the verdict was a correct one; as we have. [ for defendant had filed a motion for a change But he did not say, and we think did not mean to infer, that the verdict was in his opinion not sustained by the evidence, or was contrary to the weight of the evidence. He meant simply that he was in doubt upon that question. The judgment must therefore be affirmed. DUNBAR, C. J., and GOSE, J., concur. FULLERTON, J., concurs in the result. (64 Wash. 511) STATE ex rel. NELSON v. YAKEY, Judge. (Supreme Court of Washington. Aug. 10, FECT. 1911.) of judge, under the act of March 18, 1911 (Session Laws, p. 617). On July 1st, a supplemental affidavit was made under the same statute. On July 10th, Judge Yakey, the respondent here, against whom the affidavit had been directed, granted an order restraining defendant, Nelson, the relator, from going to the home occupied by plaintiff, and from in any manner harassing or annoying her. An order to show cause why the order should not continue pendente lite was made returnable on July 15th. On that day, the matter coming on before Judge Yakey and the objection to his jurisdiction being urged, he made an order continuing the hearing until July 31st, at which time it seems to be 1. JUDGES (§ 51*) - DISQUALIFICATION-EF-conceded that another judge was to be called Under Session Laws 1911, c. 121, authorizing a change of judge or a change of venue for prejudice of the presiding judge, the judge may proceed to make proper orders in a pending case until an affidavit of prejudice is formally called to his attention, but when that is done he can only transfer the action to another department of the same court, or procure a judge from another court, or change the venue of the action. [Ed. Note.-For other cases, see Judges, Cent. Dig. §§ 224-231; Dec. Dig. § 51.*] 2. JUDGES (§ 56*) — DISQUALIFICATION - EF FECT. Where the power of a superior court judge to act had not been arrested by an affidavit of prejudice, under Session Laws 1911, c. 121, authorizing change of judge or change of venue for prejudice of the judge, he could grant a restraining order and hold the parties and the property, subject to the jurisdiction of the court, in statu quo, and after the filing of the affidavit, he could continue the temporary restraining order until a designated date, to be then heard by another judge, who would be called in the affidavit of prejudice not destroying the jurisdiction of the judge, but merely arresting his power to pass on an issue or the merits of the case. [Ed. Note.-For other cases, see Judges, Cent. Dig. 8 235-245; Dec. Dig. § 56.*] 3. JUDGES (§ 51*) DISQUALIFICATION CHANGE OF JUDGE CHANGE OF VENUE. Where an affidavit of prejudice of the judge is filed under Session Laws 1911, c. 121, authorizing a change of judge or venue for such prejudice, the judge must carefully consider whether he shall change the venue, or procure another judge in such a way as will not defeat or delay the progress of the action. [Ed. Note. For other cases, see Judges, Dec. Dig. § 51.*] Department 2. Writ of prohibition by the State of Washington, on the relation of Frank Nelson, against John B. Yakey, Judge of the Superior Court for Kitsal County. Writ denied. in to hear and determine the matter then pending. At this point, the controversy, of which the Nelson case is but an incident, was brought to this court upon the application of the relator for a writ of prohibition, with incidents having the character of mandamus, as will be seen by reference to his prayer: "(1) To make an order forthwith assigning the said cause of Sarah Nelson, plaintiff, v. Frank Nelson, defendant, to some other judge for trial. (2) To cancel and hold for naught that certain 'restraining order' and show cause made in said action on July 10, 1911, and thereafter continued on July 15, 1911. (3) To command the said judge to desist from making or enforcing, or attempting to make or enforce, any order or orders in the said cause." The cause came on for hearing before us on August 4th, and from the affidavits and return we find that this proceeding arises out of a dispute of fact. The attorneys for the relator insist that the Nelson case was called by the court on June 26th, at which time respondent's attention was called to the affidavit of prejudice, and that he then said that he would not make a definite ruling, but would probably grant a change of venue in all cases where such affidavits had been filed; that, notwithstanding such ruling, the court did make the show-cause order, even after the supplemental affidavit of prejudice had been made. The conduct of the attorneys for relator seems to have been consistent with the idea that they believed their motion had been called to the attention of the court. On the