met his death in a railway collision on the Northern Pacific Line, and Bosworth and Walker were respectively the conductor and engineer of the train with which Brown's train col

lided. The complaint charges negligence against all of the defendants. The answers put in issue the essential allegations of the complaint, and interposed the defense of contributory negligence. At the trial certain amendments to the answers were permitted, which need not be explained at this time. The cause came on for trial before a jury and at the close of the testimony submitted by the plaintiff, the defendants challenged the sufficiency of the evidence to sustain a verdict for the plaintiff, and moved that the cause be withdrawn from the jury, and judgment entered in favor of the defendants. The motions were granted on the ground that the evidence conclusively showed contributory negligence on the part of the deceased. Judgment was accordingly entered, and the plaintiff has appealed.

The principal question involved is that of contributory negligence, and it is assigned that the court erred in sustaining the challenge to appellant's evidence and in taking the case from the jury. The evidence discloses the following facts: At the time of the accident the deceased was the head engineer in charge of an extra freight train, known as "No. Extra 68." The train was being drawn by a small standard engine in charge of the deceased, and also by a large consolidated engine immediately behind the small one, which was in charge of another engineer. The deceased had charge of the air, and was in sole control of the train. This train had proceeded from Hope, Idaho, to Trout Creek, Mont., where the accident occurred. At Hope the deceased's train was passed by regular freight train No. 54, which was going in the same direction, and which proceeded to Trout Creek under orders, where it arrived at 2 a. m. At Trout Creek the crew of No. 54 were under orders to make more track room in the yards, by moving cars from one track to another, and they were so engaged when the collision occurred. Some 10 or 15 minutes after No. 54 left Hope, the deceased's train followed it to Trout Creek, and it was while this train running through the yards at the latter place

was

at 2:30 a. m. that the accident occurred. The engine of No. 54 was, at the time, engaged in drawing cars from a side track out upon the main line preparatory to replacing them upon side tracks so as to make more yard room. The head of the engine was toward the cars that were moving, and the engine was drawing the cars after it as it moved backward with its rear or tender toward the west, from which direction the deceased's train came. As the latter train approached from the west its head engine, in charge of the deceased, struck the tender of the engine engaged in switching, and as a result of the collision the deceased lost his life. Trout Creek was a terminal on the railway line, so called, because it was the end of a division of the road, and extensive yards and side tracks were there provided for terminal purposes. The deceased had been on this run for some time. and was therefore aware that the train was approaching and running through terminal yards. As an engineer, he was required to be conversant with the rules of the railway under which all engineers and train men operated. One of these rules provides that all trains must approach and pass through yards under full control. According to the testimony of plaintiff's witnesses, "under full control" means that the train must be reg ulated at such speed as will enable the engineer to stop it within his vision, no matter how short a space that may be. One witness expressed the meaning of the rule as follows: "If I can stop in going 20 miles an hour in plenty of time, or be able to stop in 10 feet if I had to." It was also testified that the engineers of extra trains are at any time of day or night charged with knowledge that there is liable to be an obstruction upon the main line within terminal yards, and that when an engineer is approaching any place where he thinks, or has reason to know, that there may be an obstruction on the main line, it is his duty to arrange his speed in accordance with the distance of his vision. Fairly stated the evidence shows the speed of deceased's train at the time of the accident to have been at least 8 miles an hour, and the distance of unobstructed view before reaching the scene of the accident about 700 feet. The time was 2:30 a. m. on the 13th of June. and the location was an elevated one in the mountains. Day was beginning to break, and although it was not yet fully light there was some day light. There was some testimony that the train on its way had passed through banks of fog, but it does not appear that there was more than a very slight fog in the yards at the time. The location was a mile from the river along which the fogs usually hung, and it was also some distance from the hills around. Witnesses testified that they saw no lights upon the rear of the engine which was struck by the engine in charge of the deceased. The evidence upon

that subject was merely negative in its character, as no witness testified positively that there were no such lights. Their observation in that regard was after the collision which had disarranged the entire rear part of the engine. The collision was of such force that it practically destroyed the engine on which the deceased was riding. The brakes and couplings of the train were in good repair and were operating properly at the time. These were under full control of the deceased as the head engineer. The engineer of the second engine had no control of the air brakes, they being placed entirely under control of the head engineer.

