154 PACIFIC REPORTER

526, 87 Pac. 818; State ex rel. Puyallup v. Superior Court, 50 Wash. 650, 97 Pac. 778. Having held that a review may not be had directly, it will follow as of course that neither the discretion of the council nor the guilt or innocence of the appellant can be tried out in a collateral proceeding.

[2] This court has also held, and its holding seems to be in line with the decisions of other courts, that, in the absence of a statute or ordinance compelling it to do so, a city is not liable, at the suit of the licensee, for the return of the money paid for a liquor license where it has been revoked or forfeit ed for any cause which, to the council, seems sufficient. Krueger v. Colville, 49 Wash. 295, 95 Pac. 81.

The law is such that appellant cannot now be heard to claim, as he attempts to in this case, that the crime, if any, was induced by the agents of the city; that he was not guil ty; that he pleaded guilty on the advice of counsel that the police justice would probably hold with the city, and it would be cheaper for him to do so than to stand upon his plea of not guilty; and that he has, at all times, obeyed the laws of the state and the ordinances of the city.

There was a time for appellant to try these questions. If convicted before the justice, he might have appealed to the superior court. He has made his own record and is bound by it. Affirmed.

(Wash.

lants. E. E. Wager, of Ellensburg, and HarO. O. Felkner, of Ellensburg, for appelry L. Brown, of Roslyn, for respondent.

rese is the owner of a tract of land situate CHADWICK, J. Appellant Minna DomAppellant Hamer is her lessee. in a mountain cañon near the city of Roslyn. respondent put in a system of waterworks. It took its supply of water from Cedar In 1909 creek, which flows in the cañon and over the lands of appellant Domrese. The water was taken at through a pipe line over and across her land. a point above and conducted jected to the trespass of the city. At the time the work was in progress she obright of way for the pipe line, and the city some negotiations she executed a deed for a completed its work.

After

sets up her title, alleging that the city has In 1914 this action was begun. Appellant appropriated the waters of the creek, which is riparian to her land, and asks that respondent be enjoined from a further diversion of the water. this relief upon the ground that the waters The court below denied of the stream had not for a period of ten on the ground of equitable estoppel. years been put to any beneficial use and upthink it unnecessary to inquire whether the judgment of the trial judge can be sustained We upon either one of these theories.

Granting, but without deciding, that appellant has a cause of action, the only question with which we are concerned is whether

MORRIS, C. J., and MOUNT, ELLIS, she has a remedy in equity. Respondent and FULLERTON, JJ., concur.

DOMRESE et al. v. CITY OF ROSLYN. (No. 12846.)

(Supreme Court of Washington. Jan. 7, 1916.) ESTOPPEL 93-PERMITTING IMPROVEMENTS -DIVERSION OF WATER-INJUNCTION.

Where a landowner objected when a city having the power of eminent domain, but not exercising same, began the construction of a system of waterworks necessitating the appropriation of water from a stream which flowed over her land and the conducting of a pipe line across her land, but after some negotiations gave a deed for the right of way of the pipe line, after which the city completed its work, she and her lessee were estopped from thereafter enjoining the city from a further diversion of the water; the wrong, if any, being not in the taking of the water, but in the manner of taking.

[Ed. Note. For other cases, Cent. Dig. §§ 284-275; Dec. Dig. 93.1 see Estoppel,

Department 1. Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge.

Action by Minna Domrese and another against the City of Roslyn, a municipal corporation. From judgment for defendant, plaintiffs appeal. Affirmed.

might at the time of its trespass, if it was a trespass, have maintained an eminent domain proceeding. It might have condemned all of the interest of the appellants in the waters of Cedar creek. It did not do so, but did complete its water system, and put the waters of the stream to a public use.

Columbia & Puget Sound R. R. Co., 37 Wash. This court, since the case of Kakeldy v. 675, 80 Pac. 205, was decided, has consistently held that injunction will not lie in such party who acquiesces in the construction and cases. The reasoning of that case is that a operation of a public utility is estopped to maintain ejectment or a suit for injunction, but will be left to his action for damages.

In Kincaid v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820, the deeper principle is adverted to; that is, that the wrong lies, not in the taking, but in the manner of the taking; for the taking, whether done directly or indirectly, is an exercise of a sovereign power. We held squarely that:

without condemnation, injunction is a proper
Where one having a right to condemn prop-
erty
* is about to take possession
the public function is being exercised, the only
remedy: where there has been a taking and
remedy is to take compensation.
can waive the tort and sue on an implied con-
call the taking a tort, or say that the claimant
Whether we
tract, it makes no difference; the law is the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

same.

The constitutional right to compensa- the issue presented by the parties was whether tion cannot be taken away; for the right to defendant ordered plaintiff to crank the autoredress the wrong does not and cannot be made mobile, and there was no contention that he perto depend upon statute law. The remedy is in mitted plaintiff as a mere volunteer to crank the courts having jurisdiction to redress wrongs the machine. under the forms of the common law."

