
    (No. 5463.
    Decided July 21, 1905.)
    Charles Tham, Respondent, v. The J. T. Steeb Shipping Company, Appellant.
      
    
    Master and Servant—Negligence—Open and Obvious Dangers— Assumption or Risks. Where the dangers incident to the employment are alike open and obvious to the master and servant, the parties are upon an equality, and the master is not liable for an injury to the servant resulting therefrom.
    
      Appeal—Review—Error Favorable to Appellant—Trial—Instructions. The giving of an erroneous instruction, favorable to the appellant, is not prejudicial error although it conflicts with other correct instructions.
    Appeal—Review—New Trial—Errors of Law. The granting of a new trial solely for supposed error in an instruction, will be reversed on appeal for error of law' where the instruction was correct, no judicial discretion being involved.
    Appeal from an order of the superior court for Pierce county, Snell, J., entered August 29, 1904, granting a new trial, for error of law, upon motion of the plaintiff, after a trial and verdict in favor of the defendant, in an action for personal injuries.
    Reversed.
    
      James M. Ashton and W. H. Hayden, for appellant.
    
      W. H. Harris, for respondent.
    
      
       Reported in 81 Pac. 711.
    
   Root, J.

Respondent, while working for appellant upon a scow by the side of the ship “Robert Adamson,” was knocked from said scow by a sling-load of lumber, swung from the rail of said ship. In falling, he struck upon the railing of a naphtha launch, lying alongside the scow, and suffered a broken leg. He brought suit for damages. At the trial, a verdict was returned in favor of the defendant.

A motion for a new trial was duly made, and was granted by the trial court, solely upon the ground that two of its instructions were inconsistent with, and contradictory to, each-other, and that one of them, number 18, hereinafter referred to, was not the law. Appeal is taken from this order. Said instruction number 18 was in the following language:

“If you find from the evidence that the danger was alike open and obvious to the plaintiff and to the defendant, both the plaintiff and the defendant are upon an equality, and the master is not liable for an injury resulting from the dangers incident to the employment.”

The other instruction, is number 27, and is as follows:

“Under the law of this state, the master and servant do not stand upon an equal footing, even when they have equal knowledge of the danger. The position of the servant is one of subordination and obedience to the master. The servant has the right to rely upon the superior knowledge and skill of the master. The servant is not entirely free to act upon his own suspicion of danger. If, therefore, the master orders the servant into a place of danger and the servant is injured he, the servant, is not guilty of contributory negligence, unless the danger was so glaring that a reasonably prudent person would not have entered into it.”

We are unable to agree' with the learned trial judge that instruction number 18 is not the law. This instruction is taken, in substance, from the opinion of this court in Anderson v. Inland Tel. etc. Co., 19 Wash. 575, 53 Pac. 657, 41 L. R. A. 410. The law as set forth in the instruction is recognized in that case, and in the following cases from this court: Hoffman v. American Foundry Co., 18 Wash. 287, 51 Pac. 385; Jennings v. Tacoma R. & Motor Co., 7 Wash. 275, 34 Pac. 937; Brown v. Tabor Mill Co., 22 Wash. 317, 60 Pac. 1126.

We do not think that this instruction is necessarily in conflict with instruction number 27. The idea sought to be conveyed by the latter is correct to the effect that the master and servant do not always stand upon an equality. The language in 27 is not apt, and some of the statements, taken alone, are not correct as propositions of law; but the substance, taken as a whole, would be proper in an appropriate case—as, for instance', where there is little appearance of danger, but where the master, by superior knowledge, is aware of dangerous conditions not recognized by th£ servant. Eespondent excepted to the giving of instruction number 18. He did not except to the giving of instruction number 27, and had no occasion to do so, as it was favorable to him. Number 18 being a correct statement of tbe law, it follows that respondent had no just complaint because of its being given; and be could not be prejudiced, even if 27 did conflict, for tbe reason that whatever effect 27 would bave, as against 18', would be in bis favor. If tbe trial court’s views of 18 were correct, tbe motion for a new trial would bave been properly granted; but as, in our opinion, tbe statement of law in 18 is correct, the action of said court in granting said motion was erroneous.

Ordinarily tbis court is very reluctant to set aside tbe action of tbe trial court in granting a new trial. In tbis case, it was suggested in respondent’s brief that tbe trial court believed tbe evidence insufficient to sustain tbe verdict, and would bave granted tbe new trial upon -that ground, bad it believed it bad tbe power to thus review tbe action of tbe jury. Had tbe learned judge granted tbe motion upon tbis ground, or upon any ground involving sound judicial discretion, bis action would not likely bave been disturbed. But tbe record fails to show sucb facts. On tbe contrary, it shows that tbe trial judge stated expressly that tbe evidence and facts were sucb that reasonable men might properly reach different conclusions thereupon, and be based bis decision solely upon the conflict and inconsistency which be believed to exist bet-tween said instructions 18 and 27. Hence, a clear question of law is presented, upon which we are unable to reach tbe same conclusion as that arrived at by said court.

Tbe judgment of the honorable superior court will therefore be reversed, with instructions to enter judgment upon tbe verdict.

Mount, O. J., Crow, Hadlet, Fullerton, and Rudkin, JJ., concur.  