Under the evidence submitted by appellant we see no escape from the conclusion that the deceased violated the established rules as to the speed of his train at the place of the accident, and that the collision would not have occurred but for his neglect. He was familiar with the location and character of the place and, as an engineer, he was bound to know that the main track within these terminal grounds was liable to be obstructed at any time of the day or night. Knowing this. it was his duty to observe the established rules and to so control the speed of his train as he approached these grounds and when within their limits that he could stop it at any point within the range of his vision. It is manifest from the evidence that he did not so control it, although it was within his power so to do, and that his failure to do so contributed directly to his injury and death. An employé is bound to obey all of the reasonable rules and instructions of his employer with reference to the conduct of his business. "Disobedience of such rules, if it contributes directly to the injury of the employé, conclusively charges him with negligence which will bar any recovery of damages for his injury. Green v. Brainerd & N. M. Ry. Co., 85 Minn. 318; 88 N. W. 974. This rule is based upon the plainest principles of justice and sound public policy, for upon a prompt compliance with such rules, especially in the railway service, depends the safety of not only property but of human life and limb." Nordquist v. Great Northern Ry. Co., 89 Minn. 485, 95 N. W. 322. See, also, Gordy v. N. Y. P. & N. R. Co. (Md.) 23 Atl. 607, 32 Am. St. Rep. 391; Conners v. Burlington C. R. & N. Ry. Co. (Iowa) 37 N. W. 966; Ford v. Chicago R. I. & P. R. Co. (Iowa) 59 N. W. 5, 24 L. R. A. 657 and note. Appellant, however, contends that the question of contributory negligence was for the jury. This court has frequently held that it is ordinarily for the jury, but it has also uniformly adhered to the doctrine that when there is no room for difference of opinion in the minds of reasonable men as to the existence of contributory negligence it is the duty of the court to decide as a matter of law that such negligence exists, and to take the case from the jury. We think this is such a case, and that the court did not err in with

drawing the case from the jury within the following decisions of this court: Johnson v. Anderson & Middleton Lumber Co., 31 Wash. 554, 72 Pac. 107; Steeples v. Panel, etc.. Box Co., 33 Wash. 359, 74 Pac. SOS; Beltz v. American Mill Co., 37 Wash. 399, 79 Pac. 981.

It is assigned that the court erred in per mitting the respondents to amend their answers during the trial so as to interpose the defense of assumption of risk, and also in permitting the respondent railway company to further amend by interposing the defense that the deceased met his death by reason of the act of a fellow servant. The court, however, determined the case solely upon the ground of contributory negligence, which was a defense in the pleadings before the trial began and was therefore regularly before the court at the time appellant's testimony was submitted. No evidence was submitted under these new defenses, and no question arising therefrom was determined against appellant. Appellant was not prejudiced by the amendments, in view of the fact that the case was determined entirely with reference to another defense, which alone has been considered by this court.

Error is assigned upon the alleged misconduct of Mr. Bunn, who was counsel for respondent Northern Pacific Railway Company at the trial. The misconduct charged consisted in the following remark made by said counsel to the court during the argument on motion for nonsuit: "I want to say here that this is the second time in 10 years where I have been in court to defend just such a similar case, and if the result of this case is as it must be, if the court will sustain my motion now or hereafter, I shall do my best, and I promise in the presence of my Maker to take care of her and her children for the rest of their life, and I have yet to have a recommendation in such a matter turned down at the St. Paul office." The remark was not made in the presence of the jury, the jury having withdrawn during the argument on the motion, and in any event the cause was not submitted to the jury. It is suggested, however, that the remark may have influenced the court to grant a nonsuit. The record does not show such to be the fact, and this court will not assume that a trial court has been improperly influenced by remarks of counsel. It is true the remark was improper. and should not have been made. If it had been made before a jury that afterwards passed upon the facts, a serious question of error might have arisen. The trial court determined the case upon the same evidence which has been reviewed by this court, and it has been determined here as well as below upon appellant's evidence and not upon the remarks of counsel. Further argument upon this subject made by appellant in connection with the next assignment of error we shall mention below.

