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would drink a glass of beer with him, adding that it "was 298 very seldom though"; but this hardly justifies the conclusion drawn by the court.

We think the evidence sufficient to justify granting the prayer of the appellant's complaint, and the judgment appealed from will be reversed, and the cause remanded with instructions to grant a decree accordingly.

Mount, C. J., Hadley, Dunbar, Crow and Rudkin, JJ.,


A Divorce may be granted a wife on the ground that her husband indulged in profane, indecent, and insulting language toward her, charging her with unchastity and denying the paternity of his children: Braun v. Braun, 194 Pa. 287, 75 Am. St. Rep. 699; Green v. Green, 131 N. C. 533, 92 Am. St. Rep. 788; note to Reinhard v. Reinhard, 65 Am. St. Rep. 75. See, however, Johnson v. Johnson, 107 Wis. 186, 81 Am. St. Rep. 836; Maddox v. Maddox, 189 Ill. 152, 82 Am. St. Rep. 431. As to what degree of intemperance in the use of liquor will warrant a decree of divorce, see Dennis v. Dennis, 68 Conn. 186, 57 Am. St. Rep. 95; McBee v. McBee, 22 Or. 329, 29 Am. St. Rep. 613.

[43 Wash. 428, 86 Pac. 646.]

MASTER AND SERVANT-Safe Place-Assumption of Risk. A servant ordered to work upon and take down a scaffold is not required to make an examination to see if it is safe, in the absence of apparent danger, nor is he barred from recovering damages if injured while thus engaged, by reason of the faulty construction of such scaffold. (pp. 1059, 1060.)

MASTER AND SERVANT-Safe Place Assumption of Risk. A laborer, when ordered by his master to work, need not examine the place where he is required to work. He has a right to assume, in the absence of apparent danger, that the master has furnished him a reasonably safe place in which to work. (p. 1060.)

MASTER AND SERVANT-Assumption of Risks.-A laborer ordered by his master to work upon and take down a scaffold does not assume the risk of injury from its faulty construction, in the absence of apparent danger, nor can knowledge that such scaffold was being taken down because of its faulty construction be imputed to him. (pp. 1060, 1061.)

TRIAL-Instructions-Damages.-If, in an action to recover for personal injury, there is no proof as to allegations of expenditures for medical attendance and hospital charges, instructions to the effect that such items must be excluded by the jury are properly refused, if under the instructions given there is no possibility that such items could be considered by the jury. (p. 1061.)

Peters & Powell, for the appellant.

Casey & Casey and J. F. McLean, for the respondent.

429 DUNBAR, J. This is an action for damages for personal injuries. In brief, the plaintiff sets forth in his complaint that on the eighteenth day of March, 1905, he was in the employ of the defendant corporation; that he was ordered and directed by a representative of the defendant company to mount a scaffold; that while he was at work on this scaffold it fell on account of its faulty construction; and that in consequence of this fall he sustained the physical injuries for which he seeks damages. The answer admitted that the plaintiff was in the employ of the defendant and that he fell from a scaffold. All the other allegations of the complaint are put in issue by the answer. It was also affirmatively pleaded by the 430 answer that the danger of the situation was open and apparent; that plaintiff assumed the risk of being hurt by working in that situation; and that he was guilty of contributory negligence. The reply of the plaintiff denies the matters of affirmative defense. On the trial of the cause, judgment was rendered in favor of the plaintiff for one thousand dollars. From this judgment this appeal is taken.

The first error assigned is that the court erred in overruling defendant's motion for a nonsuit at the close of plaintiff's case, for the reason that the plaintiff's case itself shows that, if he received any injury through a defective scaffold, the risk was one which he in law was presumed to have assumed; and further that his own case showed contributory negligence in his going upon the scaffold if it was such as he claimed it to have been. Appellant, in support of this assignment, relies largely upon the case of Steeples v. Panel etc. Box Co., 33 Wash. 359, 74 Pac. 475. But that case, it seems to us, is very plainly distinguishable from the case at bar. There a night watchman fell from a second story eightfoot platform, there being no railing on one side of the platform where he fell off, he having been at work for some time on the platform and knowing of the absence of the railing, the platform being under his supervision and control, and lanterns being at hand for his use while working where it was dark, presenting a plain case of assumption of risk. But here the circumstances are entirely different. The respondent was ordered to work upon this scaffold, and, in performing his duty, the scaffold, by reason of its faulty con

struction, fell and he was injured. There was no apparent danger. It is true that the plaintiff stated that he did not examine the scaffold when he went onto it, but under the uniform ruling of this court, and under the provisions of the law as announced ordinarily by the court, it is not the duty of a laborer, when ordered by the master to work, to make an examination of the place where he is required to work; for it is undisputed law that he has a right to assume, 431 in the absence of apparent danger, that the master has furnished him a reasonably safe place in which to work.

