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ticular road which is to connect with another road and become a branch thereof. Such a corporation would have the right to condemn land for its right of way. Mr. Lewis says: "There appears to be no reason why lateral roads should not be constructed, if they are required to serve the public, as occasion requires." Lewis, Em. Dom. § 171. There was evidence that the Madera Granite Company was not the only person and its granite enterprise the only industry that might be served by this branch road. The defendant company employed a large number of men, as did the Madera Granite Company. There was evidence that a considerable business in marketing wood for fuel might be done by this road. There was evidence also that a grazing country surrounded this road and shipments of cattle might be made by this road; that the road passed through granite land which would with this branch road be profitable to work; that it would be an additional convenience to the neighborhood generally. It is made the duty by law for the railroad company to operate its cars "for the transportation of all such passengers and property as offer or is offered for transportation," etc. (Civ. Code. § 481); and "in case of refusal to take and transport any passenger or property or to deliver the same ** * must pay the party aggrieved all damages," etc. (Civ. Code, § 482). Failure to operate its road as provided by the act of April 15, 1880 (St. 1880, p. 43, c. 57), makes subject to forfeiture the right of the corporation or the individual owning the road to operate it. Section 17, art. 12, of the Constitution, provides, among other things: "Every railroad company shall have the right with its road to intersect, connect with or cross any other railroad, and shall receive and transport each the other's passengers, tonnage and cars, without delay or discrimination." Organized, as plaintiff is, to do a general carrier business, it can be compelled to exercise its assumed powers and duties. Appellant contends that the Knowles switch or spur, with which the branch in question is to connect, is no part of the main line of the Southern Pacific Company; that it is a branch of the Raymond branch of the Southern Pacific Company, and is but a switch running to defendant company's quarry. There is evidence that the Knowles spur was built by the Southern Pacific Company; that the right of way was obtained by defendant company, and conveyed to the Southern Pacific Company for a consideration paid by that company in switching charges; that it was constructed in 1889 and has been in use ever since by the Southern Pacific Company. Witness Knowles testified: "The Knowles spur is their track. Q. Mr Knowles, is there a regular train service to Knowles' spur? A. No, sir; there is no train service; only freight service. that's all. They carry passengers to Knowles spur in freight or box cars or whatever they have to take passenST P.-3

gers to and from our store at Knowles spur. Q. Do they run regular trains on that spur? A. Well, not regular; no, sir. Not every day. If they have freight to get or take they run there. Q. Do you always notify them when they come down there [meaning Knowles spur]? A. Not always, they come there [meaning Knowles spur] often without being notified. Q. But do they run regular rams? A. They are supposed to come there whenever we have anything to ship. If there is any one to go, they never come after them. Knowles station on the Southern Pacific map is where the Knowles spur starts from the Southern Pacific line." In the answer of the defendant company this Knowles spur is referred to as "the railroad of the Southern Pacific Company," and the road in question is referred to as commencing "at the said Southern Pacific Raliroad," and that the sole purpose of said Madera Railroad is to carry the rock of the Madera Granite Company from McGowan station "to the said railroad of the Southern Pacific Company on cars prepared by the said Southern Pacific Company for that purpose." There was much evidence pro and con the question whether the use was private or public-sufficient, we think, to have supported a finding either way by the court. In such condition of the record we must uphold the view of the evidence taken by the court. That plaintiff company has now no cars with which to operate the road; that it may or intends to arrange with the Southern Pacific Company to operate the road with its cars; that at the present time little or no business will come to the road except from the Madera Granite Company; that the present or prospective volume of business for the road from all sources would not justify its construction; that the owners, agents, and attorneys of the Madera Granite Company were active participants in organizing plaintiff company-are facts having some bearing, perhaps, upon the question of the nature of the use, but are by no means conclusive. Legitimate railroad enterprises are often projected into regions of little present profit, and ultimately prove unfortunate investments by lack of anticipated business. But they were nevertheless public in their objects; and we have seen that a public use may be shown where only a single enterprise is primarily to be benefited, and that the fact that the corporators in another company which is the chief beneficiary are also corporators of the railroad company is not at all conclusive as to the character of the use.