It is contended that the court reversed its

own ruling upon the motion for nonsuit, that it erred in so doing, and that the result may have been induced by the remark of counsel above discussed; the remark having been made after the first ruling and before the last. So far as any effect of counsel's remark upon the mind of the court is concerned, what we have said before sufficiently disposes of that subject. With reference to the ruling upon the motion for nonsuit, the record does show that immediately after the formal motion was made, the court announced that the motion would be denied. This was immediately followed, however, by extensive arguments upon the motion by counsel upon both sides, the arguments appearing in the record. At the conclusion of the arguments. the court granted the nonsuit, and discharged the jury. When its former announcement was called to the attention of the court it remarked that it at first believed that the motion was merely formal, and for that reason the announcement was promptly made. The court did not err in its last ruling. After hearing the arguments of counsel, it was the duty of the court to consider the evidence as reviewed by counsel, and, if it was convinced that a new trial would have to be granted if a verdict should be returned for appellant, it was its duty to grant the nonsuit. There was no judgment set aside. The court simply changed its mind as to the correctness of a mere oral announcement it had hurriedly made during the progress of the trial. courts should not be permitted to correct such mistakes during a trial before they have become merged into some formal order or judgment, useless protraction of litigation and unnecessary expense would result.

If

1906.) CONSTITUTIONAL LAW-DUE PROCESS OF LAW -CARRIERS CHARGES WEIGHT OF SHIPMENT.

Acts 1905, p. 238, c. 124, fixing the weight of "standards." etc.. used in cars used for the shipment of lumber at 1000 pounds, and requiring such weight to be deducted from the net weight of lumber shipped, so the freight shall be charged only on the cargo, is ureasonable and void, as requiring free carriage of freight, and is therefore a taking of property without due process of law, in violation of Const. U. S. Amend. art. 14, § 1.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Constitutional Law, § 847.]

Appeal from Superior Court, Spokane County; W. A. Huneke, Judge.

Mandamus by the state, on the relation of the Washington Mill Company, to compel the Great Northern Railway Company to furnish

cars under the provisions of Laws 1995, p. 238, c. 124, and from a judgment denying the writ, relator appeals. Affirmed.

Danson & Williams, for appellant. M. J. Gordon and Charles A. Murray, for respondent.

MOUNT, C. J. This case depends upon the validity of section 2 of the act of 1905, requiring railroad companies and other common carriers to include in the weight of cars used for the shipment of lumber the weight of standards, etc. The act is found in the laws of 1905 at page 238, c. 124. Section 2 of this act arbitrarily fixes the weight of such standards, etc.. at 1,000 pounds, and provides that 1,000 pounds shall be deducted from the net weight of the lumber carried on the car, and that freight shall be charged on the balance only. The question was raised below by the application of the appellant for a writ of mandamus to compel the Great Northern Railway Company to furnish appellant with an empty flat car containing the necessary standards and equipments on which the said appellant could load a car of lumber. Appellant demanded that the weight of such standards and equipments should be taken and considered as a part of the weight of said car, and the same should be fixed at 1,000 pounds and deducted from the net weight of the lumber carried on said car. The railroad company refused to furnish the car upon the conditions of the demand. It is conceded that the railroad company "has ever been, and now is, ready and willing to furnish cars to relator and others in the discharge of its duties as a common carrier, deducting from the freight charges in said service the actual weight of the cars and the usual equipments, including the actual weight of standards, supports, stays, railings, equipments, appliances, and appurtenances thereto, which weight will in no case exceed 400 pounds per car, making its freight charges depend solely upon the actual weight of lumber or manufactured lumber product shipped upon such cars." The lower court held that section 2 of the act above referred to was unconstitutional, because it requires the respondent to carry freight on each car free of charge, and is therefore a taking of property without due process of law. We think this position must be sustained. If the Legislature may say that the carrier must deduct 1,000 pounds from the net weight carried, then there is no limit to which it may not go. This arbitrary deduction is not based upon the right to regulate the rates of freight because such rates must necessarily be based upon the actual weight or bulk carried. There can be no doubt that it is the duty of a common carrier to furnish cars suitable for what is carried, and the carrier is liable in damages for a failure of its duty in this respect. Emerson v. St.

