no absolute duty rested upon the master in this case to prevent the charging of this guy wire, or, in other words, to preserve inviolable the insulators, so far as the safety of the respondent is concerned. The respondent here was a lineman, and had been in the employ of the company for something over two years, working first as a groundman, and for two years or more had been working as a lineman.

It is contended by the respondent that the question of whether or not the respondent was an inspector is a question of fact, upon which the testimony is conflicting, and that, therefore, the verdict of the jury upon that proposition is binding upon the court. We think, in any event, the judgment would have to be reversed by reason of the instructions given by the court; but, with the view that we take of the master's liability under the undisputed testimony, it will not be necessary to notice these errors. It is true that the respondent testified that he was not an inspector, and that he also testified, notwithstanding the fact that he had alleged in his complaint that he was a lineman, that he was not a lineman; but the testimony was evidently with reference to a definition or a statement of the lineman's duty as given by Mr. Hopkins, the superintendent of the tele. phone company, and the later testimony, not only of the appellant, but of the respondent and his witnesses, shows conclusively, it seems to us, that, while not nominally an inspector, the duties of a lineman embraced the duties of an inspector. Corporations of this kind act through employés. Necessarily, they cannot act in any other way. An inspection of their lines and posts and insulators must be made by the employés. In this case it is an admitted fac that there was no regular inspector and no inspectors other than the linemen. It is true that some of the railroad cases cited by the respondent decided that it was the duty of the company under certain circumstances to have inspectors, but we think none of those cases are in point here. In this case the respondent and the other linemen testified that they knew that the line or wire which occupied the insulator jointly with the wire with which respondent came in contact was charged with electricity. The respondent testified that he knew the power of electricity, and the danger that would be incurred by coming in contact with a live wire; that he knew that, if the insulator broke, the result would be that the wire which he touched would be charged; and he knew also that porcelain insulators frequently did break. It seems to us that this brings him within the rule which we have announced above,-that when he accepted the employment, that was necessarily hazardous, he assumed this risk, which, under all the testimony, was an ordinary risk, and that he did not exercise the discretion which he ought to have exercised in testing this wire. The testimony shows

that, shortly after the accident, one of the appellant's witnesses, Mr. Dart, observed the insulator, and separated it from the wires, and it was made an exhibit in court. He also testified that the insulator when it was exhibited was in the same condition that it was immediately after the accident, when he first discovered it. About one-half of the insulator was gone, and there was some contention developed in the trial as to whether the broken part of the insulator was towards the post which respondent climbed; and it was conceded this might have been detected by a lineman who was accustomed to looking at such things, if the broken part of the insulator had been next to the post. We think, and such was the opinion of the lower court who heard the testimony, that it is demonstrated that it was a physical impossbility for the broken part of this insulator to have been in the opposite direction from the post without making a complete insulation. This, therefore, must be considered an e3tablished fact in the case. The respondent says that he glanced at the insulator when he went to ascend the post, but did not give it any particular attention, and did not make any test. The testimony of the other linemen was-and it is not controverted-that linemen carried apparatus by which they could test insulators, and that they understood that they had to look out for themselves so far as danger was concerned. It appears from the testimony that the respondent must have known that no other inspector was kept by the company, and, even if there had been, it is impracticable for an inspector to make tests that would protect workmen at all times. An inspector cannot be maintained at every insulator. An insulator might be tested and found sound at one hour of the day, and the next hour it might be broken, so that it would not insulate the wires, and the only way in which workmen could be protected would be to make these tests themselves; and it was testified in this case by the respondent that it would only have required a moment's time. While there is no gainsaying the rule that under ordinary circumstances the employé has the right to rely upon the fact that the master will furnish him a safe place to work and safe appliances, yet the law does not intend that this shall be a blind and unreasonable reliance, but that reasonable men shall exercise in a reasonable manner the faculties of which they are possessed. It seems to us it would only have been such reasonable exercise of prudence upon the part of the respondent in this case to have tested this wire before he touched it.