other hand, the return of the respondent shows, and in this he is supported by the silence of the clerk's record, that the Nelson case was not specially called to his attention, Bryan & Ingle, for plaintiff. James W. and that no order was made therein, and Carr, for respondent. CHADWICK, J. On the 9th day of June, 1911, there was pending in the superior court for Kitsap county an action, wherein Sarah Nelson is plaintiff and Frank Nelson is de fendant. On that day one of the attorneys that at the time he made the show-cause order the motions for a change of judge had not been heard; that when they were brought to his notice he at once disclaimed any purpose of participating in the case, and continued the case until another judge could be called in. The respondent is supported in his For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes could not make an order setting the case, or any proceeding incidental thereto, down for hearing at some future date. In the arguments of counsel, too much importance is attached to the word "jurisdiction." The jurisdiction of the judge or of the court is not destroyed by the affidavit of prejudice. Giv statement by the clerk's minutes, or rather the lack of any minute or journal entry, showing a hearing on June 26th. Hence we are called upon to construe the statute above cited, section 1 of which reads as follows: "No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding when it shall be estab-ing it the sense in which it is here used, it lished, as hereinafter provided, that such does no more than arrest the power of the judge is prejudiced against any party or at- judge to pass upon an issue or the merits of torney, or the interest of any party or attor- the case. It follows that we cannot hold ney appearing in such cause. In such case that the respondent is guilty of any abuse, the presiding judge shall forthwith transfer because of his order continuing the showthe action to another department of the same cause order until July 31st. court, or call in a judge from some other court, or apply to the governor to send a judge, to try the case; or, if the convenience of witnesses or the ends of justice will not be interfered with by such course, and the action is of such a character that a change of venue thereof may be ordered, he may send the case for trial to the most convenient court." It is complained that July 31st has come and gone, and no judge appeared to try the case; but for this there may be indeed, the record suggests a sufficient reason, for the prayer of relator's petition asks us to hold for naught respondent's show-cause order of July 10th. It was a hearing upon this order that was set for July 31st, and it no doubt occurred to the respondent that it would be idle to call another judge at a time when the effect of the order, as well as the order itself, had been brought to this court upon relator's application. Finding as we do that the respondent has kept within the bounds of the statute, relator's petition is denied, and the cause is re fix a new date for hearing the order to show cause, and to call another judge to hear the same. [1] The power of the judge against whom the affidavit is directed is the first question to consider. Under the practice prevailing in this state, of bringing the pleadings and files in a case to the attention of the court by notice to the opposite party and a notation thereof on the court's docket, it must be held that, until the affidavit of prejudice is formal-manded, with instructions to respondent to ly called to the attention of the judge, he may with all propriety proceed to make any order which, in his judgment, is proper to be made. However, after the affidavit has been brought to the attention of the judge, his power to proceed and the limit of his power find bounds in the statute, and he can only "forthwith transfer the action to another department," etc. Under the record here presented, the parties differing radically as to the fact, we cannot hold, in the light of the clerk's record and the order of July 15th, that respondent has acted arbitrarily, or with any desire to hold jurisdiction over the objections of the relator. [3] This statute is novel, and introduces a new rule of practice. Like almost all instruments designed for protection, the statute may be subject to abuse. We feel warranted, therefore, in saying that we are not disposed to give it a construction that will operate to defeat or delay the progress of a case in those counties where there is but one judge. When the motion is made, the judge should in all cases carefully consider that provision of the law, wherein it is said, "if the convenience of witnesses or the ends of justice will not be interfered with and the action