5. The plaintiff was negligent in attempting to put on the belt without stopping the machinery.

Appeal from superior court, Pierce county; J. A. Williamson, Judge.

Action by Charles A. Hoffman against the American Foundry Company. Judgment for plaintiff. Defendant appeals. Reversed.

Crowley & Grosscup and P. C. Sullivan, for appellant. George W. Fogg, for respondent.

GORDON, J. This action was brought to recover damages for personal injuries sustained by plaintiff while employed as a workman in defendant's foundry. At the time of the injury, respondent was engaged in operating machinery for breaking old iron car wheels. A portion of the machinery, consisting of a shaft, was run by a belt about 30 feet in length, passing over the outside of a pulley. This shaft and pulley ran very rapidly, making about 500 revolutions per minute. It was supported by two iron brackets about 8 feet apart, attached to the wall. Two iron collars and set screws were placed on the shaft, inside the bracket, for the purpose of preventing lateral movement of the shaft. These collars were fastened by means of steel set screws (one on each collar), the heads of which projected five-eighths of an inch. On the 21st of July, 1896, while the machinery was in motion, this belt slipped off the right end of the pulley, and fell between the pulley and the right-hand bracket. The pulley was about 10 feet from the floor. Respondent ascended a ladder, took hold of the belt about a foot below the shaft, and, in attempting to lift it upon the pulley, the belt was caught between the pulley and the bracket on the head of the set screw, and wound about the shaft and the left arm of respondent, throwing him violently to the floor; resulting in the loss of the arm, and in other injuries. The negligence alleged in the complaint may be said to be the use of defective machinery, and the negligent adjustment thereof. The plaintiff had been at work in the same capacity for the defendant about four months, in all, prior to the time of the accident. The answer alleges that the injuries were occasioned solely by the carelessness and contributory negligence of the plaintiff in handling and managing the machinery; that the machinery itself and appliances were exposed and visible to plaintiff, and safe for the purposes intended; that plaintiff had ample opportunity to examine the same, to understand the workings thereof, and undertook the risk in connection therewith, as a part of his employment. The trial resulted in a verdict and judgment for the plaintiff in the sum of $4,000, from which the defendant has appealed.

The gist of the action is negligence, and, to entitle respondent to a recovery, negligence must be shown. Respondent contends that by placing the collar and set screw inside, instead of outside, the bracket supporting the

shaft, and failing to countersink the set screw, the construction was faulty, and the machine rendered highly dangerous. But the injury resulted, not from any defect in the machinery, but from the attempt to replace the belt while the shaft was revolving with great rapidity, and it is not contended that the belt left the pulley because of any defect, either of the pulley or belt. There was evidence tending to show that the method adopted by respondent to replace the belt would have been safe enough, had there been nothing under the belt between the bracket and the end of the pulley but the smooth shaft: but it was rendered extremely dangerous and perilous by reason of the collar and projecting set screw, and the only safe and proper course to pursue in order to replace the belt, under the circumstances, would have been to notify the engineer to stop or slow down the engine. It was not claimed that there was any defect in the machinery itself, but that it was rendered dangerous by reason of the projecting set screw, and in that respect it could have been rendered safer by countersinking the screw, or placing the collar on the outside of the bracket supporting the shaft. It is the duty of the master to furnish to the servant reasonably safe tools, machinery, and appliances with which to work. and it is the servant's duty to exercise due care to avoid injury. These duties are reciprocal, and exist by implication based upon the contract of employment. The implied duty of each is measured by the standard of ordinary care. The law is well settled that the master discharges his duty when he provides machinery that is of ordinary character and reasonably safe. He is not required to provide the newest and best. Employers are not insurers, and the law recognizes that absolute safety is unattainable. They are liable for the results of their negli gence, and not for the dangers necessarily connected with the service. The risks incident to the employment are assumed by the person accepting such employment; and in the absence of statutory provision prescribing the kind or character of machinery to be used, or regulating the manner of its use, an employer who uses machinery which is in common and ordinary use in the line of business in which he is engaged cannot be held liable for an accident which might have been prevented by the use of different machinery. Titus v. Railroad Co. (Pa. Sup.) 20 Atl. 517: Railway Co. v. Husson, 101 Pa. St. 1; Hicks v. Cotton Mills (S. C.) 17 S. E. 509; Wormell V. Railway Co., 79 Me. 397, 10 Atl. 49; Railroad Co. v. Sentmeyer, 92 Pa. St. 276. In Engine Works v. Nuttall (Pa. Sup.) 13 Atl. 65, the court say: "The test is general use. Tried by this test, the saw of the defendant is such a one as the company had a right to use, because it is such as is commonly used by mill owners." In Titus v. Railroad Co., supra (one of the best-considered cases on the subject which we have been able to find),