While there has been possibly some conflict in authority over cases which, in prin ciple, were something like the case at bar, we think the great weight of authority sustains the view which we have taken. The first case cited by appellant-Flood v. Telegraph Co. (N. Y. App.) 30 N. E. 196-was an

The

action for the death of the servant while working as lineman on the telegraph pole, caused by leaning his weight on one of the cross-arms, so that it broke, causing him to fall. The court there decided that the defendant's inspectors (and it seems conceded in that case that they had inspectors) were not required to climb each pole, and examine the arms; and the deceased knew this, having been employed by defendant for several years, part of the time as inspector, and the rest of the time as a lineman. court, among other things, said: "The linemen all discharge their duties in the daytime. They have frequent occasion to climb the poles, and work about the arms, and obviously they are the persons who are expected to see the condition of the arms, and, if they find them insufficient, to replace them, or to report the fact." And so in this case it was the inemen, and the linemen only, who were in the habit of climbing these poles; and under the undisputed testimony, there being no one else to inspect them, it was the duty of the linemen, before taking hold of the wire which might become dangerously charged with electricity, to test the same. So well understood are the general duties of a lineman, and the opportunities which he has for examining the poles and the instruments with which he works, that it was held in McGorty v. Telegraph Co. (Conn.) 38 Atl. 359, that a lineman in the employ of the telephone company could not recover for an injury caused by the fail of a pole upon which he was at work, notwithstanding a prior statement by the foreman that he had been up the pole, and that it was safe, where plaintiff knew that it was the rule and custom for each lineman to test the pole for himself, and that suitable appliances were at hand for making such test, and for securing the pole in case the lineman doubted its safety. It seems to us that the circumstances of this case are parallel with the circumstances surrounding the case at bar, although there is an attempt by respondent in his brief to distinguish them. It was true that the trial court found in that case "that it was the rule and custom, in this branch of the work, that each lineman should look out for his own safety in climbing poles' "; but the undisputed testimeny in this case is to the same effect. Bergin v. Telegraph Co. (Conn.) 38 Atl. 888, was a case where a telephone company and an electric railroad company used the same pole for their wires; and the court held that the law did not absolutely require the telephone company, as between it and its linemen, to inspect and test guy wires and circuit breakers put in by such railroad company, to discover whether they were in a safe condition, but whether the employer or employé should discharge such duty depended on the circumstances of the particular case. In commenting on the testimony in that case, the court said: "Linemen are employed by the tele

phone company, among other things, for the purpose of doing work which is dangerous, by reason of the possible contact of the telephone wires with highly-charged wires of the street-railway or other companies. The linemen are to do their own testing in such work. The telephone company has no other men than the linemen to do the testing, as the linemen knew; and there was nothing to prevent Delaney [who was the plaintiff in the case] from testing the guy wire, and the linemen on this job were furnished with all the tools, appliances, and wires with which to test wires of the electric streetrailway company." This case seems to us in principle to be almost parallel with the case at bar. It is insisted by the respondent that the first case cited (Flood v. Telegraph Co., supra) is nconsistent with the previous case in the same court (viz. Bushby v. Railroad Co. [N. Y. App.] 14 N. E. 407), in which it was held that the defendant was liable to a brakeman on account of a wooden stake breaking because of a latent defect. We think the circumstances of this latter case were altogether different, and it was evidently considered by the court deciding the case of Flood v. Telegraph Co., supra, that no inconsistent principles were applied in the two cases, for the former case is not overruled or mentioned in the latter opinion. Dixon v. Telegraph Co., 68 Fed. 630, was a case where the plaintiff was an employé of the telegraph company, and, when engaged with others in stringing wires on its poles, was instructed to climb a pole belonging to another company, to get certain wires out of the way. While descending, after performing the work, he fell, in consequence of one of the spikes being insufficiently secured. It was held that the danger from which the accident resulted was one of the risks of plaintiff's employment, which was assumed by him, and for which his employer was not liable. That case, however, is not as strong a case in favor of the master as the case at bar, for there the plaintiff was directed by the foreman, who was at the time acting for the defendant. The court laid down the rule in that case as follows: "The employer is not an insurer of the safety and sufficiency of the tools, machinery, or appliances furnished to the employé for his use, nor is he a guarantor of the safety of the place where or upon or about which the employé is required to work. The duty cast by law upon the employer is to use ordinary and reasonable care to furnish safe and sufficient tools, machinery, and working places. If he has done this, he has performed the full measure of his duty. The employé, in order to recover for defects in the appliances or working places of the business, must allege and prove that the appliance was defective, or the working place insecure; that the employ er had notice or knowledge thereof, or that, by the exercise of ordinary and reasonable care, he might have had such notice or

