Dec. 1901.] Opinion of the Court-REAVIS, C. J.

through the office of the company, purchased supplies and shipped lumber for the purpose of erecting a hotel in Alaska; that their business was done and shipments were made in the name of the company, but that they failed to fully disclose the nature and extent of the business, so that the court is unable to determine the amount of the lumber or the supplies and stores that were thus shipped, or the various sums received therefrom, though the court found a large sum of money was invested in the venture and a large amount received therefrom. In fine, the court concluded, after hearing and allowing offsets for expenditures made attending the voyage of the Hera and the transportation and disposition of her cargo, that the profits of that venture and the amount appropriated by Duval and Fitch of the funds of the corporation was $26,560.34, for which judgment was entered against the said defendants in favor of the receiver. The court further found that, by reason of the concealment and failure to account for the proceeds derived from the hotel and other ventures, as mentioned, Fitch and Duval should be postponed in the distribution of the funds from the Hera venture to the claims of other creditors of the corporation.

Having concluded that the findings of fact are sustained by the record, no reversible error is perceived in the conclusions of law or the decree, and it is affirmed.

FULLERTON, ANDERS, DUNBAR and MOUNT, JJ., con

cur.

[No. 3999. Decided December 10, 1901.]

NICK NELSON, Respondent, v. S. WILLEY STEAMSHIP &
NAVIGATION COMPANY, Appellant.

CONTRIBUTORY NEGLIGENCE - WHEN QUESTION FOR JURY.

The question of contributory negligence is properly one for the jury, where reasonable men may fairly arrive at different conclusions from the state of facts proven.

MASTER AND SERVANT

JURIES VARIANCE.

ACTION BY SERVANT FOR PERSONAL IN

In an action for negligence in which the complaint alleges that "the first mate gave the order to the deck hands to take in the gang plank; that before said deck hands could get to the sides of said gang plank to lower the same to the deck as was customary, without warning said officer untied the rope which held said gang plank to the dock," causing it to slide and occasion the injury complained of, evidence that the captain blew a short blast of the whistle, which means to take in the gang plank, and that the mate, without any warning, let the plank go so that it came down on plaintiff, constitutes but an immaterial variance, since the order was given the mate to give to the crew, and was so understood and acted upon by them.

SAME- VICE PRINCIPAL ACTING AS FELLOW SERVANT LIABILITY OF
MASTER FOR NEGLIGENCE.

The failure of a vice principal to warn the servant of impending danger known to him, but not to the servant, will render the master liable for injuries resulting in consequence, though the vice principal at the time may be performing the duty of a fellow servant instead of a duty pertaining to his employment as a vice principal.

SAME- INSTRUCTIONS.

In an action by a deck hand to recover for injuries received by reason of the negligence of the first mate of a vessel, an instruction that the mate was a vice principal and not a fellow servant with the plaintiff, was proper, where it was alleged and admitted by the pleadings that the mate was authorized by defendant to hire and discharge the deck hands, with authority to superintend and direct them in and about the work for which they were employed.

Dec. 1901.]

Opinion of the Court-MOUNT, J.

Appeal from Superior Court, King County.-Hon. WILLIAM R. BELL, Judge. Affirmed.

George C. Israel, for appellant.

Bogle & Richardson, for respondent.

