to imagine a more unsafe method of shipping dynamite than that adopted in this instance by the appellant. It is perfectly apparent that the danger of an explosion would have been greatly reduced, if not absolutely avoided, by putting an ordinary wooden cover on the box, and which was presumably within reach of the appellant.

Error is also predicated upon the third instruction given to the jury. In that instruction the jury were charged that the servant assumes the ordinary risk incident to the service after the master has used such care as a reasonable and prudent man would exercise under like circumstances, when using dynamite or giant powder, for the safety and protection of the servant, commensurate with the danger to be reasonably apprehended from the service; and if the master fails to use such care and caution, and an injury results therefrom, it is not a risk incident to the employment, and the master is liable therefor, unless the danger was open and apparent, or the servant had actual knowiedge thereof. It is not contended that the court did not state the law correctly in this instruction, but it is claimed that it should have gone further, and explained to the jury the application of the law to the case on trial in view of the pleadings and evidence. All that need be said in answer to this objection is that, if appellant desired further instructions upon this point, it should have requested the court to give them at the proper time.

It is also claimed that the court erred in charging the jury that in using high, dangerous explosives the master owed a duty to the servant to employ experienced agents who knew the danger ordinarily incident to its use, and the proper method of manipulating it with reasonable safety, and have the servant whose duty it is to come in contact therewith properly instructed and informed as to such danger. It is urged by the appellant that this instruction is objectionable for the reason that there is no allegation or proof respecting the particular matters therein mentioned. Had the appellant limited his exception at the trial to that part of instruction numbered 4 here complained of, there would be more force in its contention. But its exception went to the entire instruction, which, as a whole, is not subject to the only objection urged against it, namely, that it is outside of the case as made before the jury.

Nor do we see any substantial merit in appellant's objection to that part of the seventh instruction wherein the jury were told that, if they believed from the evidence that said dynamite, by the negligence of the defendant railway company, was exploded without any fault of this plaintiff, and that the plaintiff sustained injuries by reason of such explosion, then they should find a verdict for the plaintiff. The contention that the court erred in giving this instruction is based solely on the proposition that it failed there

in or elsewhere to define the negligence for which the appellant would be liable in the case at bar. This is but another instance of an objection, not to what the court did say to the jury, but to what it did not; and we have already pointed out the remedy which ought to be pursued in such cases. See, also, Allend v. Railway Co., supra.

It is further contended that the court erred in charging the jury that the master, in employing a servant, impliedly engages with him that the place in which he is to work, and the tools, machinery, and surroundings of his work, or in which he is to be placed, shall be reasonably safe. In support of this contention it is urged that the question whether the respondent had been furnished with a safe place in which to do his work was in no wise involved in the case. It must be conceded, as claimed by appellant's counsel, that the respondent, when he was riding in the caboose, was not in a place provided him wherein to work; but it was, nevertheless, a place where he had a right to be at the time, and we think it is quite clear that when the appellant furnished him a caboose in which to ride it impliedly engaged with him, as the learned trial court observed, that it was "reasonably safe" for that purpose.

The instruction given to the jury upon the question of fellow servants is also complained of, but, as what we have already said upon that subject disposes of the objection, no further comment is necessary.

There was some testimony upon the trial to the effect that before the explosion in question occurred some of the men who were in the caboose were smoking cigarettes and scuffling, but whether these men were near the box of dynamite or in some other part of the caboose at the time is not disclosed by the evidence. In view of this testimony the appellant requested the court to charge the jury that: "If you find from the evidence that the co-employés of the plaintiff, while riding in the caboose where the giant powder or other explosive was being carried, and that some of the co-employés or fellow servants of plaintiff were smoking cigarettes in such caboose, and scuffling therein, and that the said explosive might have become ignited from the fire in smoking cigarettes, and that there is as much probability that the explosion happened in that way as from sparks from the engine, then you should find for the defendant." The court refused to instruct the jury as thus requested, and this ruling of the court is assigned as error. At first blush we were inclined to the opinion that this instruction should have been given as requested, and that the refusing to give it was prejudicial error; but upon further reflection, and in view of the duty imposed by law upon those who use or have the custody of dangerous instruments or agencies to exercise the greatest care to prevent others from being injured thereby, we have concluded that the request was properly refused. According to the better authorities,

