Department 1. Appeal from Superior Court, | posed would be $3,000, whilst the testimony King County; Everett Smith, Judge, Action by P. K. Smith against A. K. Adelberg. Judgment for plaintiff, and defendant appeals. Affirmed. Chas. D. Fullen and Jas. G. Raley, both of Seattle, for appellant. H. R. Clise and C. K. Poe, both of Seattle, for respondent. shows that it would have been about $30,000. It further appears from the testimony that the appellant represented to the respondent that the 3,000 shares subscribed by Kerry at the instance of the respondent would complete the stock subscription, and that Kerry was ready, able, and willing to pay his subscription, if the appellant's repre The re GOSE, J. This appeal involves two ques-sentations had been found true. tions: (1) Are the findings of fact supported spondent had no employment other than to by the evidence? and (2) does the evidence secure a subscription of 3,000 shares. There justify the judgment, as a matter of law? was no arrangement whereby he was to be The material facts found are that the appel- a party to the organization of the corporalant employed the respondent to secure sub- tion. The duty of organizing the corporation scribers to a syndicate then in process of and issuing the 100 shares of its stock to the organization, for the purpose of purchasing respondent, or paying him its equivalent in about 13,000 acres of land situated in the money, was devolved by the transaction upstate of Montana, at the price of $9.50 per on the appellant alone. The enterprise failshare; that he agreed to give the respond-ed of consummation because he did not have ent 100 shares in the syndicate, or its equiva-the bona fide subscribers which he reprelent in money, if he would secure a subscrib- sented to have, and because of his misrepreer for 3,000 shares; that he represented to sentations as to the commission he would the respondent that he had bona fide sub- make out of the enterprise, and as to the The respondent did all scribers for all of the remaining shares; that value of the land. he had an option to purchase the land at that he was required to do when he had pro$9.50 per acre; that the land was reason- cured the subscription. The enterprise failably worth $14 or $15 per acre; that, rely-ed, not because of anything the respondent ing on these representations, the respondent failed to do, but solely in consequence of introduced the appellant to one Kerry, whom the misrepresentations of the appellant. they jointly induced to subscribe for the 3,000 shares; that Kerry was at all times ready, willing, and able to pay for such shares; that, as an inducement to Kerry to subscribe, the appellant misrepresented the facts to the respondent and to Kerry in this: That he did not have bona fide subscribers for the balance of the shares, and in the further particular that he had an option on the land at $6.50 per acre, and intended to wrongfully make a secret profit upon the purchase of the land, which fact was unknown to the respondent and Kerry; that by reason of the fact that the appellant did not have bona fide subscribers for the remainder of such shares, and because of the other misrepresentations set forth, the enterprise failed of consummation; that, had the appellant's representations been true, the syndicate would have been organized, and Kerry would have paid for the shares which he subscribed; and that the reasonable value of 100 shares is $950. The conclusion of law deduced was that the respondent was entitled to a judgment against the appellant for $950, together with his costs, and a judgment was entered accordingly. These findings are abundantly supported by the evidence. The plan proposed was that each share of stock should represent one acre of land. The testimony shows that the appellant was to give the respondent 100 shares of stock in a corporation to be organized by the former, or to give him its equivalent in money. The appellant represented that his commission on the basis pro The appellant relies upon the recent case of Watson v. Bayliss, 128 Pac. 1061. The In that two cases have nothing in common. case it was alleged that the plaintiff and the defendant agreed to organize a corporation for the purpose of carrying out a certain business enterprise; and we held that, under the allegations of the complaint and the proof submitted in support thereof, there was no meeting of minds upon the substantial features of the corporation. The judgment is affirmed. CROW, O. J., and MOUNT and PARKER, JJ., concur. 1. (72 Wash. 268) GENNAUX v. NORTHWESTERN IM- ACTION LIGENCE. On evidence in a miner's action for personal injuries from rocks alleged to have fallen from the roof of an adjoining chute as a result of the negligent condition in which it was left, held, that the question of negligence was for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1010-1050; Dec. Dig. § 286.