
    [No. 6113.
    Decided September 7, 1906.]
    William H. Doyle et al., Respondents, v. Great Northern Railway Company et al., Appellants.
      
    
    Appeal — Orders Appealable — Grant op New Trial. An order granting a new trial is appealable under Bal. Code, § 6500, subd. 6, whether based on questions of law or fact.
    New Trial — Questions Presented., Where a new trial is granted for error of the court in granting a nonsuit for insufficiency of the evidence, the same presents only a question of fact.
    Master and Servant — Injury to Servant— Assumption op Risks —Railroads—Gas in Tunnel. A locomotive fireman on a passenger train who was overcome with gas in a tunnel nearly three miles in length, does not assume the risk of a defect in the coupler of a helper engine, which became parted in the tunnel three times, nor the risk of inferior coal used on the helper engine, where it appears that the engine had become uncoupled several times on curves while approaching the tunnel, hut it was not the duty of the fireman to Inspect the coupling and he was not allowed to do so, but was informed by tbe engineer that it would not become uncoupled on a straight track, the tunnel being straight, and where it appears that superior coal was usually used and the fireman did not know that inferior coal would be used until he saw it put on shortly before reaching the tunnel, and no danger would have resulted from the use of such coal if the train had not become uncoupled in the tunnel; since he was given no reasonable opportunity to obviate the defects, and the danger in continuance in the performance of his duties was not so imminent as to show want of ordinary prudence in so doing.
    Same — Defective Appliances — Notice to the Master. In such a case, knowledge of the conductors and engineers as.to the defect in the coupling, with opportunity to report the same, must be imputed to the defendant, in the absence of a showing that they did not report the defect.
    Same — Contributory Negligence. Under the above facts, it cannot be said as a matter of law that the conduct of the plaintiff and his co-employees showed a reckless disregard of their own safety or the safety of the passengers on the train; and especially not after the first break in the tunnel when the safety of the passengers re-' quired the employees to remain at their posts.
    Same. Where, under such facts, the servant did not assume the risk as a matter of law, the question of his contributory negligence is necessarily decided.
    Appeal from an order iof tbe superior court for Obelan county, Steiner, J., entered November 15, 1905, in favor of tbe plaintiffs, granting a new trial, after sustaining a motion for nonsuit., in an action for personal injuries sustained by a locomotive fireman by reason of gas in a tunnel.
    Affirmed.
    
      L. C. Gilman, for appellants.
    
      Robertson, Miller & Rosenhaup\t and Reeves & Reeves, for respondents.
    
      
       Reported in 86 Pac. 861.
    
   Mount, C. ¿J.

This appeal is from an order of tbe lower court granting a new trial. Tbe case was brought to recover for personal injuries. It was tried by tbe court and a jury. Wben tbe plaintiffs rested tbeir case', tbe trial court granted a nonsuit upon motion of tbe defendants, on tbe ground that the evidence showed that tbe plaintiff, William H. Doyle, bad assumed tbe risk and was guilty of contributory negligence. Thereupon the plaintiffs moved for a new trial. After argumient on this motion, the trial court concluded that it had erred in granting defendants’ motion for a nonsuit, and thereupon granted plaintiffs’ motion for a new trial. The defendants have appealed.

Respondents move to dismiss the appeal upon the ground that the order granting a new trial in this case is not an appealable order. The statute, at subdivision 6 of § 6500, Bal. Code, expressly provides for an appeal from an order which' grants a new trial. Respondents argue that, because the trial court based its ruling upon a consideration of all the evidence and reversed its ruling by correcting its own error, the order is not appealable. The statute makes no distinction between questions of fact and law. An order granting a new trial is appealable if it is based upon either fact or law. It is true this court will not reverse a causa upon questions of fact where the trial court acts within its discretion and without abuse of that discretion, hut we will consider the merits of an appeal upon the questions decided by the trial court in granting a new trial whether such questions are of law or of fact. The questions presented here, however, are questions of law entirely, because the facts were necessarily conceded to he as stated by the plaintiffs for the purpose of raising the questions of law presented. There is no merit ini the motion to dismiss, and it is therefore denied.