is of such a character that a change of venue may be ordered, he [the local judge] may send the case for trial to the most convenient court;" for we may take judicial notice that it is not always convenient for a superior judge to do the bidding of another, or of the Governor. More than this, the public has an interest in the dispatch of litigation, and to hold that a judge must journey from his own court to hear every motion, demurrer, or application for an order would tend to intolerable delay; and, if a case in its progress were handled by several judges, as it might be, to insufferable confusion. [2] The next question is, Did the respondent have jurisdiction, the motion for a change of judges having been brought to his attention on July 15th, to continue the temporary restraining order until it could be heard by another judge? Our former discussion would seem to be a sufficient answer; for manifestly his power to act, not having been arrested at the time the order was made, he would have the right to hold the parties and their property, if subjected to the jurisdiction of the court, in statu quo, until the merits of the controversy could be tried by another. To hold otherwise would be to put it in the power of any litigant to defeat an order of the court formally entered, by attacking the fairness of the judge under the new statute. Nor do the terms of the statute seem to warrant us in holding (whatever its design may have been) that the judge impugned | MORRIS, JJ., concur. Writ denied. DUNBAR, C. J., and ELLIS, CROW, and (64 Wash. 523) NEAL et al. v. PHOENIX LUMBER CO. (Supreme Court of Washington. Aug. 10, 1911.) 7. MASTER AND SERVANT (§ 97*)-INJURIES TO SERVANT-ACCIDENTS. The millwright of a mill which received its power from a river was drowned in the wheel pit owing to the breaking of the penstock under 1. PLEADING (§ 316*)-APPEAL AND ERROR Pressure from the water of the river. The river (§ 960*)-DISCRETION OF was at a higher stage than it had before been TRIAL COURTBILL OF PARTICULARS. known, and the penstock was not constructed The granting or refusing of a bill of par-Held, that as an employer is presumed to be so as to withstand great pressure from without. ticulars rests in the sound discretion of the familiar with the dangers, latent as well as pattrial court, which will not be disturbed except ent, ordinarily accompanying the business in in case of abuse, especially where the suit is which he is engaged, the breaking of the penbrought by the heirs or personal representatives stock and resultant death of the millwright was of a decedent. not an accident, for which the master would not be liable. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 951; Dec. Dig. 316;* Appeal and Error, Cent. Dig. §8 3825-3833; Dec. Dig. § 960.*] 2. PLEADING (§ 317*)-BILL OF PARTICULARS -RIGHT TO PARTICULARS. In an action for the wrongful death of a millwright who was drowned in the wheel pit, where the complaint alleged that the penstock was negligently and improperly constructed, not being built so as to resist the force of the waters of the river when the penstock was empty and the river was high, the defendant was not entitled to a bill of particulars showing the negligent construction of the penstock. [Ed. Note. For other cases. see Pleading, Cent. Dig. $$ 954-962; Dec. Dig. § 317.*] 3. MASTER AND SERVANT (§ 276*)-INJURIES TO SERVANT-ACTIONS EVIDENCE-SUF FICIENCY. In an action by the heirs of a millwright, drowned in the wheel pit of the mill, owing to the breaking of the penstock, evidence held to warrant a finding that the penstock was structurally insufficient to withstand the pressure of the waters from without when it was empty. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 950-976; Dec. Dig. 8 276.*] 4. MASTER AND SERVANT (§ 286*)-INJURIES TO SERVANT-SAFE PLACE TO WORK-DUTY OF MASTER QUESTION FOR Jury. Where the pressure from the waters of the river which supplied the motive power for a mill broke the penstock, and a millwright was drowned in the wheel pit, the master was not excused as a matter of law merely because the river was higher than it had theretofore been known, for the master knew of the height of the flood and the amount of pressure upon the penstock. [Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 286.*] 5. MASTER AND SERVANT (§§ 101, 102*)--INJURY TO SERVANT-SAFE PLACE TO WORKDUTY OF MASTER. A master is not an insurer of the safety of the appliances with which he supplies his serv ants. [Ed. Note.-For other cases, see Master and Servant. Cent. Dig. 88 172-184; Dec. Dig. § 101, 102.