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validity of the note, under the terms of the STILES, J. The appellant is a corporation agreement, having been thus fully estab- which operates lines of street railway in lished, it was no doubt the intent that the the city of Seattle. One of its lines is opentire transaction should be thereafter evi- erated by cable, along James street to Broad. denced by the note, and the rights and obli- way, where passengers are transferred, withgations of the parties dependent thereon. out additional fare, to a line of electric cars The note having been given under these cir- running to the Walla Walla addition. The cumstances, if there had been no delivery of two lines are not run so as to make close the goods there could have been no recovery connection, but when a cable car is coming by the defendant on the note, and the plain- up to the Broadway junction, and an electiffs, on account of its invalidity, would not tric car is leaving for Walla Walla, the cushave been in any way injured by having tom is for the cable conductor, if he has pasgiven it, and for that reason could maintain sengers for the Walla Walla line, to signal no action for the value of the goods not de- by the ringing of a bell, and if the electric livered. And, since these circumstances car has not gone beyond Bailey street, which would prevent a recovery for failure to de- is one block from the junction, it stops and liver all of the goods, they would also pre- waits for the cable passengers to catch up vent a recovery for failure to deliver a part. with it. The respondent, a woman of 21 Judgment will be reversed, and the cause re- years, lived on the line to Walla Walla, had manded for a new trial.

ridden over both lines a great many times,

and was accustomed to the method of transfer DUNBAR, C. J., and STILES and SCOTT, stated above, when on the 5th day of FebruJJ., concur.

ary, 1893, she, with her father, took a cable car "down town" for her home. As the car she

was riding in neared Broadway, an electric (10 Wash. 507)

car was seen leaving the junction for Walla CAMERON v. UNION TRUNK LINE. Walla, and the usual signal was given to (Supreme Court of Washington. Jan. 8, 1895.)

stop it.

The signal was heard, and the car ACTION FOR PERSONAL INJURIES LIABILITY OF

stopped at a point 150 or 200 feet away from STREET-CAR COMPANY-BACKING CAR-NECESSI- the junction. At this time snow had been TY OF LOOKOUT-CONTRIBUTORY NEGLIGENCE. falling to a considerable depth, so that, to

1. A charge that contributory negligence, operate its cars, the appellant had been comto avail defendant as a defense, must be established by a preponderance of the evidence, is

pelled to bank up the snow on either side of cured by a subsequent charge that, "if you find

its track, from time to time, until the track from a preponderance of the whole evidence represented a channel cut through banks of that the plaintiff was guilty of contributory neg. snow four or five feet in height. These ligence, you must find for defendant." 2. In an action for personal injuries caused

banks were just far enough apart to permit by an electric street car, which was suddenly of the passage of the cars, and of course any backed up on a track on which plaintiff was one attempting to reach a car at the point walking, while making a transfer to the car, it was not error to charge that it was defend

where the one in question was stopped must ant's duty to have an employé on the lookout

pass between the snow walls. As soon as at the rear end of the car while it was moving they alighted, the passengers from the cabackwards.

ble car started to overtake the electric car, 3. While plaintiff was walking up the track to overtake an electric car waiting for

and some of them reached it before it moved, passengers (including plaintiff) transferred from and climbed aboard. Respondent, followed a cable line, the car was suddenly backed up, closely by her father, had almost reached the and, there beirg no one on the rear end on the

car, when it was started backward towards lookout, plaintiff was run down. It was the custom of the electric car to wait for such

her, which frightened her, and she turned to transferred passengers at any place within a escape. But, encountering her father, she eiblock from the junction with the cable line,

ther fell, or he threw her, to one side, so but not to back up to the junction for such pasHeld, that in walking up the track

that, the car coming upon her at that moplaintiff was not, as a matter of law, guilty of ment, she was caught between it and the contributory negligence, although she neither snow bank, and held there until the car had looked nor listened, and though she heard the

nearly passed her. She suffered no outward signal to back the car.