knowledge; and that the employé did not know of the defect, and had not equal means of knowing with the employer." The last sentence in this proposition must be given as much force as the preceding ones; for if the employé does know of the defect, or has equal means of knowing' with the employer, then, certainly, it is his unquestioned duty to investigate before proceeding. In Griffin v. Railway Co. (Ind. Sup.) 24 N. E. 888, the rule was announced that, "where the danger is alike open to the observation of all, both master and servant are upon an equality, and the master is not liable for an injury resulting from the dangers of the business." In this case, certainly, the danger was not only as open to the observation of the respondent as it was to the master, but the undisputed testimony shows that the master obtained his knowledge of the danger through the respondent and his fellow servant. In Larsson v. McClure (Wis.) 70 N. W. 662, it was held that, "when the danger is alike open to the observation of all, both the master and the servant are upon an equality, and the master is not liable for an injury resulting from the dangers incident to the employment." In Railway Co. v. Brown (Ind. Sup.) 42 N. E. 359, the court said: "Every service has its own peculiar hazards, and the law does not hold the master accountable for such hazards as ordinarily and naturally belong to any service,”— and quoted approvingly Day v. Railway Co., 137 Ind. 206, 36 N. E. 854, where it was said: "In a case where the servant is one of mature age and experience, as in this case, the law never imposes the duty on the master of becoming eyes and ears for his servant, where there's nothing to prevent the servant from using his own eyes and ears to avoid danger. * *The law requires that men shall use the senses with which nature has endowed them; and, when without excuse one fails to do so, he alone must suffer the consequences, and he is not excused where he fails to discover the danger if he made no attempt to employ the faculties nature has given him." The rule is thus announced in Wood, Mast. & Serv. § 328: "When a servant is employed upon work which, equally within the knowledge of the master and the servant, is of a dangerous nature, the master is not liable for the consequences of an accident occurring to the servant in the course of that employment, unless there be negligence on the part of the master, and the absence of rashness on the part of the servant. A servant is bound to exercise his own skill and judgment, so as to protect himself in the course of his employment, and the master is not regarded as warranting, generally, his safety. He is himself bound to exercise proper care, and cannot claim indemnity from the master for an injury resulting to him which might have been prevented if he had himself been reasonably vigilant." Substantially the same

principle is announced in section 366, viz.: "A master is not liable for injuries to his servant while using machinery in the employment, if the servant has the same knowledge of its defects, or the danger incident to its use, as the master, or if, in the exercise of due care, he ought to have such knowledge, and, at or before the time the accident occurred, there was nothing to indicate any danger such as demanded or suggested precautions which were omitted by the master." In this case it was equally within the knowledge of the master and the servant that this was a dangerous employment, and it cannot be said that there was negligence on the part of the master, and absence of rashness on the part of the servant, or that the servant used his skill, to protect himself in the course of his employment. He had sufficient skill, according to the undisputed testimony, to protect himself, and he had the apparatus at hand for testing the insulator and the wires. "If the servant is to recover damages," says Mr. Beach, in his work on Contributory Negligence (section 299), "he, like any other plaintiff, comes into court under the legal obligation of showing, or having it sufficiently appear, that his own negligence has contributed in no legal sense to the injury." And in section 346 of the same work it is said: "Knowledge on the part of the employer, and ignorance on the part of the employé, are of the essence of the action; or, in other words, the master must be at fault and know of it, and the servant must be free from fault and ignorant of his master's fault, if the action is to lie. The authorities all state the rule with these qual ifications." There is a wilderness of authority to the same effect, but it would serve no good purpose to reproduce it here. We have examined with patience the authorities cited by the respondent, and, except in one or two cases, notably cases with reference to damages arising from the falling of posts, which we think are in conflict with the cases cited on that subject by the appellant and noticed above, they are not in point. In all of them it appeared that the injury was caused by defects or dangers which were not apparent to the servant, or which would not have been apparent to him if he had exercised ordinary care,-such care as was consistent with the dangers incident to the employment. The citation from 7 Am. & Eng. Enc. Law, p. 830, to the effect that "it is the duty of a master, not only in the first instance to make reasonable efforts to supply his employés safe and suitable machinery, tools, etc., but also thereafter to make like efforts to keep such machinery, etc., in safe and serviceable condition, and to that end he must make all needed inspections and examinations," and 2 Bailey, Mast. & Serv. §§ 2619, 2620, to the same effect, are, of course, accepted as the law; but we do not think that acceptance will avail the respondent in this case, for the reason, as we before inti

mated, that these tests were made through the linemen for this company. The same rule is announced in Comben v. Stone Co. (N. J. Err. & App.) 36 Atl. 473, cited by appellant, where it is announced that the rule is subject to the qualification that the servant is without knowledge of the danger, and cannot observe and acquire the knowledge in the exercise of ordinary care in the employment. This qualification of the rule runs through all the cases.

