[No. 7194.

Decided April 24, 1908.]

#### William H. Harris, Respondent, v. Washington Portland Cement Company, *Appellant.**1*

Master and Servant — Injuries to Servant — Knowledge of Danger- — -Evidence—Question for Jury. The positive statements of an employee that he did not know of the danger from an effort being made to raise a water gate, are not overcome by proof of minor facts which he might have noticed and indicating to him that such attempt was being made, considering his position and the roar of the water, and the question is therefore for the jury.

Appeal — Review—Harmless Error- — Evidence. It is harmless to exclude a question on cross-examination as to the time a certain event had taken place, where it had been in substance answered many times by the witness.

Master and Servant — Contributory Negligence-Instructions— Relevancy. An instruction that plaintiff cannot recover if he voluntarily adopts an unsafe method where there was a safe way, need be given only where there are obviously two ways of doing the act.

Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered July 15, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

Affirmed.

*R. S. Eskridge, Philip Tindall,*and *Smith & Brawley,*for appellant.

*Robert H. Lindsay*and *Frederick R. Burch,*for respondent.

1

Reported in 95 Pac. 84.

Mount, J.

The plaintiff in this case recovered a judgment for $8,000, for the loss of a leg, alleged to have been caused through the negligence of the defendant. The case was tried to a jury. At the close of the plaintiff’s evidence the defendant’s counsel'moved for a directed verdict upon the ground of the insufficiency of the evidence, and at the close of all the evidence a similar motion was made. These *346motions were denied, and the case was submitted to the jury. The evidence shows that the plaintiff was directed to assist in raising a gate in order to let a large body of water escape from a flume; that while he was so engaged at the lower outside part of the gate, and in a dangerous position, the appellant’s foreman, who knew of his position and without notice to the respondent, suddenly raised or caused the gate to be raised from the inside, thereby precipitating a large body of .water onto the respondent and causing his injury.

The main question of fact in the case was whether the respondent knew, or ought to have known, that an' effort was being made to raise the gate from the opposite side. A careful reading of the evidence convinces us that this was a question for the jury. It is not claimed that the jury was not properly instructed upon this question, but it is urged that the question was one for the court. The plaintiff’s testimony clearly made out a case. There were some minor facts, such as that the end of a board projected through under the gate, which board might have been seen by the -respondent, and which would have indicated to him that others were attempting to raise the gate; but when we consider his position, the rush and roar of the water, and all his surroundings, such facts are not sufficient to overcome his positive statements. We think the court properly denied both motions.

In the course of respondent’s cross-examination he was asked this question: “Mr. Harris, will you state positively that Mr. Bush did not have time to walk back to the pressure box and get half way back with the peavey between the time the plank was put through and the happening of the accident?” An objection was sustained to this question. Both before and after this question was put to the witness, he testified that he could not fix any length of time between these events. “It happened quicker than I can tell you“instantaneous,” and like expressions were used. While the exact question was not answered by the witness, it was answered many times in substance, and the error, if any, was thereby cured.

*347Appellant also requested an instruction to tlie effect that, if in doing his work two methods of procedure were open to respondent, one of which was safe and the other unsafe, and he voluntarily adopted the unsafe method, he could not recover. This instruction was refused, and appellant argues that this ruling was error. The rule is correctly stated and should he given in cases to which it applies, but it applies only to cases where there are obviously two ways of doing a certain act, one way safe and the other way obviously dangerous, and the servant voluntarily elects the dangerous way. *Ramm v. Hewitt-Lea Lumber Co., ante*p. 263, 94 Pac. 1081. We find nothing in the record in this case to bring the respondent within the rule requested. The instruction, therefore, would tend to confuse rather than enlighten the jury, and it was not error to refuse the instruction.

We find no error in the record. The judgment must therefore be affirmed.

Hadley, C. J., Root, Crow, Fullerton, Rudkin, and Dunbar, JJ., concur.