4. A charge permitting a recovery for such physical injury beyond a slight bruise, but pain as plaintiff "will be likely to endure" is she complains that the shock consequent upcured by a charge limiting the recovery to such

on her fright has shattered her nervous sysimpairment of health as has resulted, and will naturally result, from the injuries sustained.

tem, and rendered her unfit for her employ

ment, which was that of a teacher of music. Appeal from superior court, King county;

The electric car was one having two comR. Osborn, Judge.

partments for passengers,—the forward one Action by June R. Cameron against the

closed, and the rear one open. The motorUnion Trunk Line to recover for personal

man's station was in front of the closed end injury. From a judgment for plaintiff, de

of the car; that of the conductor, when not fendant appeals. Affirmed.

otherwise employed, at the rear of the open Thompson, Edsen & Humphries, for appel- end. It was towards the open end that the lant. Stratton, Lewis & Gilman and A. D. passengers from the cable car approached. Warner, for respondent.

It seems that there was some understanding

sengers.

between the conductors on the two cars that, because of the snow, the electric car would be backed up to the junction from the place where it stopped, and the conductor of the cable car says that he called to his passengers not to hurry, and that the electric car would back up to the junction for them. But the evidence on the other side is that his announcement was not heard. On the electric car some confusion occurred. The conductor rang one bell for the car to stop, and it stopped. Then he rang three bells, which was the signal to back from a standstill, but the motorman understood it to mean “Go ahead," and he started the car ahead a few feet. Then came another signal to stop, which was obeyed. The conductor then went to the front end of the car, and spoke to the motorman, directing him to back up, which he did at once, probably getting the car under good speed before the conductor had time to reach his place at the rear of the car. There is the usual confusion in the evidence about these bells. Some witnesses heard them,some in one way, and some in another. The respondent did not hear them at all, and even the appellant's employés disagree as to how they rang, and what bells were used, there being a gong bell and a set of electric bells. Bells or no bells, however, we think it clear that the accident would not have happened if the car had not been started backward before the conductor could reach a place on the car where he could see whether there was danger of running into the respondent. The whole transaction undoubtedly occurred in a very short space of time, for, at the most, it could have taken respondent scarcely a minute to walk from one car to the other.

The court gave 28 instructions to the jury, covering 16 typewritten pages, about half of them at the request of the plaintiff, and half at the request of defendant. There was not a very close application of those given for the plaintiff to the issues as presented by the evidence, but the objectionable features were all covered by the requests of the defendant, which were given last and at greater length. For example, the seventh charge was that contributory negligence was a defense, and, to avail the defendant as such, it must be established by a preponderance of the evidence. Appellant says that the language used left the jury to suppose that it must furnish the evidence of contribution, and that, unless it was found to have done so, this defense was not to be considered. Of course, it is the rule that if the case, whether as presented by one side or the other, shows contribution, the defense is established, and is available. But the twelfth charge was: “If you find from a preponderance of the whole evidence that the plaintiff was guilty of negligence which contributed to her injury, then your verdict must be for the defendant;" and no less than four or five of the succeeding charges given at request of the appellant were devoted to an elaboration of this proposition as ap

1.39P.no.1-9

plied to the evidence in the case. The vice of the charge, if any, was rather in giving the same thing over and over again, in varied forms, at the request of both parties, to the almost certain danger of confusing the jury. It is next to impossible, in the case of a charge of this kind, to pick out a paragraph and pronounce it reversible error, since in so many other paragraphs the error may be said to have been cured. On the whole, we cannot say that a jury of fairly intelligent men would be likely to mistake the real issues to be submitted to them in this case.

When the court told the jury that it was the duty of the appellant to have an employé at the end of its car, it committed no error, under the circumstances.