The facts shown by the plaintiffs are substantially as follows: On the 5th day of February, 1903, the plaintiff, William H. Doyle, was in the employ of the Great Northern Railway Company as a locomotive fireman. He was an experienced man and had been in the employ of the railway company for two or three years, and had been over the road a great many times. His run was between Seattle and Leavenworth. On the date named he was fireman on the engine which hauled the regular passenger train east from Seattle. This train left Seattle at eight o’clock p. m. on time, and arrived at Skykomish at about 10:30 pi. m. At tbis point about four tons of Gilman coal were taken on the engine which plaintiff was firing. This coal was of very po'or quality. It emitted large quantities of smoke and gas. Crow’s Hest coal was a better quality and was, usually taken on at this point. This last named coal emitted but little smoke or gas. Plaintiff saw the Gilman coal taken on his engine and knew its effects. Prom Skykomish to the east portal of the Cascade tunnel, a distance of about twenty-six miles, the grade was quite steep, necessitating another engine to, help draw the train between these points. An extra freight engine supplied with Gilman coal was attached to the train at Skykomish. After the train left Skykomish and had proceeded about six miles toward the Cascade tunnel, the coupling parted between the two engines while they were on a sharp curve. The train crew reooupled the head engine to the engine which plaintiff was firing. Plaintiff did not leave his engine or see the cause of the delay, but he knew for the first time that the coupling on the head engine was defective, After proceeding about eight miles further, the head engine again, on a curve, became uncoupled. It was again recoupled, and again proceeded. Plaintiff made no examination of the coupling, but was informed by the engineer of his, engine that the coupling wiould work all right on a straight track. The train proceeded to the tunnel, which was about two and three-fourths miles in length. After entering the tunnel about half a mile, the head engine again parted on a straight track. It was recoupled and proceeded about a mile further, and again parted. This occurred a third time in the tunnel. At this last time all the train crew, including the plaintiff, became unconscious from inhaling the smoke and gas emitted from the engines. When plaintiff became unconscious^ he fell with his left foot against the boiler of his engine, severely burning his foot and ankle.

Plaintiff had nothing to do with the couplings at any time. He had no control over the train or its, movements. He knew that the ampler on the head engine was out of order, hut he did not know its condition. He knew the character of coal which was being used, and knew that the passenger train passed rapidly through the tunnel, and that there was little or no danger from the coal if the train ran all right. The only testimony showing knowledge of the railway company of the defect in. the couplers, was that the couplers did separate at the times named; that the engineers and conductor were informed thereof, and that couplers in good condition would not so separate; and that a careful inspection would hare discovered the defective condition a.t Skykomish. Upon these facts the appellants argue that this case comes within the rule frequently stated by this court that, while the obligation rests upon the master to furnish his employee with a reasonably safe place in which to work, and reasonably safe ■ appliances to work with, yet where the employee is in as good a position as the master to< ascertain and understand the danger and does equally well know and appreciate the dangers, he cannot he heard -to complain of injuries sustained through defects of which he had such knowledge or means of knowledge, and cite the following cases in support of this position: Miller v. Moran Bros. Co., 39 Wash. 631, 81 Pac. 1089; Tham v. Steeb Shipping Co., 39 Wash. 271, 81 Pac. 711; Anderson v. Inland Tel. etc. Co., 19 Wash. 575, 53 Pac. 657, 41 L. R. A. 410; Hoffman v. American Foundry Co., 18 Wash. 287, 51 Pac. 385; Bullivant v. Spokane, 14 Wash. 577, 45 Pac. 42; Olson v. McMurray Cedar Lum. Co., 9 Wash. 500, 37 Pac. 679; Jennings v. Tacoma R. etc. Co., 7 Wash. 275, 34 Pac. 937; Krickeberg v. St. Paul etc. Lum. Co., 37 Wash. 63, 79 Pac. 492; Danuser v. Seller & Co., 24 Wash. 565, 64 Pac. 783; Bier v. Hosford, 35 Wash. 544, 77 Pac. 867; McDannald v. Washington etc. R. Co., 31 Wash. 585, 72 Pac. 481; Woods v. Northern Pac. R. Co., 36 Wash. 658, 79 Pac. 309.

We do not think the facts of this case bring it within the rule above stated, and certainly the facts in none of the eases cited above are parallel with the facts in this case. The plaintiff here was a fireman on the regular engine, drawing a loaded passenger train. He had no control over the train or its mlovements. The coal which was usually used iu the engines passing through the tunnel was a superior grade of coal,' making little smoke and gas. Plaintiff entered npon his duties at Seattle and worked some two and one-half hours until they arrived at Skykomish, where a helper engine was required. Until he got toi that place he did not know what kind of coal was to he used nor what engine was to help them through the tunnel. When he arrived at Skykomish he saw that an inferior grade of coal was being used for that purpose. He knew the character of coal, hut he did not know the condition of the engine which] was to help them. He was not required to inspect the engine or its condition, nor permitted to do so. After his train had gone on its way from Skykomish between stations, he then learned for the first time that the coupler on the helper engine was defective^ but was then told by his engineer that it would not uncouple on a straight track. The train entered the tunnel and there, for the first time^ parted ion a straight track. Plaintiff was then probably aware that some danger confronted the train crew as well as the passengers, because of the defective couplers and the character of the coal the engines were consuming. These facts bring this ease within the rule laid down by 1 Shearman & Eedfield on Negligence (5th ed.), § 211, as follows:

“The true rule, as nearly as it can be stated, is that a servant can recover for an injury suffered from defects due to the master’s fault, of which he had notice, if, under all the circumstances, a servant >of ordinary prudence^ acting with such prudence, would, under similar conditions, have continued the same work under the same risk; hut not otherwise. All the circumstances must he taken into account, and not merely the isolated fact of risk. Thus, to take a strong case, an engineer, who- should discover, for the first time, while midway between two stations, that his engine was dangerously defective, would unquestionably be justified iu continuing to run it to the next station. To take a weaker case-, he would still he justified in running it beyond that station, if no other engine could be obtained there, unless the danger of explosion were imminent. But can we stopi there? Wiould not an engineer, having a train full of passengers, hound fo-r a station, 100 miles distant, he entitled and indeed almost hound to take the train through with an, engine which, though defective, is probably manageable with unusual care, and which is the only engine obtainable by which the train can he taken through on schedule time ? Is there any doubt that the most prudent engineer would do so- ? But what is true of the engineer, under s-uch circumstances, is equally true of all classes of servants.under other circumstances, similar in principle. If every man should cease from work upon the instant of discovering that his safety was imperiled by the negligence of some other person, the business world would come to a stand. If every servant on a railroad or in a factory should refuse to work by the side of a negligent fellow-servant or with defective materials, immediately upon becoming aware of the fact, such enterprises could never he carried on. Obviously, reasonable- time must be given for removal of the defect; and meantime, the business- must he carried on with no prejudice to- the servant’s rights, unless the risk is so great that noi one, acting with ordinary prudence, w’onld go on nnder the circumstances.”

To the same effect, see, 1 Lahatt, Master & Servant, § 30%a.

Appellants criticize this rule, hut we think it is proper to be applied to- the facts- in this- case. Appellants also- contend that, if the rule quoted is correct, it does no-t apply here, bet-cause it was not shown that there was no- opportunity to notify the plroper agent of the company of the defects; that stations were passed after discovery of the defects, and that the evidence- shows a reckless disregard on the part- of the plaintiff and his co-employees, both for their own safety and the safety of the passengers- on, the train. Concerning the contention that no notice to the proper agents of the company was shown when there was opportunity therefor, it is sufficient to say that the engineers and conductor on the train had notice of the defects^ and that it was not necessary for the fireman who was under their control to report to' any other agent of the company. When it was shown that the conductor and engineers had notice of the defects and opportunity to report, in the absence of a contrary showing, it will he presumed that they did so.

ISTor do we think the evidence is sufficient as a matter of law to show that the plaintiff and his co-employees displayed a reckless disregard of their own safety, or the safety of the passengers upon the train. If wei may assume that the plaintiff was equally responsible with the conductor and engineers on the train, and that it was within his power to prevent the train from entering the tunnel, we are still disposed to think it was a question for the jury to determine from all the circumstances surrounding the train crew at the time, whether a due regard for the safety of the train and its passengers permitted the train to pass into the tunnel. The engines had parted twice on curves within a distance of twenty-three miles. The distance through the tunnel was two and three-fourths miles. The track was straight. The engines had not parted on a straight track. It would not appear, therefore, to be certain that the enginesi would part in the tunnel, and even if they parted once therein, danger would not appear to be imminent. Upon these facts it would be a harsh rule to say that the employees were bound to' know that they were running the risk of almost certain danger. • After the train had entered the tunnel and the engines had again parted, danger was to be suspected 'on account of smoke and gas, if there was long delay or more trouble of that kind. But if the conductor and engineers in charge thought it prudent and desired to proceed on their journey, the danger not appearing imminent to them, it is certain that the plaintiff was not, and would not have been justified in abandoning bis post at anytime after entering tbe tunnel. The safety of tbe passengers then required tbe plaintiff and every employee to remain at bis post of duty, and rescue the train from tbei danger which' would follow if it were not taken out of tbei tunnel. An abandonment of tbe train at that time by one or more of tbe employees meant imminent pleril to tbe passengers oni tbe ■train. Whether the train should go. forward or backward depended upon tbe judgment of tbe person in charge, for wbicb this plaintiff was accountable.

We are informed by appellants’ brief that tbe train was rescued by au employee whoi was traveling as a passenger. Under the facts shown, we think the plaintiff did not assume the risk as a matter of law. If we understand tbe contention of tbe appellants correctly, it is that respondent was guilty of contributory negligence solely by reason of thei fact that be knew the conditions and remained at work. We find nothing ini the evidence to indicate that respondent was guilty of any other negligence wbicb contributed to. tbe injury be received in the tunnel. Having determined that respondent did not assume tbe risk as a matter of law, tbe question of contributory negligence based thereon is necessarily decided.

We are of opinion, therefore, that the evidence was sufficdemt to take the case to tbe jury upon tbei question of assumed risk and contributory negligence, and that tbe court did not commit error in granting a new trial.

Tbe order appealed from is therefore affirmed.

Crow, Dunbar, Fullerton, Hadley, Budkin, and Boot, JJ., concur.  