Opinion Per DUNBAR, J.

[58 Wash.

Appellant quotes somewhat extensively from the case of La Rue v. Groezinger, 84 Cal. 281, 24 Pac. 42, 18 Am. St. 179, where a contract by which A. agreed to sell, and B. to buy, all the grapes of a certain standard which A. might raise in a certain vineyard during a certain period, was declared to be assignable by A. But in the course of the opinion, the court used the language set forth in appellant's brief, to the effect that, though a contract may not expressly say that it is not transferable, yet if there are equivalent expressions or language which excludes the idea of performance by another, it is not assignable; citing Shultz & Co. v. Johnson's Adm'r, 5 B. Mon. (Ky.) 497. An examination of that case shows that S. contracted with J. to receive, and pay for at a certain price, all the hemp which J. could raise for six successive years on not less than one hundred or more than one hundred and sixty acres of land, of his own raising. J. died, and in a suit by his administrator for refusing to receive and pay for a crop raised after the death of J., held that the contract was personal and that it could not be performed by J's administrator, the court holding that there was a personal equation in that case which could not be disregarded; that S. contracted with reference to the requisite skill and experience which J. was known to possess, and that by the especial terms of the contract he could not be compelled to take the production of any one else. But the court, in La Rue v. Groezinger, supra, shows conclusively by its announcement that it would not have held such a contract as the one in question nonassignable, for it proceeds to say:

"If the language does not exclude the idea of performance by another, and the nature of the thing contracted for, or the circumstances of the case, do not show that the skill, credit, or other personal quality or circumstance of the party was a distinctive characteristic of the thing stipulated for, or a material inducement to the contract, then the contract was assignable, under the provisions above quoted. And while it is to be conceded that men have perfect liberty to contract with whom they choose, and to exclude the idea

June 1910]

Opinion Per DUNBAR, J.

of performance by another, yet in the absence of anything indicating such an intention, we do not think that the courts should indulge in speculation as to possible prejudice or fancied preference. It should not assume that the parties were influenced by unusual or conjectural motives merely because some men might be so affected under similar circumstances."

The whole opinion is an argument against appellant's contention.

But instead of there being special circumstances in this contract to indicate that the intention of the parties was that it should not be assignable, the contract itself expressly provides for an assignment in the eighth clause, which is as follows: "Where the words vendor or vendee appear, it is understood to include heirs, assigns, successors or legal representatives." It is true that, after the form of assignment on the back of the contract, the following words appear: "This assignment is hereby accepted and approved." But this is no part of the contract. The contract was completed, signed, and acknowledged by the parties, and this provision was not incorporated in that agreement, and the parties to the contract can in no way be bound by it. It was evidently incorporated simply as a provision for a novation, and for the purpose of releasing the original contractor and accepting the obligation of the assignee in lieu thereof. There being, then, no obligation on the part of the assignee to have this assignment approved, it is immaterial whether the approval was made through mistake or otherwise. Certain it is that there would have been no protection to the appellant under this contract, in respect to the condition it is complaining of, if it had executed a deed to Marguerite Foy, and she had seen fit to deed the same to the respondents Stone, or to make any contract that she saw fit to make with relation to the land.

We think there is no merit in the appeal, and the judgment must be affirmed.

RUDKIN, C. J., PARKER, MOUNT, and CRow, JJ., concur.

[No. 8682. Department One. June 9, 1910.]

J. E. FORSMAN, Appellant, v. SEATTLE ELECTRIC COMPANY, Respondent.1

MASTER AND SERVANT-ASSUMPTION OF RISKS-RELIANCE ON DIRECTIONS-UNLOADING HEAVY OBJECTS-QUESTION FOR JURY. A common laborer, assisting in unloading from a wagon a barrel of tar weighing five or six hundred pounds, without previous experience, or knowledge of the weight, may rely on the superior knowledge of the master and act as directed, and does not, as a matter of law, assume the risk of an injury from an unsafe method of unloading, whereby his hand was crushed because he was unable to bear the weight which bore upon him while acting as directed in lowering the barrel to the ground.

Appeal from a judgment of the superior court for King county, Gay, J., entered November 22, 1909, in favor of the defendant, upon granting a nonsuit in an action for personal injuries sustained by an employee engaged in unloading barrels of tar. Reversed.