The regular progress of this car was forward, not backward; and in the streets of a city there is even greater danger of accident from a car moving backward than forward, since the public are accustomed to avoid cars moving ahead in the ordinary way, but do not expect them to be reversed. Undoubtedly, the negli. gence of the appellant lay in the fact that the motorman, without waiting for the conductor to return to the rear of the car, which was suddenly converted into the front, started the car back, at its ordinary speed; and, no one being there to give warning or stop the car, the respondent was taken by surprise, and run down, before she had time to consider any means of escape. Considering the fact that the jury had before it competent evidence of the almost universal method of transferring passengers at this point, we think it no error to hold it to be the duty of the carrier to maintain a lookout when, upon an exceptional occasion, it proposed to back up its car, with knowledge that there were passengers to be transferred, and who were likely to proceed towards the electric car in the usual way. For substantially the same reasons, we cannot say that respondent's act in walking towards the car, even without looking or listening, was negligence on her part, which should deprive her of a recovery. The question of the superior rights of street cars in the streets has no place here, because the method of transfer in vogue was a license to the respondent to rely upon the belief that the car would remain where it stopped until she could catch up with it; and, even if she had heard the bells which signaled for a backward movement of the car, she still would have had the right to expect that the change in direction would be accomplished with due care, some one being on the lookout that nobody was run over. Under the circumstances, it was no more negligence on respondent's part for her to walk along the track towards the car than it is for an intending passenger upon any railroad car to cross an intervening track, that being the usual method of approach.

We find no legal reason for interfering with the verdict on account of the character of the injury or the amount of the verdict. Com

plaint is made that the court permitted a re- city of Whatcom. Her claim is based on the covery for such pain and suffering of body, fact that her husband purchased this propif any, as the jury might believe she had en- erty and received a deed to it during their dured, “and will be likely to endure." Dam- coverture; that her husband is dead, and ages for future suffering must be confined to that she is the only heir; that he left no such as the evidence renders it reasonably issue,-that is, at the time he died he had no certain will result from the injury. Curtis children living, and also at the time of his v. Railroad Co., 18 N. Y. 534; Fry v. Railroad death he had no parents living; and in the Co., 45 Iowa, 416. Immediately following the amended complaint alleges that there are no objectionable clause, and as an enlargement debts due from the deceased or his estate, of it, the jury was told that it might allow and asks for the possession of the property. "such sum as would compensate her for the The answer of the defendants is a denial that impairment of her health for such time as you Mrs. McInerney is the owner of the land, may believe, from the evidence, it has been or that she is the only heir of John McInerand will be impaired by reason of her in- ney; and sets up title in the name of Mary juries, and in such sum as will compensate Beck, claiming that the said Mary Beck has the plaintiff for such physical injury received been in open, adverse, and notorious possesby the plaintiff, and the ordinary and natural sion of said property, she and her grantors, result as a consequence of the same." We for more than 20 years prior to the commencethink the jury could not be misled under the ment of the action. The answer admits that qualification given. The seventh and elev- John McInerney was the owner at one time enth charges requested by appellant were of this property; that he held the same ungiven in substance in other charges requested der a deed; but claims that any right or inby it, so far as they were applicable to the terest that he might have had in this propevidence.

erty has been barred by the statute of limitaFinding no uncured error, the judgment is tions. Outside of the adverse possession, deaffirmed.

fendants claim through a tax deed to one

Abner Dunn, from the administrator of the DUNBAR, C. J., and SCOTT and HOYT,

estate of Dunn to one Pierson, from PierJJ., concur.

son to Whatcom county, and from Whatcom

county to the respondents. On these issues (10 Wash. 515)

the case went to trial, and the jury found McINERNEY v. BECK et al.1

that the appellant at no time had been, and

was not, entitled to the possession of the (Supreme Court of Washington. Jan. 8, 1895.)

land in dispute. Judgment was rendered in QUITCLAIM Deep-Title CONVEYED – DEED TO A

accordance with the verdict, and the case DECEDENT'S Estate -- ADVERSE Poss ESSION GENERAL UNDERSTANDING - EJECTMENT-RIGAT

was brought here on appeal. OF DEFENDANT TO RECover Taxes Paid.

