streets in cities by the board of supervisors or city council, under the authority conferred by the act of March 6, 1889, and providing for commissioners, etc., is clearly, we think, a legislative act. A legislative act is said to be one which predetermines what the law shall be for the regulation of future cases falling under its provisions, while a judicial act is a determination of what the law is in relation to some existing thing done or happened. (Mabry v. Baxter, 11 Heisk. 690; Sinking Fund Cases, 99 U. S. 761.)

In the case last cited it was said: Whenever an act undertakes to determine a question of right or obligation, or of property, as the foundation upon which it proceeds, such act is to that extent a judicial one, and not the proper exercise of legislative functions.

"Thus an act of the legislature of Illinois authorizing the sale of the land of an intestate to raise a specific sum to pay certain parties their claims against the estate of the deceased for moneys advanced and liabilities incurred was held unconstitutional, on the ground that it involved a judicial determination that the estate was indebted to those parties for the moneys advanced and liabilities incurred. The ascertainment of indebtedness from one party to another, and a direction for its payment, the court considered to be judicial acts, which could not be performed by the legislature." (3 Scam. 238.)

Whenever an act determines a question of right or obli gation or of property as the foundation upon which it proceeds, such an act is to that extent judicial.

The order in question went beyond the legislative function of declaring a street an open and public one. It purported to and condemned, appropriated, acquired, set apart, and took for public use all the land within the exterior boundaries of the street, except that already held by the city.

To condemn land is to set it apart or appropriate it for public use. To appropriate is to make a is to make a thing one's own, to make it the subject of property, to exercise do

minion over an object to the extent and for the purpose of making it subserve one's own proper use or pleasure. To acquire is, in the law of contracts and descents, to become the owner of property; to make property one's own.

"To take signifies to lay hold of, and when applied to land implies to gain or receive into possession; to seize; to deprive one of the possession; to assume ownership. Thus it is a constitutional provision that a man's property shall not be taken for public uses without just compensation." (Black's Law Dictionary, tit. Take.)

The terms used in this order are the usual and apt ones made use of in proceedings in the courts for the final condemnation of land under the exercise of the power of eminent domain. They are not the usual expressions made use of in the exercise of legislative power; the jurisdiction of the board conceded, and the terms used, were sufficient to divest the title of the petitioner and vest it in the public, to appropriate the property to a public use. It was the exercise of judicial power. It will not do to say that the board of supervisors had no such power, and therefore we must presume that in the order they merely intended their action as preliminary to proceedings to condemn, should they become neces

sary.

The order in question speaks in no uncertain terms. It uses language capable of only one interpretation, and that as showing an intent to condemn the land indicated in presenti.

The order included not only a legislative expression of the will of the board adopting it that a street should be opened, but in addition thereto sought to perform the judicial act of taking the land of citizens, rendered necessary under the legislation involved in the order. To the extent which it sought to accomplish this last object it was judicial.

As to the action of the board, so far as judicial, being in excess of its jurisdiction, we entertain no doubt.

It is true that boards of supervisors, city councils,

and like local boards and commissions are not within the inhibition of section 1 of article III of our state constitution, and may be invested with powers belonging to either or all of the three departments of our government. (People v. Supervisors, 8 Cal. 60; People v. Provines, 34 Cal. 532; Kimball v. Supervisors, 46 Cal. 19.) The objection to that portion of the order is not simply that it seeks to exercise judicial power, but that it involves an exercise of such power not conferred by any statute, and in a manner which no statute can authorize. When land within a street is "condemned, appropriated, acquired, set apart, and taken for public use," it would seem that the last act in the series essential to vest in the public a right to its use as a thoroughfare is accomplished.

It is evidence not of an intention to take and condemn the land in the future as provided in the statute we have referred to, but of a present condemnation, segregation, and dedication to the use of the public.

It follows from these views that the court below erred in holding that the Order No. 2319 was and is not a judicial act, and the judgment of the court below is reversed, and the cause remanded.

BEATTY, C. J.-I concur in the judgment.
Rehearing denied.

[No. 14246. In Bank.-January 3, 1894.]