The point is much urged that the Madera Granite Company and plaintiff were composed of the same persons, seeking thus not only to discredit the plaintiff company, but also the good faith and objects of its corporators. Sufficient to say, as was said in Kansas Railway v. Coal Co., supra: "There is nothing in the letter or spirit or policy of the law which prohibits the same persons from forming and conducting two different corporations; one

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.a business, and the other a railroad, company. The charter of the plaintiff and the laws of this state expressly require the plaintiff to transport persons and freight, and the plaintiff can be compelled by mandamus to do so if it refuses. The fact that almost the entire volume of business now in sight for the plaintiff to do will be transpor- | tation of coal produced by the Kansas & Texas Coal Company does not destroy the character of the plaintiff as a railroad company, nor convert it into a private, and not a public, railroad; nor does it make the use to which the land sought to be condemned is to be applied any the less a railroad right of way, and therefore a public use." Upon the same general question, see Oregon Short Line v. Telegraph, 111 Fed. 842, 49 C. C. A. 663.

There are numerous errors of law assigned in the exclusion and admission of evidence. Many of them are inconsequential and need not be noticed. Others present rulings which, conceding error, were without prejudice to appellant. Still others are disposed of by the foregoing discussion.

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Exception 2. Before the trial defendant company took the deposition of R. W. Campbell, secretary of plaintiff, and in the taking called for copies of certain records of the plaintiff company, which were produced and incorporated into the deposition. At the trial plaintiff offered this deposition in evidence, and, in reading it, objection was made to the admission of those record copies as not the best evidence, and defendant also demanded that the originals should be produced, citing section 1000, Code Civ. Proc. Having been introduced by defendant and made part of the deposition taken by it, the copies therein incorporated were as admissible as any other portions of the deposition. "When a deposition has been once taken, it may be read by either party at any stage of the same action or proceeding, * and is then deemed the evidence of the party reading it." Code Civ. Proc. § 2034. The demand made was substantially for all the books and papers and records of plaintiff, some few of which were specified, many of which were incorporated in the deposition, and all of which were at the office of the company in San Francisco, while the trial was going forward at Madera. There was no sufficient showing by affidavit or otherwise that these records and papers not appearing in the deposition were material to defendant's defense. As was said in Ex parte Clark, 126 Cal. 235, 58 Pac. 546, 46 L. R. Á. 835, 77 Am. St. Rep. 176, the motion was "in effect a general omnibus order [motion] for the production of all of defendant's [plaintiff's] books, which has always been held to be unauthorized.” Besides, the general purpose which the records were intended to establish appeared in many ways in the course of the trial.

Exception 3. During the reading of the deposition plaintiff objected to a question as immaterial and incompetent, which in fact it

was, and the court sustained the objection. Section 2032 of the Code of Civil Procedure provides that "the deposition may be used by either party upon the trial * * subject to all legal objections," unless the objection be "to the form of an interrogatory," which this was not. It is contended that "plaintiff, offering the deposition, was estopped from objecting to the same." The question called for the "deliberate judgment" of the witness as to a matter, and not the facts as to the matter, and was clearly immaterial and incompetent. The court did not err in its ruling.

Exception 12. Upon the question of defendant company's damage, defendant sought to show the condition in which the McLennan road was left by plaintiff's grading, at points other than along the land of defendant company, over which the right of way was being condemned, for the purpose of enhancing the damage to defendant company. The court sustained the objection to such evidence, and, we think, rightly.

Exception 13. Considering all the testimony brought out in connection with the ruling of the court complained of, we see no error, for defendant had the benefit of all the witness knew on the subject.

Exception 14. It was not error to admit at plaintiff's instance the testimony of the witness Knowles on the question of damage given in the condemnation suit when the McLennan private road was before the court. In admitting the testimony, the court limited it to the value of the land upon condition that it be shown that the value had not changed. Upon the question of damage the court held that a different element entered into the matter where the taking was for a railroad, and the damage might be different. Under the limitation made by the court the testimony worked no injury to defendant.

Exceptions were taken to certain rulings as violating the law as laid down in San Diego Land, etc., Co. v. Neale, 78 Cal. 63, 20 Pac. 372, 3 L. R. A. 83. We cannot see that the court departed materially from the rules established by that case.

The judgment and order are affirmed.

We concur: BUCKLES, J.; McLAUGHLIN, J.

(14 Wash. 14)

BERG v. SEATTLE, R. & S. RY. CO. (Supreme Court of Washington. Sept. 24, 1906.) 1. MASTER AND SERVANT-INJURY TO SERVANT-FELLOW SERVANTS.