The respondent alleges in his complaint that the plaintiff did not know, and by the exercise of reasonable care could not have known, the fact that said wire was charged with electricity. By this allegation he recognized the principle of law which we have just enunciated, and it was necessary for him to make this fact appear. We think, from an investigation of the whole case, that it appears from undisputed testimony that plaintiff did not exercise reasonable care in the investigation of the dangers which he knew were incident to his employment, and that had he exercised such care, and made the tests which reasonable prudence would have dictated, he would have had knowledge of the danger which beset him. The acciIdent was unfortunate, and the result most lamentable; but, with our view of the law governing the case, the judgment must be reversed, and the cause is remanded to the lower court, with instructions to dismiss the same.

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

(19 Wash. 418)

SPOKANE COUNTY v. PRESCOTT et al. (Supreme Court of Washington. June 10, 1898.)

STATUTE OF LIMITATIONS ACTION ON OFFICIAL

BOND.

1. Action on county treasurer's bond, conditioned that he perform the duties of the office required by law, is not within the limitation applicable to "an action on a contract in writing, or liability, express or implied, arising out of a written agreement," the obligation which the treasurer has not performed being his statutory duty to pay over county funds to his successor, and the bond being collateral security.

2. Failure to get leave of court, under Ballinger's Codes & St. § 5686, to bring action on county officer's bond, does not prevent the running of statute.

Appeal from superior court, Spokane county; Leander H. Prather, Judge.

Action by Spokane county against David S. Prescott and others. Judgment for plaintiff. Defendants appeal. Reversed.

Graves, Wolf & Graves and Danson & Huneke, for appellants. John A. Pierce, Pros. Atty., and Harris Baldwin, for respondent.

REAVIS, J. Appellant Prescott was treasurer of Spokane county from January 9, 1893,

until January 14, 1895. Prior to entering upon his official duties, he executed an oficial bond, which was duly approved by the board of county commissioners. On January 14, 1895, it was his duty, as county treasurer, to pay to his successor in office the sum of $72,837.78. He paid to his successor only $19,631.65. There was due from him to the county at that date the sum of $53,206.13. The respondent filed its complaint on the 27th day of January, 1898, in the superior court, in substance stating the above facts, and on the same day obtained leave from the superior court to bring the suit. Appellants Prescott and his sureties on his official bond demurred to the complaint, stating as ground for the demurrer that the action was not commenced within the time limited by law. The demurrer was overruled, and appellants then answered, alleging that the cause of action accrued on January 14, 1895, and that the action was not commenced until January 27, 1898; that respondent did not apply to the court for leave to bring such action until January 27, 1898; and that it was within the statute of limitations. Respondent interposed a demurrer to the answer, which was sustained, and judgment was entered as prayed in the complaint. The appeal is from this judgment. The appellant Prescott appeared separately, and the sureties appeared together.

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Counsel for respondent maintain that the limitation applicable to the action is found in subdivision 2, § 4798, 2 Ballinger's Codes & St., as follows: "Within six years: An action upon a contract in writing, or liability express or implied arising out of a written agreement." Appellants contend that the limitation applicable to the action is found in section 4800, 2 Ballinger's Codes & St., as follows: "Within three years: An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument." The solution of this controversy requires an answer to two questions: First. Is the principal (the treasurer) sued upon a contract, and, if so, where is the contract found, and what is the evidence of it? Second. Upon what liability is the action maintained, and does it arise out of the official bond of the treasurer? Is it sufficient that the contractual relation between the parties may have had its origin in a written agreement, though the liability sought to be enforced arises from extraneous matters, or must the liability arise directly upon the written agreement?

In Chipman v. Morrill, 20 Cal. 137, Mr. Justice Field, discussing this question, says: "The statute provides that 'an action founded upon any contract, obligation, or liability founded upon an instrument of writing,' except in certain designated cases, shall be commenced within four years, and an action upon a contract, obligation, or liability not thus founded, with certain exceptions, shall