In Thorberg v. Hoquiam, 77 Wash. 679, 138 Pac. 304, an injunction was sought upon a similar state of facts. We said:

"Plaintiffs' only remedy in this case is to recover damages. They cannot enjoin the work. They permitted the city to begin and prosecute the work until near completion, and must now seek their remedy at law."

In Stewart v. Fitzimmons, 149 Pac. 659, we likened the right to claim a homestead to the act of a city taking property for a public use without first resorting to an eminent domain proceeding. We said:

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. 1066.] 3. DAMAGES 26-PERSONAL INJURIES-FUTURE PAIN AND SUFFERING EVIDENCE. While there can be no recovery for future pain and suffering which will "probably" occur in the future, the recovery in a personal injury case may include damages for future pain and suffering which the evidence shows plaintiff will be subjected to.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 69, 236; Dec. Dig. 26.] 4. TRIAL 252-INSTRUCTIONS-EVIDENCE. from his arm being broken while he was atWhere, in an employé's action for damages tempting to crank defendant's automobile, there "The right of Peter A. Peterson to claim a was no evidence that there was a safe and also homestead being referable to the sovereign pow-unsafe way in which to take hold of the crank er of the state, the case falls within the prin- handle, and, though there was evidence that one ciple announced by this court in holding that way of taking hold of the handle was safer than the state or any of its instrumentalities having another, plaintiff testified that he was not aware power to exercise the right of eminent domain of this fact, and it appeared that he had not would not be ousted as for trespass after taking been instructed thereon, the court properly reproperty and before ascertaining the damages to fused to instruct that an employé cannot recover be paid; this upon the theory that a right to for his injuries where he had chosen an unsafe take is a sovereign right, and that the remedy way to perform an act, where there is a safe in damages was open to the aggrieved party way which a reasonably prudent person would under the forms, modes, and usages of the com- take. mon law. Kincaid v. Seattle, 74 Wash. 617, 134 Pac. 504, 135 Pac. 820; Casassa v. Seattle, 75 Wash. 367, 134 Pac. 1080."

JURY-EVIDence.

Where, in an employe's action for damages from his arm being broken while he was attempting to crank defendant's automobile, there was evidence that plaintiff was unfamiliar with the management of an automobile and the method of safely starting the engine, and that defendant knew advancement of the spark lever when the machine was being cranked would cause the engine to back-fire, and yet advanced the lever so as to cause the engine to kick back when he knew plaintiff was turning the crank, and in danger, the question of defendant's negligence was for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.]

STRUCTIONS-HARMLESS ERROR.

[Ed. Note. For other cases, see Trial, Cent. Dig. $$ 505, 596-612: Dec. Dig. 252.] 5. APPEAL AND ERROR 1070 EXCESSIVE VERDICT-CURE OF ERROR.

Error in returning a verdict for $100 for an item as to which the instructions limited the recovery to $40 was cured where the verdict was reduced more than $100.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. 1070.]

6. TRIAL 133 - OPENING STATEMENT OF
COUNSEL-CURE OF ERROR-INSTRUCTIONS.
A statement in the opening statement of
counsel for plaintiff that shortly after the acci-
dent defendant discharged plaintiff from his
employ and refused to pay his doctor's bill was
not prejudicial, where, on objection made, the
court told the jury that they should not con-
sider such statements unless they were support-
ed by evidence.

Where an employé suffered a broken arm, and his expenses connected therewith were about $10, a recovery of $400 was not excessive. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. 131.j

Department 1. Appeal from Superior Court, King County; Everett Smith, Judge.

Action by Walter A. Godley against Elwin T. Gowen. From judgment for plaintiff, defendant appeals. Affirmed.

Jas. A. Dougan, of Seattle, for appellant. Walter S. Fulton, of Seattle, for respondent.

MOUNT, J. The plaintiff had his arm broken while attempting to crank an automobile. He sued the defendant for damages,

In an employé's action for damages from his arm being broken while attempting to crank defendant's automobile, an instruction that, if an employé is ordered or permitted to do dangerous work, the employer should sufficiently instruct him, if he is disqualified, that he may understand the dangers, if erroneous in the use alleging negligence in two respects: First, of the word "permitted," was harmless, where that the plaintiff was employed by the de