it is said: "No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average, prudent man. The test of negligence in employers is the same; and, however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way, for which liability shall be imposed." The evidence in this case shows-and the fact is not disputed-that machinery of the character under consideration (referring more particularly to the collars and set screws) is in common use in foundries, and in other like shops. Assuming, then, that the effort of the respondent to replace the belt while the shaft was in rapid motion would have been safe had the set screw not projected, or if the collar had been on the outside of the bracket, and assuming that respondent was in ignorance of their actual condition or location, was he justified in assuming that there was no projecting set screw, or that the collar was outside the bracket? What right had he to assume anything of the kind? If the conditions in these respects were such as commonly exist in other shops and foundries where like machinery is operated, then we think it must be conceded that plaintiff was himself negligent, in attempting to replace the belt under such circumstances. He had no right to assume that the shaft was smooth, and that there was no projecting set screw, or no collar inside the bracket. All machinery is more or less dangerous, and it becomes the duty of persons connected therewith to familiarize and acquaint themselves with the dangers incident thereto. The work in which respondent was engaged did not involve any special risk, of which it became appellant's duty to inform him. The collar and set screw were in plain sight when the machinery was not in action, and it is wellnigh inconceivable that respondent could have worked around the machinery for four months without knowing its actual condition. He had no right to act on the bare supposition that different conditions existed, and that machinery and appliances in common use in the same branch of business elsewhere were not in use where he was employed. In the exercise of ordinary care and prudence, he should either have ascertained the facts, or pursued a course known to be safe. In a case very similar to the present one this court has said: "Men, when they are working around dangerous machinery, must notice. Their faculties and senses are given them for the purpose of self-preservation, and they must exercise them to a reasonable extent. ** * The dangers in this instance were apparent, and the law is well settled that an employé, when he assumes his employment, takes the risk of all apparent danger. This was the doctrine announced by this court in Week v.

Mill Co., 3 Wash. St. 629, 29 Pac. 215, and Jennings v. Motor Co., 7 Wash. 275, 34 Pac. 937, and is the doctrine of common justice and right between employer and employé, and the doctrine of common sense." Olson v. Lumber Co., 9 Wash. 500, 37 Pac. 679. See, also, Beach, Contrib. Neg. 138; Wormell V. Railway Co., supra; Bailey, Mast. Liab. (1st Ed.) p. 169; Nelson v. Sandford Mills (Me.) 36 Atl. 79; Russell v. Tillotson, 140 Mass. 201, 4 N. E. 231.

In this case the slipping of the belt from the pulley was not due to the condition of the set screw, or to the location of the collar upon the shaft, or to any defect in the machinery itself. As already stated, the injury was due to the respondent's effort to replace the belt. There were two methods by which this could have been done, one of which was perfectly safe, and the other beset with peril and danger. The rule is well settled that where there are two methods by which a service may be performed, one perilous, and the other safe, an employé who voluntarily chooses the perilous rather than the safe one cannot recover for an injury thereby sustained. Bailey, Mast. Liab. supra, p. 161, and authorities cited. Upon the entire record, it appears to us that plaintiff has no cause of action in law upon the facts relied upon, that the request of the appellant for a direction of the verdict should have been granted, and that the verdict is contrary to law and to the evidence; and the judgment must be reversed and the cause remanded, with direction to the lower court to dismiss.

SCOTT, C. J., and DUNBAR, ANDERS, and REAVIS, JJ., concur.

(18 Wash. 300) McDONALD et al. v. LEWIS et al. (Supreme Court of Washington. Dec. 16, 1897.) AWARD-SETTING ASIDE.

An arbitration will be set aside where the arbitrators, because of altercation between the parties, refused to allow them to appear and to give evidence, and therefore did not properly inform themselves as to the matters, though it was not charged that the arbitrators acted fraudulently.

Appeal from superior court, King county; William Hickman Moore, Judge.

Action by D. McDonald and others, against Nellie Lewis and another. Judgment for plaintiffs, and defendant Lewis appeals. Affirmed.

Smith & Cole, for appellant. Brinker, Jones & Richards, for respondents.