it was the duty of the railway company to exercise the highest degree of care and diligence in the custody of the dynamite, in order to protect those who were in the caboose from injuries which would probably and naturally result from an explosion of it, and, not having done so, it must be held liable for the consequences of its want of care. It is said by Shearman & Redfield, in section 154 (5th Ed.) of their work on Negligence, that "a master who intrusts a servant with the charge of some inherently dangerous thing (e. g. an explosive) is responsible for the omission of the servant to keep it safely, and, therefore, for his malicious use of it for mischievous purposes." And in Railway Co. v. Shields, 47 Ohio St. 387, 24 N. E. 658, it was held (quoting from the syllabus, which correctly states the conclusions of the court) that: "The law requires of those who use dangerous agencies in the prosecution of their business to observe the greatest care in the custody and use of them. This duty cannot be shifted by the master from himself to his servants, so as to exonerate him from the negligence of the servant in the use and custody of them. Where they are so intrusted, the proper custody, as well as the use of them, becomes a part of the servant's employment by the master; and his negligence in either regard is imputable to the master in an action by one injured thereby." In that case the railway company was held liable for injury to a small boy, caused by the explosion of a torpedo negligently and wantonly left on its track by one of its servants at a place where children and others living along the line of the track were in the habit of passing with the knowledge and acquiescence of the company.

The torpedo

was picked up by one of the companions of the plaintiff, and caused to be exploded by hitting it. In the well-considered case of Powers v. Harlow, 53 Mich. 507, 19 N. W. 257, in which the opinion of the court was delivered by Judge Cooley, an owner of land was held liable for injuries occasioned to a child by the explosion of a dynamite cartridge which he had left in an open shed on his premises in a box of sawdust, and which the child discovered and exploded by striking it with a rock. And in Tissue v. Railroad Co., 112 Pa. St. 91, 3 Atl. 667, it was ruled that it is the duty of the master to know, as far as it is possible to know, the character of such material as dynamite which he places in the hands of his agents; and, if he negligently places it in such a position as to expose his servants to a danger to which they might not be exposed, he is liable for any damages resulting from such negligence. And it was there held that it was a question for the jury to determine whether it was negligence on the part of the railroad company to permit a large quantity of dynamite to be stored in such a position that an accidental explosion of it might result in death or injury to its servants. In that case a servant of the defendant company was killed

by the explosion of dynamite which was used in the business of the defendant, and stored near the railroad track where the servant was required to work. What caused the explosion was not disclosed by the evidence, and the trial court directed a verdict for the defendant, but on appeal to the supreme court the judgment was reversed. See, also, Allison v. Railroad Co., 64 N. C. 382.

Although it appears to us from the evidence that the jury was somewhat liberal in awarding damages to the respondent, the amount is not so large as to indicate passion or prejudice on their part, and we therefore do not feel at liberty to disturb the verdict on the ground of excessive damages.

It is claimed by appellant that the court erred in the reception and rejection of testimony during the trial, but we are of the opinion that the objection to the ruling of the court in that regard is not well taken. The judgment is affirmed.

REAVIS and FULLERTON, JJ., concur.

DUNBAR, C. J. I am unable to understand the application of the authorities cited in the opinion to the instruction last com. mented upon. It seems to me that the quotations from Shearman & Redfield and from the case of Railway Co. v. Shields, 47 Ohio St. 387, 24 N. E. 658, amount to nothing more than an announcement of the general rule that the master is liable for the negligence of the servant, just as he would be if a conductor negligently operated a train. In such a case the custody and use of the train become a part of the servant's employment by the master, and the master cannot escape responsibility to one who is injured. The same may be said of Powers v. Harlow, 53 Mich. 507, 19 N. W. 257. In none of these cases is the question of fellow servant involved. The plaintiffs who were injured were all strangers, and the rule is laid down with reference to the responsibilities of the masters to strangers. Tissue v. Railroad Co., 112 Pa. St. 91, 3 Atl. 667, bears more nearly on the question involved, but it does not seem to me that it is exactly in point, for it does not appear there that the explosion was caused by the action of a fellow servant. But the rule is announced that the company is responsible to its servants when it permits a dangerous explosive to be placed in such quantity and position that an accidental explosion may result, and that the master will be responsible to his servant for damages arising from such negligent placing. I think, however, that any one who handles dangerous explosives should be held to the highest degree of care; that he should be as careful of the safety of his servants as of the safety of strangers; and that when the defendant shipped the powerful explosive which it did in this case in the manner which the testimony indicates, without sufficient covering, it was guilty of willful negligence,

and ought to be held responsible for the injuries inflicted upon the plaintiff in this case, even if it be conceded that it was the negligent act of a fellow servant which caused the explosion, when it is shown, as it is in this case, that the plaintiff was not aware of the exposed condition of the dynamite. The duty should not be imposed upon him to contemplate the existence of such a hidden danger, or to guard against it. For this reason I concur in the judgment announced.