*] 6. MASTER AND SERVANT (§ 286*)-INJURIES TO SERVANT-ACTIONS-EVIDENCE-SUF FICIENCY. In an action for the death of a servant of a mill company, evidence held to raise a question for the jury whether the master in the exercise of reasonable care should have anticipated the high water in the river, and that it would be necessary to empty the penstock and send a servant into the wheel pit during high water. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 286.*] Servant, Cent. Dig. § 163; Dec. Dig. § 97.*] [Ed. Note.-For other cases, see Master and 8. MASTER AND SERVANT (§§ 217, 234*)—INJURIES TO SERVANT-ASSUMPTION OF RISKCONTRIBUTORY NEGLIGENCE. The millwright and foreman of a mill run by water power was not an engineer and had had no engineering training. It appeared that, when he became foreman, the penstock of the mill was not properly constructed to withstand the pressure of the waters from without. It was his duty to maintain the efficiency of the plant. Held, that he did not assume the risks from the original faulty construction of the penstock; and hence, for the same reason, he was not guilty of contributory negligence in going the penstock was empty. into the wheel pit during high water and while [Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 574-600, 706-709; Dec. Dig. §§ 217, 234.*] 9. DEATH (§ 99*)-DAMAGES-EXCESSIVENESS. Where deceased was 36 years of age, in good health, earning about $1,400 a year, and with a life expectancy of 31 years, an award of $13,500 damages for his death was not excessive, where he left a wife 26 years old and a daughter 7. [Ed. Note.-For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.*] 10. DEATH (§ 104*)-DAMAGES INSTRUCTIONS. In an action for the death of a servant, a charge that the jury should consider what sum of money the deceased would probably have ex7 year old daughter from the period of his death pended in the education and maintenance of his until she should have reached the age of 18, was live to that age, for the jury, knowing the unnot objectionable in assuming that she would certainty of human life, must have read into the language an exception in case of her death. [Ed. Note. For other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. § 104.*] Department 1. Appeal from Superior Court, Spokane County; J. Stanley Webster, Judge. Action by Florence H. Neal and Marguerite M. Neal by her guardian, Florence H. Neal, against the Phonix Lumber Company. From a judgment for plaintiffs, defendant appeals. Affirmed. Post, Avery & Higgins, for appellant. Graves, Kizer & Graves, for respondents. GOSE, J. The plaintiffs are, respectively, the widow and minor daughter of Charles Neal, deceased. Charles Neal was drowned in the wheel pit at the defendant's mill while in its employ on April 2, 1910. It is charged that he lost his life in consequence of the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes negligence of the defendant. There was a verdict and judgment in favor of the plaintiffs for $13,500. The defendant has appealed. Succinctly stated, the complaint alleges that the appellant corporation is engaged in the operation of a sawmill, the motive power being furnished by the waters of the Spokane river, conducted through a flume into a penstock, thence through another flume upon turbine wheels which through the power of the water operates the machinery of the mill; that the construction of the penstock was negligent, unscientific, and improper in its original design and its construction, in that it was not built so as to resist the force of the waters from without when the river was high and the penstock was empty; that it became the duty of the deceased in the discharge of his duties as a millwright to enter the wheel pit in order to repair the wheels; that to do so he closed the gates of the flume for the purpose of emptying the penstock and wheel pit; and that, while repairing the wheels, the penstock gave way in consequence of the pressure of the water of the river from without, immediately causing his death by drowning. Before answering, the appellant moved the court to require the respondents to furnish a bill of particulars, showing in what respect the penstock was negligently or improperly or unscientifically constructed. The denial of this motion suggests the first error claimed. [1] The granting or refusing a bill of particulars rests in the sound discretion of the court, and its conclusion will not be disturbed except for abuse of discretion. Turner v. Great Northern Ry. Co., 15 Wash. 213, 46 Pac. 243, 55 Am. St. Rep. 883. The rule stated is peculiarly applicable where the suit is waged by the heirs or personal representatives of a deceased person. Donohue v. Meares, 65 Hun, 620, 19 N. Y. Supp. 585. [2] The ultimate fact alleged is that the penstock was so negligently constructed that, when it was emptied and the river was high, it would not and did not withstand