SCOTT, C. J. The plaintiffs contracted with appellant, Lewis, to erect a three-story stone and brick building for her. The building was completed, and a disagreement arose between the parties with reference to the amounts due for materials and extra work relating to certain changes in the plans and specifications, for delay in completing the

building, and in relation to the manner of payment, etc. Arbitrators were chosen by the parties under the contract for the purpose of settling the matters in dispute. An arbitration was had, but the plaintiffs refused to be bound by their decision, and thereafter filed liens for extra work and material, and brought this action to set aside the award and foreclose the liens. The defendant Lewis has appealed from the judgment in their favor.

It is first contended that the court improperly set aside the decision of the arbitrators. It was not contended by the plaintiffs upon the trial that the arbitrators acted fraudulently. It is claimed that the award was unfair and unjust to the plaintiffs, and was based upon an imperfect and insufficient understanding by the arbitrators of the matters in controversy, and that they did not undertake to inform themselves thereof, but, on the contrary, refused the plaintiffs a hearing. It appears that the arbitrators acted, in deciding the matters in dispute, substantially on the contract, plans, and specifications originally entered into, by comparing what the contract called for with the structure as completed. It also appears that said contract, plans, and specifications were, by agreement of the parties, changed in a number of respects during the progress of the erection of the building, and of these matters the arbitrators had no knowledge in some instances, and but an imperfect knowledge in others. It appears that, upon the morning of the day upon which the arbitration was had, one of the plaintiffs was present with the arbitrators, and also one Lewis, the son of the appellant, who acted as her agent, and that they got into some altercation respecting the matters in controversy; whereupon they were informed by the arbi trators that they could get along better without them, and they were directed to leave, which they did. One of the contentions of the appellant is that the arbitrators were justified in refusing to hear the parties in consequence of their quarreling. But it does not appear that the conduct of the parties was such, or the altercation so serious, that they could not have been heard to state their respective claims. Later in the day, one of the plaintiffs appeared again before the arbitrators, and was not given a hearing or an opportunity to be heard, but was told to go away, and informed that Lewis had been there, and they had sent him away; and the arbitrators concluded their hearing, and rendered their decision. Plaintiffs immediately objected to it, and proceeded as stated.

We are of the opinion that the action of the court in setting aside the award should be sustained. While it is not shown that the arbitrators intended to act unfairly in the matter, it clearly appears that they were not sufficiently informed in the premises, and that the same was not due to any negligence or misconduct upon the part of the plaintiffs.

It appears from the testimony that a different decision would have been reached with respect to a number of items if the arbitrators had been fully informed of the agreed changes; and the award based upon such premises was an unfair one, and, having been promptly objected to by the plaintiffs, should not be allowed to stand.

The appellant contends that, because the plaintiff's delayed nearly the full period of time before commencing their action to foreclose the liens, they should be held estopped from recovering in this action; but as they objected to the award without delay, and at no time acquiesced therein, this contention should not be sustained.

It is further contended by the appellant that the court, after setting aside the award, erred in its findings with respect to a number of items in controversy which were allowed to the plaintiffs. The court allowed some claims, and disallowed others, in favor of the respective parties; and the aggregate of its allowance to the plaintiffs exceeded the amount awarded them by the arbitrators by several hundred dollars. We deem it unnecessary to set forth the items in controversy in detail, and the evidence bearing upon each. We have read the entire evidence, and considered the points argued, and do not think that enough is shown to warrant us in modifying or changing the respective amounts allowed. Affirmed.

DUNBAR, ANDERS, GORDON, and REAVIS, JJ., concur.

(18 Wash. 188)

SHUEY v. ADAIR. (Supreme Court of Washington. Dec. 6, 1897.) NOTES-LIABILITY OF PARTIES-ORAL TESTIMONY.

1. Evidence of an agreement between the maker, the payee, and the indorser of a note, that the payee shall look to the indorser for payment, and not to the maker, is not admissible to exonerate the maker from responsibility, in the absence of fraud, and when the note on its face does not reveal any agency on the part of the maker for the indorser.

2. When a payee sues on a note, he can elect which of the parties liable thereon he will proceed against; and the maker has no right to a delay, that he may make the indorsers parties.

3. An unexecuted agreement, made without consideration, between the maker, the payee, and the indorser of a note, that the payee shall accept the note of the indorser for the original note, is no defense to an action by the payee against the maker on the original note.

4. In an action upon a note, a plea of a want of consideration, which shows upon its face that it depends upon inadmissible testimony sought to be introduced under the same pleadings, falls with the testimony upon which it rests, and hence is demurrable.

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

Action by H. O. Shuey against George B. Adair. Judgment for plaintiff. Defendant appeals. Affirmed.

McCutcheon & Gilliam, for appellant. Clise & King, for respondent.