(23 Wash. 610)

HALL v. UNION CENT. LIFE INS. CO. (Supreme Court of Washington. Dec. 27, 1900.) INSURANCE-PRINCIPAL AND AGENT-ADMIS

SIBILITY AGAINST PRINCIPAL-LIMITATIONS ON AGENT'S AUTHORITY SECRET AGREE

MENT-VALIDITY-TIME TO SUE-WRONGFUL

DELAY.

1. Where D. was appointed agent of defendant, and was held out by defendant as such agent, and no revocation of his agency was shown, D.'s testimony was not objectionable on the ground that a principal cannot be bound by the admissions of a discharged agent.

2. Where it was an agent's duty, under his contract with defendant, to collect premiums, the introduction in an action on a policy of such agent's admissions in reference to the collection of premiums was not objectionable as hearsay, and as not within the scope of the agent's authority.

3. Where an agent's contract clothed him with authority to solicit insurance and collect premiums for defendant, the fact that his contract of employment provided that he should be agent of defendant's general agent, and that no liabil ity was created by such contract against the defendant corporation, did not relieve defendant from liability for the agent's acts, since a principal cannot escape liability by secret arrangements with its agents of which the public can have no knowledge.

4. A policy of insurance provided that no action should be maintained on it after one year from the death of the insured. Defendant's general agent represented to the beneficiary that, if she would wait until the agent to whom the insured paid his premiums had returned from Klondike, the policy would be paid if such payments were made; and the agent did not return until after the expiration of the year. Held, that the representation of the general agent excused plaintiff's delay in bringing suit.

5. A finding of the jury, under such evidence, that a suit brought within one year and nine months after the death of the insured was not an unreasonable delay, cannot be set aside on the ground that such a delay was unreasonable as a matter of law.

Appeal from superior court, King county; E. D. Benson, Judge.

Action by Wisa H. Hall against the Union Central Life Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

John E. Humphries and Harrison Bostwick, for appellant. Martin, Joslin & Griffin, for respondent.

DUNBAR, C. J. This is an action by the respondent against the appellant on a policy of insurance issued upon the life of her husband, George E. Hall, deceased. On a trial by jury, verdict was rendered in favor of

the plaintiff for the amount sued for, and judgment was entered in accordance with the verdict, from which this appeal is taken.

There are some 21 assignments of error set forth in appellant's brief, the most of which are discussable under the second and third assignments, viz. that the court erred in denying the motion of appellant for nonsuit, and that the court erred in denying the motion of appellant in the challenge to the whole evidence, and in not taking the case from the jury. The substance of these objections might have been raised on error alleged in allowing incompetent testimony. It is contended by the appellant that defendant's challenge to the sufficiency of the testimony ought to have been sustained, for the reason that there was no testimony that the deceased had complied with the provisions and conditions of the policy; the only testimony introduced being declarations and admissions of one John Doser, who, it is admitted by the appellant. had formerly been a district agent for the appellant, and who, it is maintained by the respondent, was the agent at the time the declarations were made. Many authorities are cited by the appellant to sustain the prop osition that the admissions of a discharged agent are not competent evidence to bind such agent's former principal. Conceding, for the purpose of this investigation, the correctness of the rule contended for, the cases are not applicable to the facts proven in this case, as determined by the jury. As to the existence of Doser's agency, the plaintiff showed his appointment by the company, and there was no proof that such agency had been revoked. Under the rule that, where an agency is shown to exist, it will be presumed to continue until the contrary is proved, it must be concluded that Doser was the agent of the company at the time these alleged admissions were made. His first appointment was made in December, 1896, and was to continue for 10 years, unless terminated by service of notice upon him by the company. If there is anything in the proof that would indicate that he had been removed, it would be his second appointment in December, 1898, where he is appointed by P. F. Leavy, general agent of the Union Central Life Insurance Company; and it is not shown that this appointment was revoked prior to the time the alleged declarations were made. We think sufficient evidence went to the jury to sustain the verdict on that ground. In any event, the testimony shows that the company held him out as an agent, and it is bound by his acts. But it is contended by the appellant that these admissions, if made, were not of the res gestæ, were not within the scope of the agent's authority, and were mere hearsay; and many cases are cited in support of the contention that the admission of an agent must be made at the time of the contract. We do not think these cases are applicable to the case at bar. Doser's admis