Reynolds, Ballinger & Hutson, for appellant.

James B. Howe and H. S. Elliott, for respondent.

GOSE, J.-The plaintiff brought this action to recover damages for personal injuries sustained while in the service of the defendant. At the close of his testimony the court, upon the motion of the defendant, dismissed the case. Plaintiff has appealed.

The respondent was engaged in cement and brick work upon the public streets of Seattle. The basis of the appellant's claim for relief is that, at the time of the happening of the accident, he was working for the respondent as a common laborer; that he had been so employed for something over a day; that while engaged in wheeling sand, he was called by the respondent's foreman to assist in unloading three barrels of tar from a dump wagon; that two of the

'Reported in 109 Pac. 121.

barrels were set upright in the wagon, and the third, which was placed crosswise between the two, had become lodged or, as it was variously expressed by the witnesses, "jammed," "squeezed," or "pinched" between the upright barrels; that the foreman directed him to get in the wagon and assist three other men in dislodging it; that he did so, and the barrel was rolled on the rear of the wagon; that the foreman then directed him to stand on the ground and assist in unloading; that three men remained in the wagon, one at each end of the barrel, and the third in the center, and the three men upon the ground took like positions; that the appellant was holding one end of the barrel and that, in lowering it from the wagon to the extension of the brake beam, a distance of about two feet, he was unable to hold the weight which bore upon him, and that his finger was crushed between the brake beam and the edge of the barrel; that the barrels weighed five or six hundred pounds each, and that the usual way of unloading them was to drop them from the wagon to the ground, but that owing to the slope of the street, and to prevent the rolling of the barrels and possible injury to people, the usual method was not followed. In addition to the facts stated, the appellant testified that he had had no previous experience in that kind of work; that when he took hold of the barrel in the wagon to assist in dislodging it, it moved easily; that he did not know its weight and that the foreman said that it was light, and that "I took his word for it."

The governing principles of law are well settled in this class of cases, but the difficulty lies in their proper application. The master commands and the servant obeys, and he has a right to rely upon the superior knowledge of the master and to act as directed, unless the danger in doing so is so open or apparent that a man of ordinary prudence would discern the danger and refuse obedience. If the appellant did not know the actual or approximate weight of the barrel, he did not assume the risk as a matter of law. His position, as

Opinion Per GoSE, J.

[58 Wash. we have said, was one of subordination. Obviously he had a right to rely upon the superior knowledge of the master as to the weight of the barrel, in the absence of knowledge upon his part, or notice of facts from which the law would presume knowledge, and to assume that the master would not put him in a place of peril. It cannot be declared, as a matter of law, that the appellant knew the actual or approximate weight of the barrel, or that he had knowledge of facts from which the law would impute knowledge. This question should have been submitted to the jury. There is abundant evidence to warrant the jury in concluding that the method employed in unloading the barrel was both unusual and unsafe. The weight of the barrel was the proximate cause of the injury. The appellant was injured because he was not able to hold the weight which bore upon him. Among other cases, the respondent relies upon, International & Great Northern R. Co. v. Figures, 40 Tex. Civ. App. 255, 89 S. W. 780; Brown v. Oregon Lumber Co., 24 Ore. 315, 33 Pac. 557; Dunlap v. Barney Mfg. Co., 148 Mass. 51, 18 N. E. 599; Worlds v. Georgia R. Co., 99 Ga. 283, 25 S. E. 646; Bryan v. Southern R. Co., 128 N. C. 387, 38 S. E. 914; and Nephew v. Whitehead, 123 Mich. 255, 81 N. W. 1083.

In International & G. N. R. Co. v. Figures, the plaintiff and another, at the instance of the master's foreman, undertook to take up and load into a car a piece of iron twelve inches square, about six feet in length, and weighing 575 pounds. The iron fell, injuring the plaintiff. The plaintiff had handled scrap iron and steel rails, and was familiar with the work. The court correctly said that, if the plaintiff did not know, and by the use of ordinary care could not have discovered, the danger before taking hold of the iron, the danger in two men undertaking to lift and load it into the car became apparent when he undertook to raise it, and that there was no liability. In Brown v. Oregon Lumber Co., the right to recover was denied where the plaintiff was injured while loading ties in a car. The ties were piled nine or ten high.