DUNBAR, J. The appellant executed to the Seattle Savings Bank the following note: "2,000.00. Seattle, Wash., May 6th, 1892. One year after date, without grace, for value received, I promise to pay to the order of the Seattle Savings Bank, at the banking house of said bank, in the city of Seattle, the sum of two thousand dollars, with interest at the rate of ten per cent. per annum, payable seшtannually, from date hereof until paid. And, if suit shall be commenced for the recovery of any amount due upon this note, I agree to pay an attorney's fee of fifty dollars. Geo. B. Adair. P. O. Address, City. No. 230. Due May 6th, 1893." This note was discounted by the bank to Ballard, Rinehart, Holmes & Robertson; and the proceeds thereof, the sum of $2,000, were paid by the bank to the above-named parties. In course of time, after the maturity of the note, the bank sued the appellant, the maker of the note. The essential parts of the amended answer were as follows: "(3) That at the time said note was so discounted as aforesaid, and in consideration thereof, and of the payment of the said proceeds to them, said Ballard, Rinehart, Holmes & Robertson agreed to and with said bank and this defendant that they, the said Ballard, Rinehart, Holmes & Robertson, would within a few days thereafter take up the said note, and pay the amount thereof to said bank. (4) That, at and before the discount of said note as aforesaid, said bank well knew that the same was made and executed by the defendant so as aforesaid for and in behalf of said Ballard, Rinehart, Holmes & Robertson, and not otherwise, and that the proceeds thereof were to be used by, and for the sole. benefit of, the said Ballard, Rinehart, Holmes & Robertson, and that it was discounting the same for, and for the sole benefit of, the said Ballard, Rinehart, Holmes & Robertson, and the said defendant received no part of the consideration thereof. And the said bank then and there agreed to and with defendant and said Ballard, Rinehart, Holmes & Robertson that it, the said bank, would look to the said Ballard, Rinehart, Holmes & Robertson for the payment of said note, and that this defendant should never at any time be held by said bank liable upon or for the note so made by him as aforesaid, nor be called upon to pay the same. And the said bank, pursuant to said agreement, has never asked said defendant to pay said note, or any part thereof, but, on the contrary, has at all times held the said Ballard, Rinehart, Holmes & Robertson liable and responsible to it to pay the same, pursuant to the said agreement so made as aforesaid when said note was discounted by it. (5) That there was no other consideration for the note upon which this action is brought, and no part thereof was received by defendant, or any

other person for him, as is hereinabove stat ed, all of which was well known to said bank at and before it discounted said note. (6) Defendant, further answering, says that since he so made and executed said note he has frequently demanded of said Ballard, Rinehart, Holmes & Robertson that they pay and take up the said note so made by the defendant as aforesaid, and that they frequently promised him they would do so, but have neglected to carry out their said promise and agreement to and with defendant and said bank. (7) Defendant, further answering, says that, about two years after said bank had so discounted said note as aforesaid, it, said bank, entered into an agreement to and with the said Ballard, Rinehart, Holmes & Robertson that it would accept the note of said Ballard, Rinehart, Holmes & Robertson for the amount of, and in place of, the said note so discounted by it for the said Ballard, Rinehart, Holmes & Robertson as aforesaid, and that the said Ballard, Rinehart, Holmes & Robertson thereupon agreed to and with said bank that they would make, execute, and deliver to said bank their note for the said amount, and take up and deliver to defendant said note so discounted for them."

The plaintiff interposed a general demurrer to the said affirmative defense, which demurrer was sustained by the court. Appellant, standing upon his answer, moved the court for an order to bring in the said Ballard, Rinehart, Holmes & Robertson as necessary and proper parties to this action, which motion was overruled by the court; and judgment was entered, as prayed, for plaintiff, and against defendant. From such judgment an appeal is taken to this court. So that it will be seen that this case involves the question whether an agent who executes a promissory note for his principal can introduce parol evidence to exonerate himself from responsibility, for it may be conceded that paragraph 4 of the answer is sufficient to raise this question. It is contended by the appellant that the authorities sustain this rule, while the respondent contends that the case falls squarely within the rule that the terms of a written contract cannot be contradicted by parol evidence. Many cases have been cited by the counsel for appellant, all of which we have carefully examined; and it must be said that upon this important question there is at least an apparent conflict of authority, and the expressions of different courts are somewhat bewildering. But, while there were expressions used by the courts in some of the cases cited by the appellant which would seem to sustain his contention, yet, when the case itself is examined, the decision in most of them will be found to be based upon a state of facts unlike the state of facts disclosed by the answer in this case; and most of them fall within one of the three following principles, which seem to be well established, viz.: (1)