*] 2. MASTER AND SERVANT (§ 125*) SAFE PLACE FOR WORK-KNOWLEDGE OF MASTER For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes tling of a roof had set in was notice to the [ 10. MASTER AND SERVANT (311*)-LIABILIcompany. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 243-251; Dec. Dig. 125.*] 3. MASTER AND SERVANT (§ 124*) SAFE PLACE FOR WORK-DUTY OF INSPECTION. Where a miner was expected to work right up to the line of a certain chute which he was not supposed to enter or inspect, it was the company's continuing duty to inspect and to keep that adjacent space in a safe condition for work, so long as its unsafe condition would endanger men in adjacent workings. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 235-242; Dec. Dig. 8 124.*] 4. MASTER AND SERVANT ( 150*)-MASTER's LIABILITY-WARNING-FAILING TO INSPECT AND KEEP SAFE SPACES IN A MINE. It was the company's continuing duty to warn men in mine workings of the danger from an adjacent chute, that they might take steps to protect themselves. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 297, 299–302, 305-307; Dec. Dig. 150.*] 5. MASTER AND SERVANT (§ 211*)-ASSUMPTION OF RISK-PLACE NOT UNDER SERVANT'S CONTROL. Plaintiff, a minor, did not assume the risk of dangers in his place of work resulting from the condition of adjacent workings not under his control, nor subject to his inspection. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 557; Dec. Dig. § 211.*] TY OF SERVANT-FELLOW SERVANT. Where the general superintendent of a mine was not shown to have a duty of personal inspection of the underground workings or to have had actual knowledge, or knowledge on information, as to its unsafe condition, he was not liable to a minor injured thereby. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1236; Dec. Dig. § 311.*] 11. DAMAGES (§ 132*)—EXCESSIVE DAMAGES -PERSONAL INJURIES. A verdict of $18,000 to plaintiff, a strong, well man of 29 years of age, capable of earning $4 a day as a coal miner, for injuries rendering him a cripple for life, with his left leg atrophied, and almost completely paralyzed with little control of his urinary organs, and suffering constant pain, with little hope of recovery, and able to earn practically nothing, was not excessive. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*] Department 2. Appeal from Superior Court, King County; Wilson R. Gay, Judge. Action by Edmond Gennaux against the Vanderveer & Cummings, of Seattle, for re- 6. MASTER AND SERVANT (8 217*)-ASSUMP-spondent. TION OF RISK-DANGEROUS PLACE-MINES. The rule that, where during the work conditions are constantly changing, a servant, knowing of such change, accepts the risks ordinarily incident thereto, has no application to a settling of the roof in an adjoining chute, of which plaintiff at work in an adjacent space had no knowledge. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec.Dig. § 217.*] 7. MASTER AND SERVANT (§ 289*)-CONTRIBU. TORY NEGLIGENCE-PLACES FOR WORK. Where there was no evidence except the falling of a roof that the injury therefrom to plaintiff was caused by the insecure placing of the props thereto, and the cause of its fall was a question for the jury, contributory negligence as a matter of law was not established. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*] 8. MASTER AND SERVANT (§ 311*)-LIABILITY OF SERVANT-FELLOW SERVANTS. A mine foreman having the direct supervision of the mine, who knew of the dangerous condition of a chute, took no steps to remedy it, and failed to warn plaintiff, working in an adjacent space, of its existence, was guilty of personal negligence. ACTION [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1236; Dec. Dig. § 311.*] 9. MASTER AND SERVANT (§ 254*) · FOR INJURIES-PARTIES. The negligence of a mine foreman was the negligence of the mining company, and he and the company were liable as joint tort-feasors who might be joined as defendants in the same action. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 808; Dec. Dig. § 254.*] ELLIS, J. This is an appeal from a judgment entered upon a verdict against the appellants jointly in favor of respondent for $18,000 damages for personal injuries sustained by the respondent while employed by the appellant Northwestern Improvement Company as a miner in one of its coal mines at Ravensdale, Wash. The appellants Lawrence and Edwards were, respectively, mine foreman and general mine superintendent. The careful and dispassionate manner in which the case was tried by counsel on both sides renders an inherently complicated situation comparatively easy of statement. In the mine in question the coal lies in a vein about six feet thick, tilted in an upward pitch of about 30 degrees. The mine is entered by a slope sunk on the vein from which, at the various levels, counters and gangways are run at right angles. From these counters and gangways chutes about 