fendant as a clerk in a grocery store, that [2] In the instructions to the jury the
he was not familiar with automobiles, that court, in substance, told the jury that, when
on the day of his injury the defendant or- an employé is ordered or permitted by one
dered him to crank the automobile without having authority over him to do a temporary
informing him of the danger thereof, and work beyond the work which he had engaged
that, while the plaintiff was turning the to do, and the one in authority knows, or
crank to start the engine, the defendant, ought to know from all the circumstances
without notifying the plaintiff, advanced the in the case, that such work is dangerous, it
spark lever, which caused the engine to kick is the duty of the employer to caution and
back and break the plaintiff's arm; second, instruct a disqualified employé sufficiently to
that the plaintiff did not know that there was enable him to understand the dangers he will
any danger of the engine back-firing, or kick- encounter. Another instruction was also giv-
ing back, and that the defendant failed to en along the same lines. It is argued by the
warn the plaintiff of the danger, and failed appellant that the court erred in using the
to instruct him how to take hold of the han- words if the "defendant ordered or permitted
dle of the crank. These allegations of negli- the plaintiff to attempt to set the engine of
gence were denied by the defendant; and he the automobile of defendant in motion," be-
alleged that the injury was caused by the cause the use of the word "permitted" was
plaintiff's own neglect, that the defendant confusing to the jury. It may be that the
ordered the plaintiff not to go about the auto-use of the word "permitted," taken from its
mobile, but that the plaintiff voluntarily, in connection with the facts of the case, was
violation of orders, and without the knowl- not apt; but it is plain from a reading of
edge of the defendant, attempted to crank the instructions in connection with the facts
the automobile, and was injured.
that the court meant to tell the jury that,
if the defendant ordered the plaintiff to set
the engine in motion, then it was the duty of
the plaintiff to instruct an ignorant servant
if dangers were attendant thereon. The
plaintiff's case was based upon the allega-
tion that he was ignorant of the dangers
of cranking an automobile; that he was or-
dered by his master to do the work. The de-
fense was based upon the statement that the
defendant had forbidden the plaintiff to use
the automobile, and that he was injured by
disobeying the orders of the defendant; that
he voluntarily, without the knowledge of the
defendant, attempted to crank the automo-
bile, and was thereby injured. There was
no idea of permission, except as it may be in-
ferred from an order by the defendant to the
plaintiff to crank the automobile; and we
think this is what the court meant, and what
the jury understood by the instruction. If
the use of the word "permitted" was error, it
was error without prejudice, because there
was no contention on the part of the defend-
ant that he permitted the plaintiff, as a vol-
unteer, to crank the automobile. The de-
fendant either ordered the plaintiff to crank
it, or the plaintiff cranked it without the
knowledge of the defendant and against his
desires. We are satisfied, therefore, that
these instructions were not erroneous under
the circumstances.

Upon these issues the case was tried to the court and a jury. A verdict was returned in favor of the plaintiff for the sum of $500 damages to his person and $100 expenses. The trial court granted a new trial unless the plaintiff would remit from the verdict the sum of $200. This was done, and a judgment for $400 was entered. This appeal followed. Numerous assignments of error are made in the appellant's brief; but the assignments are discussed under six points, which we shall briefly notice.

[1] It is argued first that the court erred in denying motions for a directed verdict and for judgment non obstante. This is based upon the contention that no negligence on the part of the defendant was shown. It is claimed that the evidence shows that the plaintiff knew as much about cranking the automobile as the defendant did, and that therefore it was not negligence for the defendant to request the plaintiff to crank the automobile. The plaintiff testified that he was unfamiliar with the management of the automobile, and was unfamiliar with the method of safely starting the engine. All the evidence tended to show that, when a person is turning the engine, or cranking an automobile, the advancement of the spark lever at that time will cause the engine to back-fire, or kick back. We think the evidence fairly shows that the defendant knew or should have known this fact. It was clearly negligence, therefore, for the defendant to advance the spark so as to cause the engine to kick back when he knew the plaintiff was turning the engine by the crank, because it was clearly shown that when an engine kicks back, or back-fires, the person holding the crank is placed in imminent danger.

We are satisfied that upon this fact alone the question of negligence was for the jury, and the court therefore did not err in sending the case to the jury.

[3] It is next contended that the court erred in instructing the jury to the effect that in estimating the amount of damages to be allowed to the plaintiff they had a right to take into consideration the pain and suffering which the jury found the plaintiff to have sustained as the result of his injuries, "and any future pain and suffering, if any, that the evidence shows that the plaintiff will be subjected to." It is argued by the appellant that the complaint did not ask for damages for future pain and suffering, and that the plaintiff waived such suffering.

This court has held in a number of cases conduct which would warrant the granting that an instruction is erroneous where the of a new trial. When counsel made this jury are directed that they may find damages statement it was objected to, and the court for future pain and suffering which would told the jury, in substance, that they should probably occur in the future. Bennett v. O.- not consider statements of counsel unless the W. R. & N. Co., 83 Wash. 64, 145 Pac. 62. same were supported by the evidence. We The court in this case did not so instruct the think this was not such misconduct of counjury, but instructed that they might find for sel as would warrant the granting of a new future pain and suffering which the evidence trial. We are also satisfied that the judgshowed that the plaintiff would be subjected ment as finally rendered is not excessive. to. The judgment is therefore affirmed.