Feb. 1901.]

Opinion of the Court-Dunbar, J.

four inches wide by twelve inches long; and that the light was not sufficiently powerful to illuminate the path or way which the engineer had to travel. The testimony of Mr. French, before he died, and he said very little on the subject, was that he was oiling the bearings, fell into the winder wheel, and was thrown out onto the floor. It seems that when he went up to oil the machinery he took a candle with him to light him on his way. The testimony shows that he had been notified, on Sunday before commencing work, by the superintendent, that the machinery was not in as good condition as in some other shops in which French had worked, but the superintendent stated that they hoped soon to have those matters corrected, and that they would have them in a week or so. It appears, also, that French on that Sunday afternoon, after talking with the superintendent, went over to take a view of the power house and the machinery; that he came back while the superintendent was there and the superintendent said to him, "Well, I guess you didn't find things so nice up there," comparing the power house and machinery with other places about which French had been telling him. It also appears that he went up again about midnight to see them close down. In addition to this, he had charge of the power house for two days before he was hurt, the accident having occurred about eight o'clock in the evening. The testimony of plaintiff's witnesses was to the effect that it was the duty of the engineer to oil these bearings, and that they had to be oiled very frequently. So that it appears, without any contradiction, that the engineer was familiar with the alleged defects in this machinery. There were no hidden defects in the machinery. There was no danger there that was not apparent to an observing man. If there was not suffi cient light the engineer knew it.

If the platform on

which he had to walk was in a bad condition, he knew that, for he must have traversed it before the time at which the accident accurred. So that, conceding the truthfulness of the testimony, and all of the testimony of plaintiffs, it appears that the danger, if there was any, was apparent; that the engineer was cognizant of the defects which existed, and consequently, under the well-established rule that the servant assumes the risk of apparent danger,—a rule which is augmented in this case by the fact that the machinery in question was under the personal supervision of the person injured, no recovery can be had.

The judgment is reversed, and the cause remanded with instructions to the lower court to dismiss the cause. REAVIS, C. J., and FULLERTON and ANDERS, JJ., con

cur.

[No. 3732. Decided February 21, 1901.]

THOMAS HOWAY, Respondent, v.

COMPANY, Appellant.

GOING-NORTHRUP

ACTION FOR BREACH

DAMAGES.

CONTRACT OF EMPLOYMENT Where an action for breach of a contract of employment was commenced during the term of employment contracted for, but not tried until after the expiration of such term of employment, the plaintiff is entitled to recover the same damages that he would have been entitled to had the action been commenced after the expiration of the term.

TRIAL

HARMLESS ERROR.

REFUSAL OF REQUESTED INSTRUCTIONS The refusal of the court to give pertinent requested instructions is not error, when the court's instructions in its own language are substantially the same as those requested by appellant.

Appeal from Superior Court, King County.-Hon. E. D. BENSON, Judge. Affirmed.

Feb. 1901.]

Opinion of the Court-Dunbar, J.

Byers & Byers, for appellant.

Herbert E. Snook, for respondent.

The opinion of the court was delivered by

DUNBAR, J.-This is an action by a discharged employee against the employer. In August, 1898, the appellant hired the respondent for the term of one year, at a specified rate of wages. Respondent entered into the service of the appellant and was, on November 26th, discharged and paid in full up to the time of discharge. On November 28th, the respondent brought suit against the appellant, claiming damages for breach of contract, by reason of his wrongful discharge, in the sum of $722, which was the amount that would have been due him at the end of his term of employment, he having given credit for the amount paid him at the time of his discharge. The complaint is brief, alleging the contract of employment, which was in writing; the wrongful discharge and refusal of the appellant to allow the respondent to continue or remain in its employ; alleging faithful and efficient service on his part in every way in the performance by him of the contract; alleging that by reason of the wrongful discharge by appellant he has been damaged in the sum of $722; and praying judgment for that amount. A demurrer was interposed to the complaint and was overruled. Objection was raised to the admission of testimony under the complaint, for the reason that it did not state a cause of action, which objection was overruled. A default was prayed for at the close of the testimony, which was also denied. Judgment was rendered for $300. The judgment was based evidently on the salary contracted for, less the amount paid and less the salary for the time during which plaintiff had obtained other employment; he testifying that for a portion of the time

Opinion of the Court-Dunbar, J.

[24 Wash.

during the term for which he was employed by appellant he had obtained other employment.

It will be noticed that this suit was brought two days after the discharge of the respondent by the appellant, but it was not tried until the term of employment under the contract had expired. It is the contention of the appellant that the complaint does not state facts sufficient to constitute a cause of action, (1) because there is no sufficient allegation of damages for breach of contract, and (2) because it is not alleged, in terms, that the respondent ever offered to continue in the employment or offered to perform work for the appellant. Without setting forth in full the language of the complaint, we think it sufficiently appears that the respondent was prevented from performing his portion of the contract. Nor do we think, under the authorities as contended for by the appellant, that the recovery of the respondent should be limited to the damages accruing between the breach of the contract and the time of the commencement of the action, which in this case would be nominal, the time being only two days. There has been some conflict of authority on this proposition, and the 14 Am. & Eng. Enc. Law, p. 797, cited by appellant to sustain its contention, under the subject of "Remedies of Servant for Wrongful Discharge," is as follows:

"Where an employee for a fixed period, at a salary for the period, payable at intervals, is wrongfully discharged, he may pursue any one of four courses:

1. He may sue at once for a breach of contract,

2. He may wait until the end of the contract period, and then sue for the breach.

3. He may treat the contract as existing and sue at each period of payment for the salary then due.

4. He may treat the contract as rescinded and sue

Feb. 1901.]

Opinion of the Court-Dunbar, J.

immediately on a quantum meruit for the services performed.

But in the first instance it is said he can only recover his damages up to the time of bringing suit. In support of this proposition that the plaintiff can recover damages only up to the time of bringing suit, the following cases are cited: Colburn v. Woodworth, 31 Barb. 381; Booge v. Pacific Railroad, 33 Mo. 212 (82 Am. Dec. 160); Na-. tions v. Cudd, 22 Tex. 550; Gordon v. Brewster, 7 Wis. 355; and many others. But these cases do not sustain the text. All that is held in Colburn v. Woodworth, supra, is that these remedies are not cumulative, and that an action upon one and judgment upon it will operate as a bar to any further action; that the error, if any, should be corrected in that action by review of the verdict or judgment and not by a new action for the same cause. The question of whether the plaintiff could recover damages only up to the time of bringing suit was not involved or discussed. Booge v. Pacific Railroad, supra, involves exactly the same proposition. In Nations v. Cudd, supra, the rule laid down in Meade v. Rutledge, 11 Tex. 44, and Hassell v. Nutt, 14 Tex. 260, that the discharged servant could maintain his action for damages immediately upon the breach of the contract by his employer, was sustained. In Gordon v. Brewster, supra, it was decided that the measure of damages was the rate of the salary from the time of the breach up to the time of the trial, less the amount plaintiff might have earned in the meantime, but that the damages could be computed and recovered only from the time of the breach up to the time of the trial. In that case the court said:

"Had the respondent seen fit to wait before bringing his action until the period had elapsed for the complete performance of the agreement, the measure of compensa