10 feet wide are drifted upward, dividing the vein at in tervals of 30 to 50 feet. These chutes are connected at intervals of about 50 feet by passages for ventilation called cross-cuts. The miners worked in pairs, each pair digging a chute and the adjacent half of the cross-cuts to the chutes on either side. The coal in the vein is thus blocked into irregular segments called pillars, extending from the gangway upward to the end of the vein or working. These pillars contain about 75 per cent. of the coal in the vein, and the work so far is largely preliminary to the testified that in entering the mine the men | dangers found on such inspection. He also mining of the coal so blocked. Sheet iron troughs or chutes are laid in the chute to expedite the running of the coal down the incline to the gangway where it is taken from the mine in cars. In mining the pillars the work progresses from the upper end of the chutes toward the gangway. Beginning on the right-hand side of the chute which they would pass him, and he customarily warned them personally of any dangers found from caving or bad roofs. The following is a reduced reproduction of a plat in evidence, showing the relative location of chutes, cross-cuts, and pillars in that portion of the mine where the accident occurred. have driven the miners take successive slices Chute 27 was driven by the respondent off the upper corner of the last pillar but and his partner, as were also the cross-cuts one, so that the coal in the pillar above will on either side one-half the distance to the have better access to the chute. When the next chute. The adjacent chutes and other top pillar has been mined, the miners drop half of the cross-cuts were driven by other down to the third pillar from the top, again pairs of miners working independently of retake off the upper corner to facilitate the spondent and his partner. The men in chute mining of the second pillar, repeating this 26 had mined the coal from the eighth or upprocess till the gangway is reached, when permost pillar to the right of that chute, and that section of the vein is completed. As were then working a short distance below. the work progresses both in chutes and pil- The respondent and his working mate had lars, props are set as may be necessary to sliced off diagonally a large part of the sevsustain the roof, the company furnishing the enth pillar at the right of chute 27, and had timbers and the miners setting them. By the mined nearly all of the eighth pillar, leaving system pursued in this mine, each pair of a stump of coal on the margin of chute 26 miners was held responsible for the safety of and above cross-cut 8, about four or five feet the immediate place of work to the extent of thick at the lower end, gradually widening to looking to the condition of their own roof, ten or twelve feet in thickness at the upper timbering, and supporting it. These miners, end. Immediately above cross-cut 8 they however, had nothing to do with the adja- had removed the coal from this stump cent workings; the evidence clearly show-through to chute 26 to a distance of about ing that they were not even allowed to enter and inspect them without special direction from the management, except possibly in removing from the pillar the last slice of coal next the adjacent chute. This coal, however, was always removed from the other side. All of the work was done under the supervision of the mine foreman. There was also a fire boss, whose duty it was to go through the mine every morning before work commenced and inspect for gas, bad roof, and other dangers to the men. It was his duty to post on a bulletin board at the entrance to the mine, so that the miners might see it as they entered, notice of any 130 P.-32 four feet above the cross-cut. The shaded portion of the plat indicates the unmined coal in the seventh and eighth pillars. At the time of the accident the respondent's partner was setting a drill post at a point on the left side of the stump of coal, about ten feet up from the lower end, at the place indicated by a single dot. The respondent was between two posts or props at the foot of the stump, as indicated by the other two dots. He was facing the coal in a bent posture, clearing the floor to place sheet iron upon which to run the coal to chute 27. He testified that while so engaged he heard a sound as of something falling to his right. "clap of a hand," and that of his partner that it happened in the "flash of an eye." They did assent to questions so worded on and apparently in chute 26 above the crosscut, and immediately thereafter was knocked senseless. His partner testified that he heard a sound as of something falling in cross-examination, but this was manifest hychute 26 on the opposite side of the stump perbole. The men were foreigners, expressof coal from where he was working, causing ing themselves with some difficulty, and a