We do not comprehend how this verdict 1. A quitclaim deed conveys whatever title could have been reached under the testimony the grantor had in the land.

in this case. 2. A deed to "Abner Dunn Deceased Es

The plaintiff proved a straight tate" is void for want of a grantee.

title from the United States to Russell V. 3. Evidence that there was a general un- Peabody, from Russell V. Peabody to John derstanding in the community that land was the E. Peabody, and a power of attorney from property of a certain person is not sufficient to support a title by adverse possession.

John E. Peabody to Russell V. Peabody, a 4. Where, in ejectment, judgment is ren- deed from John E. Peabody to A. M. Poe, dered for plaintiff, and it is shown that the im- and a deed from A. M. Poe to John McInerprovements placed by defendant on the land are

ney. Some objection was made by the reequal to its rental value while defendant was in possession, defendant is entitled to recover from spondents to the introduction of the deed plaintiff all taxes paid by him, and to have the from Poe because it was a quitclaim deed. amount thereof charged on the land.

This objection is not at all tenable. A quit Appeal from superior court, Whatcom coun- laim deed is as good as any other deed if ty; John R. Winn, Judge.

the grantor had the title to convey, and, if he Action by Elizabeth McInerney against did not have the title to convey, as between Jacob Beck and Mary Beck. From a ver- other claimants, the warranty would not dict for defendant, and judgment thereon, amount to anything. There is no question plaintiff appeals. Reversed.

but that proof was absolutely convincing that

the appellant was the wife of McInerney, Bruce, Brown & Cleveland, for appellant. J. J. Weisenberger and J. R. Crites, for re

and that McInerney was dead, and that there

were no other heirs of McInerney living. spondents.

Nor do we see anything inconsistent in the DUNBAR, C. J. This was an action in

statements made by Mrs. McInerney in the proof of her title.

It is true that it is only ejectment, brought by the appellant, Eliza

the testimony of one witness, but it is beth McInerney, against the respondents,

straightforward, consistent, and absolutely Jacob Beck and Mary Beck, claiming that the

undisputed, and a jury would have no right appellant is the owner of and entitled to a

to disregard it. The only questions left, then, certain lot or parcel of ground situated in the

for the determination of the jury were two, 1 Rehearing pending.

the first of which is whether the tax deed ander which respondents claim was sufficient as a set-off against damages for detention, to convey title. We think that, under the and that such damages can only be recovruling of this court in Hurd v. Brisner, 3 ered for withholding the property for the Wash. 1, 28 Pac. 371, the deed was absolutely term of six years next preceding the comvoid. But, in addition to this objection, there mencement of the action, This restriction, was no grantee to this deed. The deed ran however, does not apply to taxes or streetto "Abner Dunn Deceased Estate." The grade assessments. We are fully convinced deed should have been made to the executor from the record that the improvements placed or administrator, as the case might be, of the upon the land are at least equal to the rental estate of Abner Dunn, deceased. The execu. value of the same, but, as the case was detor or administrator is the legal representa- cided on the theory that the respondents tive of the deceased, and the estate is some- were entitled to the possession of the land, thing that cannot be recognized at all as a there is no finding on the amount of taxes or party to a contract. We think it is hardly street grade assessments paid by the reworth while to pursue this question further. spondents since they have been in possession The only remaining question, under the is- of the same. So that, upon the return of this sues in this case, is, had the respondents or case, the court will proceed to investigate and their grantors been in possession of the land determine that question, and the amount so in dispute for 20 years prior to the com- found to have been paid by the respondents, mencement of this action? If they had, and with legal interest from the date of such their possession had been open, notorious, payments, shall be declared to be a lien on and adverse to the interests of the appellant, the land for its payment; and, if the same then she would be barred from prosecuting is not paid within 90 days from the judgthis claim. But there is no evidence in this ment so declaring it to be a lien, in the court case to sustain the verdict upon this hypothe- below, the respondents will be entitled to sell sis. It is not a case of conflict of testimony, the land for the payinent of the same. but upon the affirmative testimony of the defendants the possession was not proven. All HOYT and STILES, JJ., concur. that was proven was a general understanding in the community that the property in dispute was the property of Pierson. There