The motorman and conductor of one car on a street railroad, the cars of which run on schedule time, are fellow servants of the motorman and conductor of another car on the line. so that one of the motormen injured through the negligence of the other motorman in not performing his duty of turning on the lights of a block-light system, and of the conductor of the other car in not performing his duty to see that

his motorman performed such duty, cannot recover of the company.

[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 506–508.] 2. SAME-NEGLIGENCE OF MASTER.

street. When the lights were turned on at Lane street, they burned on the south side of each pole through to Norman street. The lights could be turned off only at the point These lights

where they were turned on. A street railroad does not fail to furnish

a sufficient block-light system, so as to be liable for injury to a motorman from collision with another car on the block, where it appears that the accident could not have happened had the motorman and conductor of the other car performed their duty of turning on the light before entering on the block.

Fullerton, Iladley, and Dunbar, JJ., dissent

ing.

Appeal from Superior Court, King County; George C. Hatch, Judge.

Action by Thomas Berg against the Seattle, Renton & Southern Railway Company. Judgment for plaintiff. Defendant appeals. Reversed with directions to dismiss.

John P. Hartman, for appellant. Walter S. Fielton and Martin J. Lund, for respondent.

MOUNT, C. J. Action for personal injuries. Plaintiff recovered a judgment for $5,000. Defendant appeals.

The appellant operated a line of electric street railway between Seattle and Renton, a distance of 12 miles. The line consisted of a single track, with numerous switches and side tracks or turnouts. There were but two through cars between Seattle and Renton. There were four or five local cars running between Seattle and Rainier Beach, which was a station some eight miles out of Seattle. The respondent was employed as a motorman on one of the through cars. These two through cars were called express cars by reason of the fact that they were not required to stop at all of the stations and street crossings, and because it was the duty of the local cars which stopped at each street crossing to turn out on the sidings in order that the through cars might pass them. All the cars ran on schedules fixed by the railway company. The railway company had constructed a block-light system, known as a single-block system, between Norman street and Lane street in the city of Seattle. The distance between these two streets was 1,665 feet. There were sidings at Norman street and at Lane street, bui none between these points. The grade was not level, but the railway line was straight between these points so that a car could be seen in the day time from one end of the block system to the other, except in fogg weather. Norman street was further south from Seattle than Lane street. Renton was In a southerly direction from Seattle. The block-light system consisted of five poles about equal distance apart, one pole being at Lane street, one at Norman street, and the other three between these two extremes. On each of these poles were two red incandescent electric lights. When the lights were turned on at Norman street by means of a rope or lever, one red light burned on the north side of each pole through to Lane

were for use in the nighttime and in foggy weather. The motormen on all cars were required to turn on the lights when entering the block and the next car back was required to turn the lights off. It was the duty of conductors to see that the motormen turned the lights on and off. On the morning of October 25, 1904, respondent, as motorman on his car, left Renton for Seattle. When he arrived at Norman street he says he was a little late, a minute or two. The morning was very foggy. He found the lights turned to the north, indicating that a car was preceding him through the block. The lights were not burning to the south. The conductor on respondent's car told respondent to proceed through the block. Respondent thereupon proceeded at the rate of about eight miles per hour, and, at about the middle of the block, after he had gone a distance of 870 feet, he collided with a car coming south, and was severely injured. The motorman on the south-bound car had neglected to turn on his lights south, and had proceeded with those lights not burning. Respondent stated that if these lights had been thrown on, he would have seen them and the accident could not have happened. The motorman on the south-bound car testified that he did not turn his lights on because the conductor on the car preceding respondent's car had just come through the block and changed to the car south bound, and said that the north lights were his lights thrown on by him as he had just come through the block. There was dispute at the trial as to what the rules of the company were with regard to the use of the lights, the company claiming that the motormen were prohibited from passing a burning light which such motorman himself had not turned on, while respondent's evidence was to the effect that motormen were only prohibited from running on lights pointing against the way his car was going. We must assume, for the purposes of this case, that the rule of the company was as stated by the plaintiff. The question is then squarely presented, whether the failure of the conductor and motorman, whose duty it was to turn the lights on, which they neglected to do, rendered the company liable to the respondent. In other words, were the motorman and conductor on the one car fellow servants of the motorman and conductor on the other car?

