mature years and intelligence, who assumes, upon request, the work of slacking lime for the purpose of whitewashing. The employer in this case, is not to be complained against for assuming that such a man understands, as well as the employer, all that is necessary to be understood about the work he undertakes."

In San Antonio Gas Co. v. Robertson, 93 Tex. 503, 56 S. W. 323, the servant lost an eye while spreading heated tar upon a boiler higher than his head, some of the tar splashing into his eye. He had never performed such a labor before, and was ignorant of the danger of such an occurrence.

court says:

The

"The case does not come within the principle, so often declared, that the master engaged in a dangerous business must not expose an inexperienced servant to the hazards of it, without warning of their existence. . . No authority has been found, and we think no sound one can exist, in which the duty to warn and instruct the servant arises where no unusual or extraordinary danger is to be encountered. . . That a serious injury was inflicted does not prove that the work was more than ordinarily dangerous; for there is scarcely a business or situation in which one may not, without negligence in any quarter, receive a serious injury to so delicate an organ as the eye. Such injuries do not, however, generally happen from ordinary risks; and, hence, where only ordinary risks. are to be incurred, they are not to be anticipated and provided against."

See, also, Illinois Cent. R. Co. v. Young, 124 Ky. 8, 97 S. W. 1115.

A well-considered case, citing many authorities in its support, is that of Hysell v. Swift & Co., 78 Mo. App. 39, where a boy was set to work brushing off a rail along which the carcasses of the animals were propelled. The dust on the rail contained poisonous bacteria, some of which lodged in the boy's eye and destroyed it. It was contended it was the duty of the master to know the probability of such an injury and to warn the servant against it, or to furnish him protection against its happening. It was not shown that, in all

Nov. 1909]
Opinion Per MORRIS, J.

the clearing of the rail before, any bacteria had found lodgment and worked injury to any one. The court held that the injury could not reasonably have been anticipated, and would not have happened except under exceptional circumstances, and that in such cases it is not necessary to take precautionary measures to prevent an injury, although, if taken, the injury could not have happened; citing Ray, Negligence of Imposed Duties, 133, that: "A reasonable man does not consult his imagination, but can be guided only by a reasonable estimate of probabilities"; and Webb's Pollock on Torts, 45, where that author says:

"A reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all.”

A like rule is laid down in American Brewing Assn. v. Talbot, 141 Mo. 674, 42 S. W. 679, 64 Am. St. 538, where. it was sought to fix the charge of negligence on the defendant in not anticipating the sinking or settling of a warehouse, caused by an unusual rise in the Mississippi, it being held, where an injury cannot reasonably be anticipated, and would not have happened except under exceptional circumstances, it is not negligence to fail to take precautionary measures to prevent it.

Mr. Justice Peckham recognizes the same rule, in Hubbell v. Yonkers, 104 N. Y. 434, 10 N. E. 858, 58 Am. Rep. 522, in holding, where the accident is one of that character whose occurrence is rare, unexpected, and unforeseen, to hold it to be negligence in failing to provide against it, is to hold to a most extensive liability, and to cause defendants in cases of this character to become substantially insurers against any accident which human care, skill, or foresight could prevent. Chief Justice Cooley gives his support to the doctrine, in Sjogren v. Hall, 53 Mich. 274, 18 N. W. 812,

34-55 WASH.

Opinion Per MORRIS, J.

[55 Wash. in saying that where the person injured had the same means as the employer of understanding the danger, or the accident was such as no one would have been likely to foresee, there could be no recovery. In both the last-cited cases many illustrations are given of the effect and prevalence of the doctrine. Other cases directly in point are: Nelson v. Chicago, M. & St. P. R. Co., 30 Minn. 74, 14 N. W. 360; Lane v. Town of Hancock, 142 N. Y. 510, 37 N. E. 473; Beltz v. Yonkers, 148 N. Y. 67, 42 N. E. 401. So that, as was said in Hysell v. Swift & Co., supra, whether judged by the accepted rule requiring the master to provide a reasonably safe place for his servant to work, and reasonably safe tools and appliances with which to work, and guard him; or whether, conceding the proper application of such rule in the great variety of uncommon cases, where it has been held to be the duty of the master to become informed on those matters of scientific knowledge possessed by men of general education and information relative to the danger and hazard of the business in which he is engaged, and that he should give information of such danger to his uninformed servant, and provide him with reasonably safe appliances for his protection; it likewise follows that, when injury is unlikely to follow lack of information, when it cannot reasonably be expected to follow, when the chance of injury on account of lack of information is remote and could not reasonably have been anticipated, and would not happen unless in exceptional circumstances, then a failure to provide against resulting injuries is not negligence.