P. J. G. KENNA, ADMINISTRATOR, ETC., APpellant, v. THE CENTRAL PACIFIC RAILROAD COMPANY, RESPONDENT.

NEGLIGENCE-ACTION FOR DEATH-CONTRIBUTORY NEGLIGENCE-NONSUIT. -A nonsuit is properly granted on account of contributory negligence in an action by an administrator against a railroad company for the alleged negligent killing of a deceased person, where it appeared from the evidence on the part of the plaintiff that the deceased was employed by the company as a plumber, in fitting and connecting pipes alongside the tracks for the purpose of a signal tower, and, while engaged in this work, started to walk long one of the tracks, and walked about Afteen

feet after a train came within the range of view; that he did not turn around or look to see if the train was coming; that there was a space of ten feet by the side of the track over which he could have walked instead of walking upon the track, and that he could have got out of the way by taking a single step into this space. ID.--EXCUSE OF APPARENT NEGLIGENCE OF DECEASED-BURDEN OF PROOF. -If there were any circumstances which would excuse the apparent negligence of the deceased in walking upon the track without taking any precaution to avoid danger, it was incumbent upon the plaintiff to establish them at the trial. ID.-DUTY OF WORKMAN IN PLACE OF DANGER-One who is working in a place where he is exposed to danger must exercise his faculties for his own protection, and if he fail to do so, he is not entitled to damages for personal injuries received. ID.-WALKING UPON RAILROAD TRACK.-Walking upon the line of a railroad where trains are at any time liable to pass, without looking to see whether a train is approaching, is negligence per se which will preclude a recovery for injuries received. ID-NEGLIGENCE, WHEN A QUESTION OF LAW-NONSUIT.-Where the facts in an action for damages for negligence are undisputed, and the plaintiff's negligence clearly appears therefrom, or when the uncontradicted evidence on the part of the plaintiff is such that the only reasonable construction that can be drawn therefrom is that the injured person did not exercise such care as men of ordinary prudence usually exercise in positions of like exposure and danger, the issue of negligence is a question of law to be determined by the court, and it is its duty to grant a nonsuit.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial.

The facts are stated in the opinion of the court.

Frank Sullivan, for Appellant.

Frank Shay, for Respondent.

HARRISON, J.-Action to recover damages for causing the death of Patrick Fallon, the plaintiff's intestate. At the close of the plaintiff's testimony the court granted a nonsuit. The plaintiff moved for a new trial; and from the order denying the same, as well as the judgment, he has appealed.

In January, 1885, the defendant was engaged in erecting a tower on the Oakland mole, and constructing a signal system to be connected therewith. The plaintiff's

intestate was employed by the defendant as a plumber, for fitting and connecting pipes to be laid in the tower and alongside its tracks. This tower was about four hundred feet from the end of the mole, and a few feet to the south of the Alameda track. There were two tracks for the Alameda trains, and to the north of them were the tracks of the Oakland trains. Between these tracks, and about one hundred feet to the east of the tower, there was an open space in which was placed the plumber's bench. On the 10th of January Fallon started to go from the tower to this bench for the purpose of cutting a piece of pipe, and while walking upon the end of the ties on the outer or southern most track, at a point about seventy-five feet east of the tower, was struck in the back by the locomotive of the Alameda train, and instantly killed. Directly to the south from this place, and ten feet away, was a pile of ties, against which he was thrown, and between this pile and the ends of the ties on which he was walking was an open space or depression in the ground, slightly uneven, and a little lower than the level of the track. The track at this place is laid upon a curve, and the tower aforesaid prevented a clear view of it to the end of the mole; but from the point at which the deceased was walking at the time he was struck, it could be seen for a distance of about one hundred and fifty feet. Four trains of cars passed over this track every hour; that is, one Alameda train in each direction at intervals of a half-hour, and, in addition to these, the daily San Jose and Livermore trains. It appears from the evidence that the bell upon the locomotive which struck the deceased was not rung, nor was its whistle sounded. There is some uncertainty as to the speed at which it was moving; for, although plaintiff's witness testified that it was going at the rate of twenty miles an hour, the weight and accuracy of his testimony is somewhat impaired by his further testimony that when the train was opposite the tower the deceased was sixty feet away, and that he had wanted fifteen feet before he was struck by the locomotive.