sions were not with reference to the making or effect of any contract, but with relation to the payment of the premiums during the decedent's lifetime. Under the contract it was his duty to collect and pay to the company these identical premiums. Under such circumstances an admission in relation to such collections would be within the scope of his duties as agent, and the evidence was competent to bind the principal. Wright v. Stewart, 19 Wash. 179, 52 Pac. 1020. It is true that under the conditions of the contract between P. F. Leavy, who was the general agent of the company, and Doser, it is provided that, "although the said John Doser shall be styled and addressed as agent for said company, it is yet distinctly understood to be the purport and intent of this agreement that he shall be the agent o." said P. F. Leavy alone, and that no liability is hereby created against said company; nor shall said John Doser, party of the second part, create any such liability." It would seem that comment upon such a stipulation in an agreement was unnecessary. It is too late in the history of jurisprudence, if such time ever existed, to allow corporations or individuals to escape their honest liabilities by secret understandings between principals and agents of which the public has, and can have, no knowledge. Under this contract, which provides that Doser shall work for the company, although he was to be the agent of Leavy only, he is clothed with authority, not only to solicit and procure persons to insure with said company, but to collect and pay over the premiums to the agent of the company; and the company cannot escape its responsibilities when he does collect them from his patrons, and fails to turn them over to the company. Hart v. Insurance Co., 9 Wash. 620, 38 Pac. 213, 27 L. R. A. 86.

Another question involved raises the question of limitation of the commencement of the action. The policy provides that the action shall be commenced within a year from the death of the insured. The death of the insured occurred on October 27, 1897, and the action was not commenced until June 13, 1899, and it is contended by the respondent that the action is barred. But the testimony shows that the respondent was attempting to get her policy paid without the expense of a lawsuit; that she was told by Mr. Newbegin, who was then the general agent of the company, that the money would be paid if it was found that the payments had been made, and that it was best to wait until Mr. Doser, whom it was claimed the payments had been made to, and to whom the testimony shows the payments were actually made, returned from the Klondike country. On this proposition the evidence is conclusive and undisputed that the respondent was led by these representations on the part of the agent of the company to wait until after the year had expired. It

is insisted, however, by the appellant, that, even if that be true, the length of time was unreasonable. But that matter was submitted by the court to the jury By their verdict they have found that it was not unreasonable, and the court cannot, as a matter of law, under all the circumstances of the case, say that it was.

Many objections to the instructions of the court are made, and error is based upon the refusal of the court to grant the instructions asked for; but we think the court gave instructions that were applicable to the pleadings and circumstances proven upon the trial, that the law was properly given to the jury, and that, without particularly traversing them, the instructions asked by the appellant, and which were mostly based upon the theory of the case which we have been discussing, were properly refused.

It is insisted that the court erred in giving certain oral instructions after the request to have the jury charged by written instructions. In answer to this assignment it is sufficient to say that it does not appear from the record that any oral instructions were given by the court.

There is also an assignment to the effect that the court erred in overruling a demurrer to the respondent's complaint, but from the record we are unable to discover that any demurrer to the complaint was interposed.

There seems to be no meritorious defense to this action, and, no prejudicial error of law having occurred, the judgment will be affirmed.

ANDERS, REAVIS, FULLERTON, and WHITE, JJ., concur.

(23 Wash. 325)

ROBERTS v. SPOKANE ST. RY. CO. (Supreme Court of Washington. Nov. 28, 1900.) STREET RAILWAYS-COLLISION-NEGLIGENCE

-CONTRIBUTORY NEGLIGENCE—

INSTRUCTIONS.

1. The court cannot determine, as matter of law, that a speed of 21⁄2 miles an hour is not excessive for a street car with defective appliances for control, where passing at a street crossing another car going in the opposite direction.

2. Where a street car is equipped with defective appliances for control, to the knowledge of the company, it is not freed from responsibility for collision with a person coming suddenly in front of it, by the motorman, on discovering such person, doing all that he could with the equipments.

3. Failure to look and listen before crossing tracks of an electric railway in a public street is not negligence, as matter of law.

4. A requested instruction, in case of collision of a street car with plaintiff at a street crossing, that if he was guilty of an act of negligence directly contributing to the injury, or of any lack of ordinary care, or an omission to do what he ought to have done under the circumstances, which act or omission directly contributed to the accident, it would defeat a recovery, is properly refused, as requiring more than ordi

nary care.

5. The question of negligence in one street car passing another at a street crossing is one

of fact, in the light of all the evidence in the

case.