(10 Wash. 339) was no testimony that he had ever exercised

MEGRATH v. GILMORE et al. any acts of ownership over it whatever. It

(Supreme Court of Washington. Dec. 24, is true that in the early days in the history

1894.) of this country, and especially in that locali- Building Contract — CONSTRUCTION ADOPTION ty, it would not have taken a great deal to BY CONTRACTOR-EVIDENCE-PAYMENT BY have established possession. But there must

Check-QUESTION FOR JURY. be something more than the mere fact that a

1. Where a contractor's bid for the con

struction of a building is accepted, and the person went and looked at a particular piece

terms of the building contract are left to be statof land. This is about all that we can find ed in a writing subsequently entered into by in this record, and it is absolutely insufficient the parties, that writing is the highest evidence to sustain the claim of adverse possession.

of the terms of the building contract.

2. In answer to a complaint for a balance For this reason the judgment must be re- due for constructing a building under an exversed, and the cause remanded, with in- press contract, defendants set up a written instructions to grant the prayer of the com

strument, which they alleged constituted the

contract. Plaintiff denied such instrument, as plaint; with this modification, however: It

not being signed by all the parties, and testified appears from this record that these respond- that the contract consisted of his bid for the job ents bought this land in good faith, went on and defendants' acceptance of it. The evi

dence was that plaintiff submitted to the control it, made a bona fide residence, and in good

of the architect named in the writing, and refaith made valuable improvements to the ex- ceived from him several certificates of sums tent of several thousand dollars; that the due for work done, as the writing provided; that property has been thereby benefited; that

the writing was referred to in those certificates,

and that they called for 90 per cent. of the conthey have paid quite a large sum in taxes and

tract price of the job,--that being the percent. for the improvement of streets. And we do age mentioned in the writing to be paid as the not think it would be equitable to allow the

work progressed; that every payment made to appellant to stand back, and not assert her

plaintiff was by check payable jointly to him

and his surety na ned in the writing; that he claim, while all these improvements were be- accepted the appraisement of the architect made ing made for her benefit, and now demand thereunder for extra work; that he objected to possession of the land, with its value thus

paying certain charges upon the sole ground that

he was not liable therefor under the writing; enhanced, without recompensing the respond

and that when a disjute arose in the final settleents in this particular. And, in the absence ment he did not deny that the writing constiof a statute, we should be inclined to allow tuted the contract, but proposed arbitration as

therein provided. Held, that a verdict based on the defendants the value of the improve

the assumption that the terms of the building ments over and above the rental value during contract consisted of nothing but plaintiff's bid the time of the detention of the land as a and defendants' acceptance was against the counterclaim, but section 534 of the Code of

weight of the evidence.

3. The defendants in an action on a build. Procedure seems to indicate that the value

ing contract alleged that they gave plaintiff a of the improvements shall only be allowed check in full payment of all claim under the contract, and a statement to that effect appear- whether Kirkman's name should be append. ed on the face of the check. Plaintiff denied

ed, but for some reason it was omitted. Oue that he so accepted the check, and testified that the defendant who gave it to him told him that

side of this case maintains that his signature he would receive a further payment; that the was never waived; while the other asserts supervising architect advised plaintiff to accept that it was then and there agreed, upon the the check, saying that defendant would pay him in full afterwards; and the architect corrob

suggestion of the architect, that it was not orated the latter testimony. Held, that the

necessary that Kirkman should sign, because question whether the check was given and ac- Gilmore had full authority from him to act cepted as full satisfaction of all claim under the

for them both in all matters pertaining to contract was for the jury. 4. Where the building contract declared on

the proposed building. Respondent took one provided that claim for extra work should be of the copies, and the architect retained the submitted to the supervising architect for de- other for Gilmore. Collins was merely a cision, and the evidence clearly showed that such claim was submitted to the architect, and

surety for respondent, as it is now made to his award accepted by both parties, --it was er- appear. This writing contained the usual ror to submit the question of the value of said articles found in such agreements, 12 in extra work to the jury.