It seems to us that there can be no escape from the conclusion that they were fellow servants. They were each engaged in the same common employment, meeting and passing each other frequently and associating together every day. This case cannot be distinguished from the case of Grimm v.

train were not fellow servants with employés on a work train, but this rule had not been applied to street railway cases. The reasons therefor are given in Grimm v. Olympia Light & Power Co., supra. A large number of cases are cited where we have permitted one servant to recover from the master by reason of negligence of another servant. But those have been cases where the negligence was the omission of some positive duty of the master. It is unnecessary for us to cite these cases here, or to review them at length for, in such cases as well as cases not cited, we have uniformly recognized the rule that the master is not liable for injuries resulting to a servant by the negligence of a fellow servant. Millett v. Puget Sound, etc., Works, 37 Wash. 438, 79 Pac. 980; Stevick v. N. P. Ry. Co., 39 Wash. 501, 81 Pac. 999. The questions usual

Olympia Light & Power Company (Wash.) 84 Pac. 635, except in immaterial particulars. It is true, in the Grimm Case there was no fixed schedule of running time, and the motormen themselves arranged the places of meeting; and it is also true there were no conductors in the Grimm Case, and that the motormen had sole charge of their cars. These are the only facts in which the Grimm Case differs from this case in the point at issue. The fact that there was no fixed schedule was one of the facts which was claimed as negligence of the company in the Grimm Case. But, under the circumstance of that case, no fixed time was practicable or could be established. In this case there was a fixed schedule for all cars, and it is not claimed that the motormen were incompetent or inexperienced or that they did not know the time schedule for each car. The number of cars was not greatly presented have been whether the facts and the motormen and conductors were required to know, and did know, the schedule time of each car. So the fact that there was a schedule was in favor of the appellant and not against it. While there was a conductor in charge of each car in this case, the conductor's authority over the motorman extended only to starting and stopping of the cars and in collecting fares. In regard to the speed of the car, the handling of the lights, and meeting cars and the like, the duties of the motormen and conductors were co-ordinate. It is conceded. that it was the duty of the motorman when he entered the block to turn on the light without any order from the conductor. it was the duty of the conductor to notice the light and see that the motorman did his duty in that respect. If one was negligent, both were. There is, therefore, no question of superior servant in regard to turning on the light, which is conceded to have been the act of negligence which caused the collision and injury. In Howe v. Northern Pacific Ry. Co., 30 Wash. 569, 70 Pac. 1100, 60 L. R. A. 949, we held that a brakeman was not a fellow servant with a conductor on his train, because in that case the brakeman was subordinate to the conductor and was not required to place signals except upon orders of the conductor. In that case the superior servant doctrine was therefore applicable and was sustained. In Conine v. Olympia Logging Company, 36 Wash: 345, 78 Pac. 932, we held that a signal man was not a fellow servant with the engineer of a logging engine, where the master had furnished no means of communication from the engineer to the signal man. That case can have no controlling influence in this case, because here the master had provided means of communication which was sufficient for the purpose and which appliance was no used by either servant. In the case of Northern Pacific R. R. Co. v. O'Brien, 1 Wash. St. 599, 21 Pac. 32, this court held that a conductor and engineer on a railway

But

in particular cases bring the injured party within the rule of fellow servant. In determinating who were fellow servants we have said that servants must not only be engaged in a common employment, but must have orpportunity to use precautions against each other's negligence. Grimm v. Olympia Light & Power Co., supra, and cases there cited. In this case the motormen were engaged in the same common employment, that of operating street cars over the same line. They necessarily met each other every hour of the day, because the time from Seattle to Renton consumed but 47 minutes. They took their cars from the same barn, and the same rules were furnished to each. There was such co-association and co-operation in the same line of employment as that each one necessarily knew the habits and capacity of the other and had opportunity of exercising mutual influence upon the other. This made them fellow servants within the rule which we have heretofore laid down. It is true that one of the allegations of negligence in the complaint was that the master failed to furnish a sufficient block system upon the block where the collision occurred, but the respondent testified that, if the motorman on the south-bound car had turned his lights south when he entered upon the block, the accident could not have occurred; because respondent in that event would have seen the lights and remained at Norman street or returned to that point. It was nowhere claimed that the light system was defective in its construction or operation, and the statement that the accident could not have happened if the light had been used, indicates that the system was sufficient for the purposes for which it was intended, and was reasonably safe, which is all that is required. C. & E. I. R. R. Co. v. Driscoll, 176 III. 330, 52 N. E. 921. The respondent knew the system; he had worked under it for about 18 months, and had made no complaints concerning it. He knew the rules required the motorman to turn on the lights'