The second assignment embraces an objection to the following instruction: "But there is an obligation which the law, for the protection of society, imposes upon the employer of labor, and that it is his duty to provide his employé with a reasonably safe place within which to work, and with reasonably safe appliances with which to work; he must exercise ordinary care in that respect, to see that a reasonably safe place and reasonably safe implements are provided, and the duty of reasonable inspection to see if that condition is preserved during the course of employment. The employé has a right to assume that his master has discharged that duty, and the master has a right to assume that the servant has discharged, and will discharge, the duty which the law imposes upon him. So, in approaching the case of the plaintiff, it is for you to inquire from the evidence whether the place at which this plaintiff was put to work, if he was put to work, was a reasonably safe place; and whether the apparatus upon which he was standing, if he was rightfully and properly there, was a reasonably safe apparatus. If you should conclude from the evidence that the plaintiff was put to work by the defendant on this scaffold, that he was there in the discharge of his duty, that the scaffold was insecurely built, that it was not a reasonably safe scaffold on which to require a man to stand while at work, then your verdict will be for the plaintiff in such a sum as would fairly compensate him for the injury sustained by reason of the said action," etc.

It is admitted by the appellant that this instruction stated the law properly as an abstract proposition, and that it would have been objectionable had the respondent been using the scaffold as a platform for other work; but where the work which he was engaged in was taking down that scaffold, it is insisted that the instruction was wholly misleading, for,

if the fact that the scaffold was to be taken down was not of itself notice that its safety was not guaranteed, at all events there was no presumption of its safety for any purpose. seems to us that there is no merit in this contention. If it is 432 a master's duty to furnish the servant a safe place in which to work, it is just as much his duty to furnish that safe place, where the work to be performed is the demolition or tearing down of a building, as where it is its construction in the first instance. Here the cross-piece, on which the respondent stood while undertaking to remove a board or cross-piece above him, broke and fell, precipitating the respondent to the ground. There seems to be no good reason for depriving the servant of the right to rely upon the assumption that he was furnished a safe place to stand in the performance of this duty. Nor could the knowledge be imputed to him that the scaffold was to be torn down for the reason that it was unsafe. It might be torn down for that reason, or for many other reasons which are conceivable.

It is also assigned that the court erred in refusing appellant's requested instruction No. 13, which is as follows: "While the plaintiff claims in his complaint that he has expended money for hospital bills, medicine, and physicians' services, this is challenged by the answer, and there has been submitted no proof of these items. You will, therefore, disregard the items, whatever your verdict."

This action was brought for twenty thousand dollars, and it is alleged in the complaint that the plaintiff had been compelled to expend the sum of two hundred and fifty dollars for hospital charges and medicine, and the sum of two hundred dollars in procuring the attendance of physicians and surgeons. The verdict was for one thousand dollars, and it is contended by the appellant that the four hundred and fifty dollars claimed for hospital bills and physicians' services might have been taken into consideration by the jury and have been incorporated in the verdict. We think the question of damages in this respect was fairly placed before the jury by the instructions given by the court, and that under such instructions there is no possibility that the amount claimed and not proven was taken into consideration by the jury in arriving at their verdict.

We also think that the fourth assignment of error is without foundation, as there was sufficient testimony to go to the 433 jury tending to show that the respondent was ordered

to work upon the scaffold by an authorized agent of the appellant. The case is a simple one. Respondent was put to work upon a structure of the appellant, which was faulty in its construction. This fault of construction was not so apparent as to devolve upon the respondent the duty of examination. While in the performance of his duty, a portion of the structure fell, and the respondent was thereupon injured. The jury passed upon all the questions of fact, under instructions which were clear and concise and presented the issues to the jury fairly.

There being no error discernible, the judgment will be affirmed.

Mount, C. J., Crow and Fullerton, JJ., concur.

The Duty of an Employer to Furnish a Safe Place for his employé to work, and the doctrine of assumption of risks and contributory negli gence on the part of the employé who works in an unsafe place are considered in the notes to Houston etc. Ry. Co. v. De Walt, 97 Am. St. Rep. 884; Brazil Block Coal Co. v. Gibson, 98 Am. St. Rep. 289. The Liability of a Master to His Servant for Defective Scaffolding is discussed in Kimmer v. Weber, 151 N. Y. 417, 56 Am. St. Rep. 630; Chicago etc. R. R. Co. v. Maroney, 170 Ill. 520, 62 Am. St. Rep. 396; Edward Hines Lumber Co. v. Ligas, 172 Ill. 315, 64 Am. St. Rep. 38; Dougherty v. Milliken, 163 N. Y. 527, 79 Am. St. Rep. 608; Enright v. Oliver, 69 N. J. L. 357, 101 Am. St. Rep. 710.

[43 Wash. 500, 86 Pac. 852.]

MUNICIPAL CORPORATIONS Streets-Open Trapdoors.— A city is liable to a pedestrian for an injury sustained by a fall into an open and unguarded trapdoor situated upon the sidewalk of one of the principal streets of the city in constant use by pedestri ans, although such door had been opened but a few moments at the time of the accident. (p. 1063.)

S. Calhoun, E. E. Todd and F. R. Conway, for the appellant.

McCafferty & Bell, for the respondent.

500 Per CURIAM. The respondent fell into an opening in a sidewalk on one of the streets of the city of Seattle and

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