be commenced within two years. * The statute by the language in question refers to contracts, obligations, or liabilities resting in, or growing out of, written instruments, not remotely or ultimately, but immediately; that is, to such contracts, obligations, or liabilities as arise from instruments of writing executed by the parties who are sought to be charged in favor of those who seek to enforce the contracts, obligations, or liabilities. The construction would be the same if the word 'founded' were omitted, and the statute read 'upon any contract, obligation, or liability upon an instrument of writing.'" The statute of this state prescribes the duties of the county treasurer. The essence of this action is for the breach of those statutory duties imposed upon the treasurer. His duties under the statute were not contractual. Here, at any rate, is an express obligation imposed, and an express liability for the breach of the obligation. The bond set out in the complaint is the statutory bond which the treasurer is required to execute, together with his sureties. The condition recited in the bond

was

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is as follows: "The condition of the above obligation is such that, whereas the abovebounden principal * * elected to the office of treasurer of Spokane county: * * * Now, therefore, the condition of this obligation is such that if the said David S. Prescott shall well, truly, and faithfully perform all official duties now required of him, and shall well, truly, and faithfully execute and perform all the duties of such office of treasurer of Spokane county required by any law to be enacted subsequently to the execution of this bond, then this obligation is to be void and of no effect; otherwise, to remain in full force and virtue." Manifestly, in conformity to well-recognized legal principles, no action can be maintained against the sureties unless the liability of the principal exists at the time of the commencement of the action. One of the duties of the treasurer required by the statute was the payment of the money in his possession belonging to the county to his successor in office. The liabil ity arose when he neglected or refused to make such payment. Certainly, the cause of action accrued at that date. The undertaking of the sureties was collateral security for the performance of the duties of their principal. The bond itself is security that an officer will discharge his duties. His failure to discharge them is a breach of a statutory duty. The bond does not impose any obligation upon him different from that created by the statute. If he had executed no bond, but had assumed the functions of the office, and collected moneys, the duty would still be imposed upon him to pay them over to his successor. The bond is collateral security, as set forth in Walton v. U. S., 9 Wheat. 656. State v. Conway, 18 Ohio, 235, was an action to have execution upon a judgment rendered against a former sheriff and

the sureties upon his official bond. Where the plea of the statute of limitations was interposed, the court observed: "The actual cause of action is not the execution of the bond (that is more in the nature of a collateral security); but the cause of action is the misfeasance,-the false return. Without proof of the false return, there could be no recovery. The action is, in effect, although not so in form, an action against an officer for misfeasance in office. So far as actions of this character are concerned, the limitation acts upon the cause, not the form, of action. And the effect of the statute cannot be evaded by any change in the form of action." The principle is reaffirmed and restated in State v. Blake, 2 Ohio St. 147. That was an action upon the official bond of the county auditor, and the cause of action was losses to the county in a large amount by reason of a dereliction of duty on the part of the officer. The supreme court of Kansas, in Ryus v. Gruble, 31 Kan. 767, 3 Pac. 518, in an action upon a sheriff's bond to recover damages for the levy of a void execution, said: "As before stated, the wrongs committed by the defendant are the real and substantial foundation for the plaintiff's cause of action, and the sheriff's bond is virtually only a collateral security for the enforcement of such cause of action. The bond does not give the cause of action; the wrongs or delicts do; and the bond simply furnishes security to indemnify the persons who suffer by reason of such wrongs or delicts. * * Whenever a cause of action

is barred by any statute of limitations, the right to maintain an action therefor upon a bond which simply operates as a security for the same thing must necessarily cease to exist. When the principal debt or cause of action fails, the security must also fail." These conclusions are also affirmed in the same court in Trust Co. v. Walcott (Kan. App.) 47 Pac. 9, and the principle stated in Davis v. Clark (Kan. Sup.) 49 Pac. 667; Commissioners v. Van Slyck (Kan. Sup.) 35 Pac. 299; Mount v. Lakeman, 21 Ohio St. 643; State v. Kelly, 32 Ohio St. 430; Dawes v. Shed, 15 Mass. 6; Allen v. State (Kan. App.) 51 Pac. 572; Ware v. State, 74 Ind. 181: Whitney v. Gammon (Iowa) 72 N. W. 552. If the bond be merely collateral security for the performance of the principal contract, and is not itself the original contract, then the question here in controversy is illustrated by reference to the rules controlling principal and suretyship. In states where a mortgage conveyes the fee to the mortgagee, an action upon the mortgage is not barred, though the debt may be; but whereas in this state the mortgage creates a lien only, and is an incident to, and collateral security for. the debt, when the principal (the debt) is barred, no action can be maintained upon the mortgage itself (the collateral security for the debt). 2 Jones, Mortg. (5th Ed.) § 1207; Van Eaton v. Napier, 63 Miss. 222.