jar so violent as to shake the body of coal from their whole testimony it is plain they and cause pieces to fall therefrom on his merely meant that the catastrophe covered side; that he at once went to the respond- but a short interval of time. The respondent ent, and found him almost covered by rocks testified that he heard the noise in chute 26, and débris, with a large rock on his legs, and thought the rock came from there. This, which he rolled off; that one of the props together with the undisputed fact that upon was down, and there was a hole in the roof and near the respondent's place of work imimmediately above respondent, about a foot mediately after the accident were some four or eighteen inches deep, and three, four, or tons of rocks which no one testified were possibly five feet square, from which some of there before, and his partner's testimony the roof had fallen; that while he was ex- that there was a sound and jar as of a fall tricating the respondent some rocks rolled in chute 26 sufficient to shake the stump of down from above in chute 26 and onto re- coal from 6 to 10 feet thick, was certainly spondent's place of work. After the acci- persuasive evidence that rocks coming from dent there were about two car loads, or over a fall in 26 rolled upon the respondent's four tons, of rocks and débris lying in chute place of work, knocked out the prop, and 26 opposite the eighth cross-cut and extend-caused whatever fall there was from his ing over into the cross-cut and onto respond-own roof. The evidence is conclusive that ent's place of work. There was no evidence rocks had before been falling in the upper end of a fall of roof in chute 26 over this pile. of 26, that a "squeeze" or settling of the roof The undisputed evidence shows that all of there had already set in, and that the fire this rock could not have come from the re- boss and Lawrence, the mine foreman, knew spondent's own roof, as the hole there was of this condition. Their knowledge was nonot large enough to have furnished it. The tice to the company. It is urged that where prop which was down had stood within less the rocks causing the injury came from was than three feet of the line of chute 26, and a matter of mere conjecture. It was no it is respondent's contention that it was more conjectural than any other fact deknocked down by stones rolling from a fall pending upon circumstantial evidence. They of roof a short distance up 26 down the in- could have come but from one of two places, cline, and deflected by posts or other rocks either from chute 26 or from respondent's into the respondent's workings. The mine was own roof; and the positive evidence as to in absolute darkness but for the oil lamps the sound of a fall in 26 immediately prior worn upon the miners' caps, which, the evi- to the accident and of large masses of rock dence shows, threw a light but for a dis- upon and near respondent's place which tance of six or seven feet. could only have come from 26, and that other rocks rolled down from 26 onto respondent's place of work while his partner was removing him, was evidence which, considering the admitted bad condition of chute 26 above cross-cut 8, was sufficient to take the case to the jury upon this question. [1, 2] The negligence charged in the complaint is that rocks fell from the roof of chute 26 above cross-cut 8 as a result of the careless and negligent condition in which it was left, and rolled with the pitch across the respondent's workings, injuring him; that the place was under the supervision and control of the appellants Lawrence and Edwards, who knew of the danger, but failed to warn the respondent of it. The answer denied the allegation of negligence, and set up, as affirmative defenses, assumption of risk, contributory negligence, and negligence of fellow servants. At appropriate stages of the trial motions were made for nonsuit as to each of the defendants for judgment notwithstanding the verdict as to each defendant, and for a new trial as to each. The overruling of these motions are assigned as errors. It is first contended that there was no proof of negligence. It is, of course, conceded that the respondent was injured by a fall of rock; but the appellants contend that there was no evidence that it came from chute 26. Stress is laid upon the respond [3] It was admitted that respondent and his partner were expected to work right up to the line of chute 26, which chute they were not supposed to enter or inspect. It was therefore the appellant's duty to inspect and keep that adjacent space in such condition as not to cause injury to these men. McKenzie v. North Coast Colliery Co., 55 Wash. 495, 104 Pac. 801, 28 L. R. A. (N. S.) 1244. This duty was not at an end when the miners in 26 had finished there. The duty continued so long as an unsafe condition in 26 would be an unnecessary menace to men in adjacent workings. [4] The