on entering the block. The rules and system were for the protection of the motormen as well as for the protection of passengers. The appliances were reasonably safe, and it was the duty of the motorman to use them for the purpose of preventing collisions and delays. Under the evidence of respondent above stated, assuming that he was correct in his construction of the rules that it was the duty of the motorman on the south-bound car to turn his light, it was the duty of the trial court to take the case from the jury upon the motion of the appellant, upon the ground that the act of negligence directly causing the collision was the act of a fellow servant. It may be said, in justice to the trial court, that the case of Grimm v. Olympia Light & Power Company had not been decided when this case was tried.

The judgment is reversed, with directions to the lower court to dismiss the action.

[blocks in formation]

The Legislature having provided no official seal for county treasurers, the words "under the official seal of his office" in Laws 1897, p. 184. c. 71, § 103, as amended by Laws 1899, p. 299, c. 141, § 18, providing that on sale of land for taxes the county treasurer shall execute to the purchaser a tax deed, and the deed so made by him. under the official seal of his office, shall be recorded in the same manner as other conveyances of real estate, and shall vest in the grantee the title, are mere surplusage, and without effect.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Taxation, § 1524.]

2. CONSTITUTIONAL LAW-RETROACTIVE LAWS -CURATIVE ACTS-TAX DEEDS.

Laws 1903, p. 14. c. 15, § 2, which, after the act has provided that the county treasurer shall have an official seal, provides that where the county treasurer shall have executed a tax deed prior to the taking effect of such act, it shall not be deemed invalid by reason of the treasurer not having affixed a seal of office to it, or having affixed a seal not an official seal; nor shall said deed be deemed invalid by reason of the fact that, at the date of the execution of the deed, there was no statute providing for an official seal for the office of county treasurer, is not void because of its retroactive effect, even if when the deed was executed there was a law requiring the treasurer to affix to it the official seal of his office. the attachment of his seal not being a prerequisite to his jurisdiction, but a mere matter of detail, which the Legislature might have dispensed with without violation of any constitutional provision.

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

Condemnation proceedings by the Spokane Terminal Company against L. P. Stanford

and wife and the Washington Safe Deposit & Trust Company. From a judgment in favor of Stanford and wife and against said Safe Deposit & Trust Company on an issue between them as to the right to the award, the Safe Deposit & Trust Company appeals. Affirmed.

Cullen & Dudley, for appellant. Munter & Jesseph, for respondents.

DUNBAR, J. This action was instituted by a petition filed by the Spokane Terminal Company for the condemnation of lots 30 and 31, in Second addition to Third addition to Railroad addition 'to Spokane Falls. In the petition it was alleged that the defendants L. P. Stanford and wife were the owners of the lots, and that the defendant the Washington Safe Deposit & Trust Company claimed some lien thereon or interest therein. The Washington Safe Deposit & Trust Company appeared and filed an answer, denying the ownership of the lots by the Stanfords, alleging title in itself, and that the Stanfords occupied the lots as tenants of itself and its predecessors in interest. The Stanfords replied, denying the allegations of ownership in the appellant, and tenancy, and alleged affirmatively title in themselves under a tax deed issued by the treasurer of Spokane county, March 17, 1902. The condemnation proceedings were tried out, and an award of $1,200 made by the jury, and judgment entered appropriating the lots to the terminal company upon payment of the award. The issues raised by the appellant's answer and the reply of the Stanfords were not tried at that time, and the judgment entered in the condemnation proceedings provided, among other things, that it appearing that there was a contest between the defendants concerning the title to said premises and to the right to the money awarded, the amount of the judgment when paid should be retained in the registry of the court until the determination of the rights of the respective defendants to the indemnity proceedings. The award was paid into the court. The issues between the respondents Stanford and wife and the appellant came on for hearing, and, upon such hearing, judgment was entered holding that the title to the lots at the time of the condemnation was in the Stanfords and that the appellant had no interest therein, and ordering that the money deposited in the court by the terminal company be paid to the Stanfords. From this judgment the appeal is taken. So that the issues relate solely to the title to the lots condemned. The case was tried without a jury and no findings of fact or conclusions of law were made or filed.

The assignments are (1) that the court erred in failing to find the respondents L. P. Stanford and wife were tenants of the appellant's predecessor in interest; (2) the court erred in refusing to hold that the re

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