Rehearing denied November 25, 1919.
Petition eor Rehearing.
(185 Pac. 231.)
Respondent’s petition for rehearing denied.
Denied.
Messrs. Malarkey, Seabrook & Dibble, for the petition.
Messrs. Teal, Minor & Winfree, contra.
HARRIS, J.In the original opinion we ruled that instruction No. 8 made it necessary to reverse the judgment. The plaintiff eárnestly insists in the petition for a rehearing that—
Instruction No. 8 which was given at the request of plaintiff, “is merely a statement with which everyone will agree, namely, that it was the duty of appellant to operate and navigate its vessel where vessels should he operated and navigated.”
*198The petition for a rehearing contains no new argument, for at the hearing as well as in his printed brief, the plaintiff vigorously contended that instruction No. 8 was devoid of error and the reasons given for that contention were the same as those now assigned by him. However, we have again examined and considered the record with the same result as before. As stated in the original opinion this instruction was not a parenthetical statement, but upon the contrary it stood out as boldly and prominently as any other instruction. When instruction No. 8 is viewed in the light of the allegation that
“although there was at said time and place a fixed channel and course in which vessels navigating said river should be operated, said defendant carelessly and negligently failed to keep and to maintain said tugboat within the'limits of said channel and carelessly and negligently navigated ’ said vessel outside and beyond said fixed course and channel,”
and when this instruction is viewed in the light of the evidence concerning the location of the course usually followed by vessels, it appears manifest to us that the instruction in effect stated to the jurors that it was 'the duty of the defendant to navigate its flotilla in the channel and course usually taken by boats.
Among other instructions, the court gave, at the request of the defendant, instruction No. 29, which reads as follows:
“Vessels navigating the Columbia River are not required to keep in the dredged channel, where there is a dredged channel, nor in the center of the navigable channel. For instance, you may legally and without negligence navigate any part of the navigable channel of said river where the depth of water is sufficient therefor.”
*199The plaintiff now argues, just as he contended in his printed brief, that instruction No. 8 is not prejudicial when considered in connection with instruction No. 29. The answer to this argument is that one instruction is inconsistent with the other. Construing instruction No. 8 as we do, then the inevitable conclusion is that this instruction was prejudicial error. We adhere to the original opinion and the conclusion there reached.
The petition for a rehearing is denied.
Reversed and Remanded. Rehearing Denied.