Where the check or order drawn by the agent discloses the principal; (2) where there is enough on the face of the written instrument to render it doubtful whether it was the intention to bind the agent or the principal; and (3) where the instrument was to be delivered upon the taking effect of some future stipulated condition, and it has been delivered before such condition is performed. In each case parol evidence is admissible to show the actual contract; as, for instance, the first case cited by appellant, viz. Brockway v. Allen, 17 Wend. 40, a case which has been cited by many of the subsequent cases, falls within the first rule announced. A note was given by the trustees of the First Baptist Church and Society of the Village of Brockport. This society was indebted to the plaintiff for materials furnished to the society, and on account of such indebtedness the note was executed. The trustees signed the note individually, adding, "Trustees of Baptist Society." In that case it was held by the supreme court of New York that the principal was bound, and not the agent, but the court gives as the reason of its decision that the fact of the agency substantially appeared on the face of the note. In Whitney v. Wyman, 101 U. S. 392, there are some expressions, as we have before indicated, used by the court, which, if applied to the general proposition, would support appellant's contention; as, for instance, that the question is always one of intent, and the court, being untrammeled by any other consideration, is bound to give it effect. It is also said: "The intent developed is alone material, and when that is ascertained it is conclusive. Where the principal is disclosed, and the agent is known to be acting as such, the latter cannot be made personally liable, unless he agreed to be so." The whole case, however, shows that the order for machinery plainly indicated that the same was ordered for the use and benefit of the company, the Prudential Grand Haven Fruit-Basket Company. As in the case above mentioned, the agent's name alone was signed to the order, but to it was added, "Prudential Committee, Grand Haven Fruit-Basket Company." And, while it is true that these words are merely descriptio personarum, yet it brought the case within the rule announced above, that there was sufficient on the face of the order to disclose the principal, or at least to render ambiguous the meaning of the order, so far as the responsibility was concerned. In Hill v. Ely, 9 Am. Dec. 376, the syllabus of the case was as follows: "In an action by, an indorsee against the indorser of a note in blank, parol evidence is admissible to show that at the time of the indorsement the indorsee agreed that he would not have recourse upon it against the indorser, and that the note so indorsed was delivered upon that express condition." The court, in its opinion, says: "The notes of Jabez Lamb were drawn in favor of William Hill, and by him handed to

Elisha Ely, without indorsement. Elisha Ely then said, 'Hill, you must indorse these notes,' to which Hill replied, "That is not our understanding.' Elisha Ely rejoined: "They are made payable to you. How will you convey them to me? You must indorse them, in order that I may collect them.' William Hill then said, 'I indorse them, but remember, I am not to be held responsible for the payment by this indorsement;' and Elisha Ely accepted the notes on that condition." This case was especially decided by the court on the ground of actual fraud, and, as will be readily perceived from the statement given by the court, the transaction was actually fraudulent; and, as a matter of course, the defense of fraud or mistake is always available. The case of Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326, was a case where there was an ambiguity on the face of the instrument, which was a check, and which falls within the second rule supra. The court, after arguing this case, says, "But it is enough for the purposes of the defendant to establish that there existed, on the face of the paper, circumstances from which it might reasonably be inferred that it was either one or the other;" having reference to the question whether it was the check of the party who signed, or whether the check was given for the benefit of the bank. Michels v. Olmstead, 14 Fed. 219, is another case where the want of the happening of some future condition provided for was pleaded in exoneration of the agent. In this case the agreement stipulated for machinery to be furnished by the plaintiff to the defendant at specified prices, and the defense was that it was the understanding at the time the contract was nade that the defendant, who had signed the contract, was not to be held liable personally in the event that the corporation for which the machinery was ordered was not formed; but the court recognized and stated the principle that "the contract read in evidence must be taken to set out the whole of the agreements of the parties, and no change of it can be made by verbal testimony unless the instrument itself shows on its face that certain matters pertaining to it are left undetermined; and, when this is the case, testimony may be admitted to complete the contract, so to speak." But that is an entirely different proposition from the one at bar, where the conditions of the contract are absolutely and plainly disputed, and one defendant is sought to be substituted for another without any future conditions agreed upon not having been complied with, and without any indication or ambiguity on the face of the note as to who the actual payor was. The next case cited (Dix v. Akers, 30 Ind. 431), we think, has no bearing on the subject in controversy; and the same might be said of Rawlings v. Fuller, 31 Ind. 255. It simply decides that "one who contracts merely as the agent of another, and has no