The opinion of the court was delivered by

MOUNT, J.-On June 18, 1900, appellant was a common carrier conducting a line of steamers between Olympia and Seattle, in this state. Respondent was an ordinary deck hand on board the "City of Aberdeen," one of appellant's steamers. This boat carried a gangplank weighing some eight or nine hundred pounds, for use in unloading freight, etc. While this steamer was lying at her dock in Olympia on the date mentioned, the gangplank was standing at an angle of forty-five or fifty degrees, connecting the steamer with her dock. When the boat was about ready to start on the trip from Olympia to Seattle, the captain gave a short blast of the steamer's whistle, which was a signal to "take in the gangplank and let go the lines." At the blast from this whistle it was the duty of the deck hands to take position around the gangplank preparatory to taking it on the boat. It was the duty of the mate (an officer on board said boat) to direct the deck hands in and about this work. It had been raining some on this day, and the deck of the steamer was wet and slippery. There were four deck hands on board, at different places upon the vessel. Upon hearing the blast of the whistle, all proceeded hastily forward in obedience to their duties. The mate was on the dock, and proceeded to loosen the end of the gangplank fastened to the dock. As the mate let go the gangplank, before respondent had an opportunity to take his position, and without warning to him, the plank came sliding in on the deck, by reason

Opinion of the Court-MOUNT, J.

[26 Wash.

of being freed by the mate, and caught the respondent, breaking his leg. Upon this state of facts, suit was brought. Upon the trial a jury awarded the respondent damages in the sum of $764.50. From a judgment therefor, this appeal is prosecuted.

The evidence is conflicting upon the point whether the gangplank was loosened by the mate, and came sliding in on the deck without warning to respondent in time to escape it, or whether, after the proper warning and order had been given by the mate, the other three deck hands gave the plank a pull, and thereby caused the same to slide in upon respondent. Since the jury, under the instructions of the court, must have found for the appellant under the latter state of facts, we assume the former to have been established at the trial. Appellant claims (1) that plaintiff's evidence shows contributory negligence on his part; (2) that there was a variance between the proof and the allegations of the complaint with reference to negligence; (3) that the negligence shown is of a fellow servant; and (4) error in the instructions. Plaintiff's allegation of negligence in his complaint is as follows:

"That on said day, and while working in the capacity of deck hand for said defendant upon defendant's said steamer, the 'City of Aberdeen,' then lying at the dock at Olympia, Washington, said first mate gave the order to the deck hands to take in the gangplank; that plaintiff, together with the other deck hands, immediately started to obey said order of said officer; that before said deck hands could get to the sides of said gangplank and lower the same to the deck, as was customary when said order was given, and without warning to the plaintiff, or without any warning whatever, said officer untied the rope which held said gangplank to said dock, whereupon said gangplank with great force and velocity slid across the deck of said steamboat, and struck plaintiff and fractured

Dec. 1901.]

Opinion of the Court-MOUNT, J.

both bones of his right leg between the ankle and knee. That it is the duty of said deck hands on said steamboat to take in the gangplank when ordered by said first mate so to do; and that, when injured as above set out, plaintiff was working in the scope of his employment."

The testimony of the plaintiff himself in support of this allegation is substantially as follows:

"We were lying at the dock, unloading and discharging freight and taking in freight, and we were going to leave. there, and I was busy stowing away some freight, and they blowed a short whistle; that means to take in the plank, let go the lines, etc. I ran out, and there was two or three there ahead of me, and when I came out he [the mate] was just ready to let go of the plank; and I stopped for a moment to see what he is going to do about it, and just as I stopped there for a second, why, he let the plank go. The plank came down right across the deck. When I saw the plank coming, I ran-ran for the stairway--small stairway. There is one on each side of the boat, and I wasn't quick enough to get up the stairway-got up with one foot, the other one he caught and broke him. There was a whistle blown; it was blown up in the pilot house. It was a signal to take in the plank and let go the lines. I know who blew the whistle. It was the captain. He was in the pilot house. When the whistle blew the mate was upon the dock. I was inside the boat, down below on the lower deck. I was probably twenty feet from the plank. It was part of my duty to take in the plank. It was very low tide at the time. It was raining kind of a bad day; the deck was very slippery-wet-everything was wet. The gangplank was still attached to the slip in the dock. I couldn't say what angle it was standing on, but it was so steep that nobody could walk upon it. The gangplank was fastened in the slip by the lanyards tied to cleats in the slip. There was three men besides myself on that steamer. When the whistle is blown it is the duty of the deck hands and stevedore to get around and get the