It, therefore, follows, if our reasoning be correct and the authorities we have cited are sound in principle; that whether the injury in this case was from an apparent danger which was one of the attendant risks of the employment, or whether it was so unusual in its character, so unlikely to happen, so unexpected in ordinary conditions, that the ordinarily prudent man, whether master or servant, could not foresee it, nor anticipate it, and thus guard against it, the re

sult is the same; negligence cannot be attributed to the re

spondent.

Believing, therefore, the court below was justified in his ruling, the judgment is affirmed.

MOUNT, CROW, PARKER, and CHADWICK, JJ., concur. RUDKIN, C. J., FULLERTON, GOSE, and DUNBAR, JJ., dis

sent.

[No. 8114. Department One. November 5, 1909.]

A. H. JONES, Appellant, v. DANIEL JONES et al.,
Respondents.1

BROKERS-CONTRACT OF AGENT RECOVERY OF DEPOSIT-PARTIES LIABLE. Where lots were sold by one of the defendants to G. and resold by G. to the plaintiff, the fact that G.'s agent in effecting the resale was also a selling agent for the first defendant and officed with the other defendant, would not render the defendants liable for the return of plaintiff's earnest money on G.'s failure to consummate the resale to plaintiff; plaintiff's only remedy being against G. and his agent.

MONEY RECEIVED PLEADING AND PROOF-VARIANCE. Where an agent, occupying an office jointly with defendant, effected a sale and left the state, and defendant found among the agent's papers a certificate of deposit endorsed in blank, in an envelope showing that it was part of the earnest money paid to the agent, the fact that defendant deposited the certificate in bank to his own account, and held it subject to the agent's order, would not render defendant liable to the vendee on a complaint alleging that defendant had made the sale and received the earnest money, defendant having had no connection with the transaction and no business connection with the agent.

Appeal from a judgment of the superior court for King county, Tallman, J., entered November 4, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action on contract. Affirmed.

'Reported in 104 Pac. 786.

Million & Houser and George M. Sinclair, for appellant. Hermon W. Craven, for respondents.

MORRIS, J.-On April 17, 1907, W. N. Pinkston, on behalf of the appellant, entered into a contract for the purchase of lots 1, 2, and 3, block 24, of Mt. Baker Park Addition to Seattle. Two hundred dollars was paid in cash, and the balance payable within eighteen months. The contract was executed on behalf of James Green, claiming to be the owner of the lots, by F. L. Fehren, and provided that it was made subject to the owner's acceptance. No subsequent payments were made, and thereafter appellant brought this action, alleging that The Hunter Tract Improvement Company was at all times the owner of the lots mentioned, and that in April, 1907, it entered into a contract with James Green for the sale to him of said lots upon terms not known to the plaintiff; that thereafter F. L. Fehren, then being the agent of the Improvement Company and of Daniel Jones & Company, and acting for them, entered into the first-mentioned contract with Pinkston, and received the $200 for and on behalf of the Improvement Company and Daniel Jones & Company; that appellant, upon examination of an abstract, discovered what he claimed to be an encumbrance upon the title, and demanded its removal, and his demand being refused, he then presented the contract to Green for his approval, but that Green refused to approve same, and he then demanded the return of his $200, which being refused, the action was brought. The record for some reason omits any other pleading, and we are therefore unable to determine what the answers were. We assume, however, that the issues were properly joined between appellant and respondents Daniel Jones & Company and the Hunter Tract Improvement Company. James Green, not being served with summons, did not appear. The cause was

tried before the court, a jury being waived.

The court below finds that the Improvement Company, on April 4, 1907, being the owner, entered into a contract for the