Louis & H. Ry. Co., 111 Mo. 161, 19 S. W. 1113; Beard v. Illinois Central R. Co., 79 Iowa, 518, 44 N. W. 800, 7 L. R. A. 280, 18 Am. St. Rep. 381. This duty is conceded by the respondent, and the authority of the Legislature to provide for a suitable equipment is not questioned in the case. When the Legislature defines by statute what shall constitute a reasonable or proper equipment, it cannot go further and arbitrarily fix the weight of such equipment, and then say the weight thereof shall be deducted from the net weight of freight carried on the car, because the equipment is no part of the freight carried. If the Legislature may provide for deducting the weight of the equipment from the net weight of the freight, it may for the same reason deduct the weight of the car from the weight of the freight, and thus require the carrier to carry freight to the amount of the weight of the car and equipment free.

Appellant contends that it is only where the regulation is so unreasonable as to result in depriving the carrier of its property that the court will interfere and declare the regulation void, and that 1,000 pounds is so small when compared with the weight of a car load of lumber as to be immaterial. The first contention may be conceded, but as to the second the weight of the standards and other equipments and the weight of cars used may be easily and accurately ascertained and a reasonable regulation would require the carrier to weigh the cars and equipment when such weight becomes material in determining freight charges. Any regulation, therefore, which fixes the weight of cars or their equipment at less or more than the actual weight cannot be a reasonable regulation. Cars, as well as equipment, do not weigh the same. The weight must depend upon the materials used in the construction. Such weight is easily and readily determined. If the average weight of equipment of a car is 1,000 pounds and may be fixed at that weight by law, regardless of its actual weight, then the shipper on a car having equipment weighing more than 1,000 pounds would be required to pay freight on a weight which he did not ship, and where the equipment weighed less than 1,000 pounds the carrier would be required to carry freight free. Thus, in either event, such regulation would take property from one and give it to another without compensation. While it may be true that the average would balance in the end, yet a reasonable regulation requires the shipper to pay the carrier in each case for the freight actually carried, no more and no less. Any arbitrary regulation of weights cannot be said to be reasonable. In other words, this kind of regulation amounts to confiscation. When it is once conceded that the Legislature may require 40,000 pounds to be carried as 39.000 pounds or less, then the right to confiscation is at once maintained. A state cannot require a railway 86 P.-67

company to carry property without reward, or, as said in the Railroad Commission Cases, 116 U. S., at page 331, 6 Sup. Ct., at page 345, 29 L. Ed. 636: "This power to regulate is not a power to destroy, and limitation is not equivalent to confiscation. Under pretense of regulating fares and freights the state courts cannot require a railroad corporation to carry persons or property without reward. Neither can it do that whic in law amounts to a taking of private property for public use without just compensation or without due process of law." See, also, Dow v. Beidelman, 125 U. S. 680, 8 Sup. Ct. 1028, 31 L. Ed. 841, and cases cited; Chicago, etc., Ry. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. 462, 33 L. Ed. 970. Under the conceded facts in this case, if the validity of this section of the statute is maintained, the carrier is required to carry 600 pounds of freight free on each car. This is a small amount to be sure when compared with the capacity of a car, but it is a substantial quantity and involves the principle that the Legislature may require the railway company to carry freight free, which as we have seen is a taking of property under the decision of the Supreme Court of the United States.

Section 1

Appellant also contends that the act contemplates that the shipper will furnish the standards, supports, etc., and the weight thereof will be included in the weight of the lumber shipped upon the car. of the act provides that the equipment named shall be considered a part of the car, and the weight of the equipment shall be added to the weight of the car, "so that the freight charges shall be charged by the carriers only on the cargo carried." These are reasonable and proper provisions, but there is no provision in the act that the weight of the standards shall be included in the weight of the lumber and then deducted, except as it may be inferred from section 2, which is as follows: "Sec. 2. For the purpose of this act, the weight of such standards, supports. stays, railings, equipments, chains, appliances, contrivances, etc., provided for in the first section of this act, shall be, and the same is hereby fixed at 1000 pounds, and in estimating and adjusting the freight charges on all lumber and manufactured lumber products carried on cars by a railroad company or other common carrier in this state. 1000 pounds per car shall in each case be deducted by such railroad company or other common carrier from the net weight of the lumber and manufactured lumber products so carried upon such car, and freight shall be charged on the balance only." If the words "net weight of the lumber carried" mean to include the weight of standards and other equipments with the weight of the lumber, then there would be force in the position that the weight of the standards is to be included in the weight of the lumber. But the words "net weight," as commonly