number, each set wurth with much detail. 5. In an action on a building contract, which provided that the contractor should keep

The date for the completion of the building the building insured, it was error to submit to was fixed at October 10, 1889, for the lower the jury the question whether the contractor portion, and at November 10th for the upper was liable for the insurance premiums.

portion, with a provision for demurrage at Appeal from superior court, King county; the rate of $25 per day for each uncompleted T. J. Humes, Judge.

portion beyond the dates named. ProviAction by John Megrath against David Gil- sions were made that the architect should be more and others. From a judgment for the sole arbiter of certain described matters plaintiff, defendants appeal. Reversed. should they come into dispute, and, in case Burke, Shepard & Woods, for appellants.

of any other dispute, it should be settled by Stratton, Lewis & Gilman and Carr & Pres

another method of arbitration, provided for. ton, for respondent.

Extra work was to be settled for as deter

mined by the architect, if satisfactory to STILES, J. David Gilmore and William both parties, but otherwise by the second H. Kirkman, in 1889, caused plans and speci- method of arbitration. The contractor was fications to be prepared for a building to be required to procure a builder's insurance erected on their joint property in the city policy for the benefit of Gilmore and Kirkof Seattle, and thereupon invited bids from man, as security for such money as they contractors for the erection of the building. might advance. Payments were to be made Two bids were received,-one, that of re- every two weeks after the commencement of spondent, for $98,000, and another, that of a work, to the extent of 90 per cent. of the third party, for $96,810. Gilmore and Kirk- work performed, upon architect's certificates; man desired to favor respondent, and pro- final payment within 90 days after compleposed that they would accept his bid, but tion. The time of completion was not to be that, as they did not wish to appear to re- extended by reason of extra work ordered. flect on the lower bidder in any way, they The contract price was stated to be $96,000. would make their principal contract for the Work on the building was at once building, which was to be in writing, at menced, and proceeded with to completion, $96,000, and give respondent a separate obli- but not within the times mentioned above, gation for $2,000. Thus far the transaction so that there arose a question as to demuroccurred between Gilmore and respondent rage. Extra work to the amount of several only, Kirkman residing in Walla Walla, and thousand dollars was done, and a small not being present. Gilmore had full au- amount of work was omitted. Gilmore and thority from Kirkman to make any contract Kirkman themselves procured and paid for he saw fit. Within a day or two after the the insurance. Upon an attempt at a settleagreement as to the bid, the architect who ment a serious dispute arose. Ninety-eight had prepared the plans and specifications thousand dollars was conceded to have been filled up one of his blank contracts, in dupli- the real contract price, and of this sum $86,cate, with the names of respondent and John 400 had been paid, leaving a balance of $11,Collins, as parties of the first part, and Gil- 600. The respondent claimed $6,653 for exmore and Kirkman, parties of the second tras, and demanded this sum in addition to part, and otherwise prepared it for signing. the balance of the contract price, but reRespondent and Gilmore met at the archi- fused to allow anything for demurrage, tect's office to sign the contract, which was insurance, or uncompleted work. The archidated March 8, 1891, on that day, whereupon tect estimated the extras at only $4,497.21; respondent stated that one Redward was and the owners claimed for demurrage $6,to join him in the contract, and his name was 050, insurance $429.07, uncompleted work inserted as a party of the first part. Re- $257.50. At Gilmore's suggestion, the extras spondent, Collins, and Gilmore signed both were raised to $5,000; but he refused to setcopies of the instrument, but Redward re- tle except upon the terms of the contract, fused to sign, and nothing further was said which he claimed justified the other de about him. Some question was made as to mands made by him. Out of this contention

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