the pressure of the water, and that the deceased while in the discharge of his duty came to his death in consequence of such defective construction. We think the appellant was sufficiently advised of the negligence relied upon for a recovery. It had owned and operated the plant for about 12 years. Its mill is situated upon and across the south channel of the Spokane river. It knew that the penstock was made of wooden material, formed by nailing heavy plank on the inside of large vertical timbers, and that there were no inside upright or cross timbers. [3] At the close of respondents' evidence the appellant moved for a nonsuit; and at the close of all of the evidence it moved for a judgment. The denial of these motions is the next error suggested. It is said that the evidence does not tend to show (1) that the appellant knew, or by the exercise of reason able care could have known, of the fact that the penstock was not constructed to withstand the pressure of the water from without when the river was high and the penstock was empty; and (2) that it does not tend to show that the deceased did not know, or in the exercise of reasonable care could not have known, of the weakness of the penstock in that respect. These suggestions necessitate a brief statement of the facts disclosed by the record. The appellant acquired the mill by purchase in 1898, had it examined and somewhat remodeled, and thereafter operated it without accident, so far as the record discloses, until the happening of the accident involved in this suit. There is no evidence that any change was made or suggested in the flume or penstock. The Spokane river has its source in Lake Coeur d'Alene, which is fed by mountain streams, and is therefore subject to sudden rises. The south branch of the river upon which the mill is situated was somewhat higher on the last of March, 1910, than it had theretofore been known. The waters were receding on the 2d of April when the accident happened. The mill had then been shut down for about 10 days to await a subsidence of the waters and the repair of the wheel. The waters of the main channel of the river were some two feet higher in 1894 than in 1910. A short distance above the appellant's mill the river divides, forming what is termed the north and south channels. The presence of a wingdam in the main channel and the closing of a branch of the south channel, which formerly flowed into the north channel at a point above the appellant's mill, were facts known to the appellant before the accident, and caused the south channel to carry more than its proportion of the waters of the river. The appellant's manager knew that the deceased was intending to empty the penstock the wheel. The flume is 27 feet in width at and wheel pit for the purpose of repairing the intake, 152 feet at the penstock, and has a depth of 9 feet. The penstock extends 12 feet below the bottom of the flume, giving it a depth altogether of about 21 feet. The dimensions of the penstock are 151⁄2 by 71⁄2 feet. All the measurements stated are inside measurements. The framework of the penstock consists of timbers 14 by 14 and 12 by 12, placed 2 feet apart, outside measurement, and sustained by truss rods or braces. Planks were nailed to the inside of these timbers. The first 5 planks from the bottom where the greatest pressure was exerted were 4 by 12. The remainder were 3inch plank. The cylindrical flume leading from the penstock to the wheel pit and the wheels is about 8 by 9 feet. The waters of the river were running over the top of the flume on the day of the accident. The evidence of the civil engineers shows conclusively that the penstock was not constructed so as to withstand the pressure of the water from without when the river is high and the penstock is empty, in that there were no inside upright timbers or crossbeams or braces. The deceased knew of the physical facts, except the force exerted by the pressure of the water and the resisting power of the penstock from the force without. He was not a constructor or hydraulic engineer. He commenced working in a mill as a common laborer when he was 16 years of age. He began working for appellant as a trimmer in 1898, and continued at that work for three years. He then worked for it as an edger man for four or five years, when he became its foreman and millwright, continuing in that capacity until his death. He had been foreman for about four or five years. It was his duty to see that the mill flume and penstock were kept in repair. But it was not his duty to have the plant inspected with a view to determining its structural sufficiency. From the facts stated it is obvious that the jury were warranted in finding that the appellant by the exercise of reasonable care could