duty to inspect and keep safe or to warn these men of the danger that they might take steps to protect themselves was a continuing duty of the master. No warning of any kind was given. The question of fellow servant is not involved. Shannon v. [10] As to the appellant Edwards, the evidence presents a different aspect. He was general superintendent, not alone of this mine, but of all of the company's mines in that locality. While he had a general supervi sion, there was no evidence showing a duty of personal inspection of the underground workings on his part. There was no evidence that he had actual knowledge of the condition of chute 26, or that either the fire boss or mine foreman had reported these conditions to him. As to him the action should have been dismissed. Pac. 169; McKenzie v. North Coast Colliery | cific Ry. Co., 32 Wash. 30, 72 Pac. 450; MorCo., supra; Uren v. Golden Tunnel Min. Co., rison v. Northern Pacific Ry. Co., 34 Wash. 24 Wash. 261, 64 Pac. 174; McMillan v. North 70, 74 Pac. 1064. Star Min. Co., 32 Wash. 579, 73 Pac. 685, 98 Am. St. Rep. 908; Costa v. Pacific Coast Co., 26 Wash. 138, 66 Pac. 398. The fire boss had inspected the mine on the morning in question, knew of the dangerous condition of chute 26, but neither warned these men who were working right up to its margin, nor posted any notice of danger upon the bulletin board. Lawrence, the pit boss or mine foreman, had gone through the mine, knew of the dangerous condition of chute 26, knew that a squeeze had there set in, but neither warned those men nor took any step to remedy the conditions. The evidence was uncon- Several assignments of error were based tradicted that it was his duty to supervise upon the court's instructions. We have read the workings, and to see that the methods these instructions with care, and find that, employed by the men were safe. The re- as a whole, they correctly presented the law spondent testified that no one ever warned as applied to the evidence. We find no prejhim of this danger, and there is no evidence udicial error in the instructions. that any one ever did warn him or that he knew of it. [5] He did not assume the risk of dangers in his place of work resulting from the condition of adjacent workings, not under his control nor subject to his inspection. This case falls directly within the rule announced in McKenzie v. North Coast Colliery Co., supra. [6] Appellants cite many cases holding that where, in the operations of the work, conditions are constantly changing and the employé knows it, he accepts such risks as are ordinarily incident to such operations. Cully v. Northern Pacific Ry. Co., 35 Wash. 246, 77 Pac. 202. That rule has no application here. The changed conditions in chute 26 were not due to work then in progress. It was due to a squeeze of which the appellant had knowledge but of which the respondent had neither knowledge nor warning. [7] The respondent was not guilty of contributory negligence, unless the injury was caused by the insecure placing of the prop to his own roof which fell, and of this there was no evidence except that it fell. What caused it to fall was, as we have seen, under the evidence a question for the jury. Contributory negligence as a matter of law. was not established. [8] The evidence which we have discussed makes it plain that the appellant Lawrence was guilty of personal negligence. He had the direct supervision of this mine. He knew of the dangerous conditions, took no steps to remedy them, and failed to warn the respondent of their existence. [9] His negligence was that of the company. He and the company were liable as joint tort-feasors, and may be joined as defendants in the same action. Shear. & Red. on Neg. (5th Ed.) § 122; Howe v. Northern Pacific Ry. Co., 30 Wash. 569, 70 Pac. 1100, 60 L. R. A. 949; McHugh v. Northern Pa [11] Finally, it is contended that the verdict was excessive. At the time of the injury the respondent was a strong, well man, 29 years old. He is now by reason of the accident a cripple for life. He was capable of earning as a coal miner an average of $4 a day. He can now earn practically nothing. His left leg is atrophied, and almost completely paralyzed. He has little control of his urinary organs, and suffers constant pain. There is little hope of relief from any of these conditions so long as he lives. While the verdict seems large, we cannot say, in view of the respondent's helpless and hopeless condition, that it is unreasonable. McKenzie v. North Coast Colliery Co., supra; Murphy v. Pacific Telephone & Tel. Co., 68 Wash. 643, 124 Pac. 114. The judgment is affirmed as to the appellants Northwestern Improvement Company and William Lawrence. It is reversed, with directions to dismiss as to the appellant Edwards, who is entitled to his costs. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. 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