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Opinion of the Court-MOUNT, J.

[26 Wash.

plank in first, and then go for the lines, and get the lines in, let go the lines, etc. They never appoint a certain man to untie or release the upper end of the gangplank from the fastenings in the slip on the dock, but generally the last man on the dock does it; something like that. Sometimes the mate sends a man up to do it, but they go of their own accord most of the time. The first mate is the officer of the steamer that has charge of these operations. The first mate had charge of it on this boat. There was no one else on the dock except the mate. It is the custom on this boat, in case of low tide, or so on, the mate always sings out, 'Easy the plank down,' or 'Lower her down,'-either way. In this case he did not give any of these directions. I looked up in the slip, and saw the mate untie the rope. I was watching for him to give orders to get around the plank and lift her down. I was right at the end of the plank, looking at him untie it. I knew the plank was coming in. I didn't know he was going to drop it. I was waiting for him to give the order to go up and lower it down. I didn't dream he was going to let it go."

There were other witnesses to the same effect. While there may arise from this evidence the inference that the plaintiff contributed to the injury by reason of waiting for the order, yet this inference would depend upon the length of time he waited, and whether any such inference arises or not depends upon the construction given his language.

"When the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence cannot be determined until one or the other of those conclusions has been drawn by the jury. The inferences to be drawn from the evidence must either be certain and incontrovertible, or they cannot be decided upon by the court." Detroit & M. R. R. Co. v. Van Steinburg, 17 Mich. 99.

Opinion of the Court-MOUNT, J.

Dec. 1901.]

This question was, under the evidence, properly left to the jury.

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2. The allegation of negligence is that "the first mate gave the order to the deck hands to take in the gangplank; that before said deck hands could get to the sides of said gangplank to lower the same to the deck, as was customary, without warning the said officer untied the rope which held the said gangplank to the deck, whereupon the same with great force," etc. The proof is that the captain blew a short blast of the whistle, which means to take in the gangplank; that the mate, without any warning, let the plank go so that it came down upon the plaintiff, etc. Certainly this is not a material variance, under § 4949, Bal. Code; nor a failure of proof as defined by § 4951. Whether the captain gave the order to the mate, and the mate to the crew, or whether the crew took the order directly from the whistle, is of no consequence. All evidently understood what was meant when the whistle was sounded, and the crew, no doubt, assumed that the mate would do his duty. Whether the mate actually gave the order or not, the fact is still the same,that the order was given him to give to the crew, and was understood and acted upon by the crew.

3. Appellant argues that even if the mate of the vessel is, in law, a vice principal, still since the injury complained of was caused by such vice principal performing a duty not pertaining to his employment as such, but one appertaining and belonging to a deck hand, that he was for that reason a fellow servant in regard to that employment. The rule contended for cannot apply here. It was not the negligence of a deck hand which caused the injury, because the negligence which caused the injury was not the mere act of untying the gangplank, or of let

Opinion of the Court-MOUNT, J.

[26 Wash. ting it fall upon the deck of the vessel, but was the failure to warn respondent of impending danger known to the master, and not to the servant. It was necessary in the operation of the boat to loosen the gangplank and take the same aboard, so that the vessel might proceed upon her voyage. It was the duty of the deck hands to do this work, but it was the duty of the master to say when and how this should be done, and direct the deck hands therein. If the principal had taken a deck hand, a fellow servant of plaintiff, on the dock, and wilfully or carelessly directed this fellow servant to drop a gangplank upon the deck of the vessel, where the respondent and other deck hands were, and where their duty called them, and where, without knowledge or warning, the gangplank was precipitated upon them and caused injury, can it be said that because the injury was done by a fellow servant, who obeyed the order of a principal, the principal would not be liable? Surely not; because the injury in that event would be caused by the negligent or wilful order of the master, and his failure to perform a duty, viz., to warn his servants of impending danger. So it is here. The negligence complained of is that the mate, by not warning plaintiff that he was intending to drop the gangplank, either by his own hand or by the hand of another, upon the deck where respondent was, and where it was his duty to be, caused the injury. This was not the act of a fellow servant, but the act of the principal. The mate, under such circumstances, was not a fellow servant with the respondent. Shearman & Redfield, Negligence (5th ed.), § 233; Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700 (1 Sup. Ct. 493); Metropolitan, etc., R. R. Co. v. Skola, 183 Ill. 454 (56 N. E. 171, 75 Am. St. Rep. 120).

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4. It is claimed that the court erred in instructing the jury that the mate was a vice principal, and not a fellow servant with the respondent, and that this instruction was an invasion of the province of the jury. It is alleged in the complaint and admitted by the answer, "that such officer was authorized by said defendant to hire and discharge the deck hands on said boat, with authority to superintend and direct said deck hands in and about the work for which they were employed. The evidence as to the authority of the mate was not disputed. It was therefore conceded that the mate had general supervision over the deck hands, with power to employ and discharge them, and to direct their movements. This, therefore, became a question of law for the court, and not of fact for the jury. The instruction was proper.

Several other errors are argued by appellant, arising out of instructions of the court to the jury; but these errors are based on principles already considered herein, and it is not necessary to further discuss them. The instructions, as a whole, fairly state the law involved in this case, and are based upon the evidence.

We find no error in the record. The case will be affirmed.


[No. 4060. Decided December 10, 1901.]

FRANK X. SCHREINER, Respondent, v. PETER EMEL, Appellant.


Where the pleadings in an action against a garnishee fail to show the amount claimed to be due from the garnishee to the

Opinion of the Court-WHITE, J.

[26 Wash. principal debtor, and the amount cannot be in any way determined from the record, the findings of the trial court as to the amount of such indebtedness are controlling, and where the amount is thereby shown to be below $200, an appeal will be dismissed, although the amount in controversy in the original action, to which the garnishment proceeding is auxiliary, may be in excess of $200.

Appeal from Superior Court, King County.-Hon. G. MEADE EMORY, Judge. Appeal dismissed.

George McKay and Morris & Southard, for appellant. Byers & Byers, for respondent.

The opinion of the court was delivered by

WHITE, J.-There is no statement of facts in the record. Respondent moves to dismiss the appeal because the amount in controversy is less than $200, and for other reasons. The respondent recovered a judgment in the superior court of King county, against one Frank Emel, for the sum of $389. After the recovery of this judgment, a writ of garnishment was sued out in said court against Peter Emel on an affidavit reciting the recovery of the judgment, and that Peter Emel was indebted to Frank Emel, etc. After the service of the writ of garnishment on Peter Emel, he answered by denying that he was indebted to Frank Emel. This was controverted by the reply affidavit of respondent. No other pleadings were filed or ordered by the court to be filed. On the issues made by the denial of such indebtedness and the reply affidavit of respondent, a trial was had without a jury, the same being waived. The court made its findings of fact and conclusions of law, and gave judgment thereon in favor of the respondent and against the appellant for $35.

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