6. On the questions of contributory negligence of one who, riding on a bicycle close behind a west-bound street car, turns suddenly at a street crossing in front of an east-bound car, which he could not see till he was on the track, the fact that he was less than 11 years old is to be considered.

7. Though there was want of ordinary care in getting in front of a street car, if this does not contribute to the injury, but is a mere condition before the accident, the proximate cause of which is the negligence of the street railway, there may be a recovery.

Appeal from superior court, Spokane county; William E. Richardson, Judge.

Action by Edward Roberts, an infant, by Edward J. Roberts, his guardian ad litem, against the Spokane Street-Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Stephens & Bunn, for appellant. C. S. Voorhees, Reese H. Voorhees, and Albert Allen, for respondent.

REAVIS, J. Plaintiff, by his guardian ad litem, commenced an action against defendant, a street-railway company of Spokane, for personal injuries sustained through negligence of the company, and alleged that Spokane was a city with a population of over 30,000; that Riverside avenue, where the injury occurred, was one of the principal thoroughfares and public streets of the city, on which a large amount of business was transacted, and across which all the people of the city were accustomed and had a right to travel; that, by reason of the public use of the street, it was the duty of the defendant to use great care and caution in keeping its cars and machinery in proper condition and repair, as well as great caution in the operation and running of the cars over its tracks on Riverside avenue; that for a long time prior to the injury of plaintiff the defendant carelessly and negligently used and operated a car upon Riverside avenue which was broken, defective, and out of repair, in that the controller handle thereon (being the handle used for the purpose of turning the current of electricity off and on and controlling the car) was broken, and on account of such defect the power of the motorman operating the car, to control and regulate the current of electricity and to control the car in case of an emergency, was rendered uncertain; that by reason thereof it was dangerous to operate such defective car upon the street; that defendant was careless and negligent in operating such car in such dangerous and defective condition; that defendant at the time of the injury was running such car at a high and dangerous rate of speed along one of its tracks on Riverside avenue, meeting another car coming in the opposite direction on a parallel track, causing the two cars to meet and pass each other at a point where Riverside avenue is crossed by another public street, and which point of crossing was much frequented by public travel with

teams, bicycles, and on foot; and thai on the 8th of May, 1895, while plaintiff was lawfully traveling with a bicycle along, upon, and across Riverside avenue, at the crossing of the streets at the time of the meeting of the cars, he was caught, knocked down, and run over by the defective car and severely injured. Defendant answered the complaint, denying its negligence, and setting up that the injury, if any, received by plaintiff was caused directly, proximately, and solely by his fault and negligence, and without any fault or negligence of defendant, and that the father and guardian ad litem and the mother of plaintiff were guilty of contributory negligence, causing the injury, in allowing the minor plaintiff to escape beyond their custody and control.

In mentioning the facts established at the trial, where the evidence is conflicting only those facts will be considered which are substantially shown from the evidence adduced by plaintiff. At the time the injury occurred the plaintiff was between 10 years and 10 years and 9 months old. He was a boy of average capacity of that age, was accustomed to ride a bicycle in the streets of Spokane, and knew it was dangerous to collide with a street car in motion in the streets while ricing his bicycle. Prior to the accident he was holding to the west-bound car, in riding his bicycle, until within about a block and a half of the place where the accident occurred. The east-bound car, which collided with plaintiff, was running at a speed of about 21⁄2 miles per hour. If the plaintiff had looked before going on the track of the defendant in front of the east-bound car, he could not have seen the car in time to avoid the collision. The motorman on the eastbound car rang his bell to salute the passing west-bound car prior to the accident, but just how far distant does not appear. The motorman did not see the plaintiff on the bicycle in time to avoid the collision. The motorman had been in the employ of the defendant company for about two years, and was shown to have experience and capacity. He testified, in substance, that the car had eight wheels, was about 32 feet long, with motors' of the Thomson-Houston system, and that it was controlled by an upright controller in front, the reverse and controller lever resting on the same stand, but not on the same staff (that is, on the outside pipe); that there was one pipe for the controller part; that the center staff was the controlling staff, known as the "rheostat," which ran down to the bottom of the car on the front end to a sprocket, and down to the sprocket wheel, so as to control the connections underneath, known as the "rear connection," by a sliding contact; that on the same stand was the controller lever; that the controller lever had an upright handle; that there was a steel or wire spindle that went down from the lever that came out on the steel spindle; that each was worked by a loose handle, and, the handle being held tightly, it would turn on the