have ascertained the structural insufficiency of the penstock before the happening of the accident. This is made clear from the evidence of the civil engineers. [4] Nor does the fact that the south branch of the river was higher than it had theretofore been known relieve it as a matter of law. It knew, as we have said, that the south channel was carrying more than its proportion of the waters of the river, and it was a question for the jury whether, knowing that fact, it had exercised the care that reasonable prudence required considering the forces surrounding it. [5] It is true, as the appellant states, that it is not an insurer of the safety of the instrumentalities which it employs. properties of the material substances which he uses, and the physical and mechanical laws which operate upon them." 1 Labatt, Master & Servant, § 129a. "For injuries caused by his failure to foresee the results of the operation of natural laws which he is presumed to comprehend the master is liable, even though such results may be of an unusual character." Id. § 141. See, also, Chicago, etc., Ry. Co. v. Riley, 145 Fed. 137, 76 C. C. A. 107; Latorre v. Central Stamping Co., 9 App. Div. 145, 41 N. Y. Supp. 99; Scagel v. Chicago, etc., Ry. Co., 83 Iowa, 380, 49 N. W. 990. The true criterion is stated in Wabash, etc., Ry. Co. v. Locke, 112 Ind. 404, 14 N. E. 391, 2 Am. St. Rep. 193, cited by the appellant: "The rule deducible from the authorities in cases analogous to the present is that in order that liability shall attach for an injury occasioned by something, not inherently dangerous and defective, which is found upon the ground of, or in use by, one who is under a qualified obligation to the injured person, it must be shown that the defendant either knew, or that by the exercise of such reasonable skill, vigilance, and sagacity as are ordinarily possessed and employed by persons experienced in the particular business to which the thing pertains, he should have known of its defective and dangerous condition, and that the natural and probable consequence of its use would be to produce injury to some one." The difficulty lies in the application of the rule. The appellant argues that this question should be ruled in its favor by the court as a matter of law, whilst we think that the facts of the case warranted its submission to the jury. As was said in Koontz v. Chicago, etc., Ry. Co., 65 Iowa, 224, 21 N. W. 577, 54 Am. Rep. 5, also cited by the appellant: "Ordinary care does not require that every possible contin against, but only such as are likely to occur." And as was said in Carter v. Cape Fear Lumber Company, 129 N. C. 203, 39 S. E. 828: "It is right that one should be required to anticipate and guard against consequences that may be reasonably expected to occur, but it would be violative of every principle of law or justice if he should be compelled to foresee and provide against that which no reasonable man would expect to happen." In answer to a special interrogatory the jury found that the penstock broke because of its faulty construction. The evidence of the civil engineers is that the penstock when empty could not reasonably be expected to withstand the pressure of the water around it, even at low water. [6] However, the jury, we think, were warranted in concluding that an exercise of reasonable care upon its part required it to an-gency must be anticipated and guarded ticipate that it might become necessary to empty the penstock when the river was at its flood for the purpose of repairing the wheels. That work could only be done when there was no water in the penstock or wheel pit. Indeed, it knew that fact at the time the deceased entered the wheel pit to repair the wheel preparatory to putting the mill into operation. It was for the jury to determine whether the exercise of reasonable care required the appellant to anticipate that high water, an empty penstock, and an employé in the wheel pit, might occur at the same time. [7] The death of the deceased cannot be attributed as a matter of law to accident, or to unusual or extraordinary causes which an employer exercising reasonable care considering the surrounding forces could not have anticipated. "It is well settled that an employer is presumed to be familiar with the dangers, latent as well as patent, ordinarily accompanying the business in which he is engaged. This doctrine requires him to take notice of the normal characteristic * [8] The next question is more difficult, viz., Was the deceased, as foreman of the mill, in the exercise of reasonable care, required to know of the structural weakness of the penstock? We think that under the facts stated this was a question for the jury. He was not an engineer. Such knowledge as he had |