Apr. 1910]

Opinion Per MOUNT, J.

of the mortgage. exclusive remedy in such cases. It merely declared a rule which was commonly recognized by courts of equity and expressed in mortgages, by which the lienor might protect his lien by the payment of taxes which became a prior lien, and upon foreclosure of the mortgage include therein the payment of such taxes at the same rate of interest as specified in the mortgage. We think the legislature did not intend by this statute to make this remedy exclusive, or to limit the lien for taxes paid in such cases to the time when the lien of the mortgage ceases. There are, no doubt, authorities to the effect that, where a mortgagee pays taxes to protect his lien, his right to collect such payments expires with his mortgage lien. But this court has adopted the rule that the lien for taxes continues until the taxes are paid; (Rem. & Bal. Code, § 9235; Port Townsend v. Eisenbeis, 28 Wash. 533, 68 Pac. 1045; Denman v. Steinbach, 29 Wash. 179, 69 Pac. 751), and where one in good faith in the belief that he has a valid lien pays taxes, he is entitled to be subrogated to the rights of the county to the extent of the taxes paid, with interest thereon at the legal rate. Dunsmuir v. Port Angeles Gas, W., El. L. & P. Co., 30 Wash. 586, 71 Pac. 9. In Packwood v. Briggs, 25 Wash. 530, 65 Pac. 846, the repayment of such taxes was adjudged upon equitable grounds without regard to the statute. We there said, at page 535:

This statute was not intended to fix an

"It follows that, if appellant is entitled to relief on account of the taxes paid, it must be based upon equitable grounds, considered with reference to the relations of the parties to the subject-matter. It must be conceded that appellant paid the taxes in good faith, relying upon what he believed to be his lien as authority for it. It cannot be assumed that the payment was made as that of a mere volunteer, or that he only meddled with something in which he knew he had no interest. The evidence shows that the payment was made in the honest belief that appellant held a valid lien upon the land, and he was only seeking to prevent the paramount lien of the taxes from destroying the value

Opinion Per MOUNT, J.

[58 Wash.

of what he believed to be his own lien against the lands."

and again, on page 538:

“Thus, it is the tendency of courts to see that those who have in good faith advanced the money to pay public taxes are protected. This is equitable and just. No one is injured thereby. The tax lien is paramount, and the payment of the taxes inures to the benefit of both the owner and lien holder. So in this case, the taxes paid by appellant inured to the benefit of respondent as mortgagee. It would be unconscionable that respondent should reap the benefit of such payment without making any compensation therefor."

In numerous cases since Packwood v. Briggs we have held that, where a party in good faith pays taxes in order to protect a lien claimed by him, the lien of such taxes is prior to other liens, and the party paying has been adjudged to recover the amount thereof whether he maintained his claim of lien or not. Several of such cases are cited in the original opinion. The case of Fuhrman v. Power, 43 Wash. 533, 86 Pac. 940, was an action to foreclose a mortgage. It was there held that the right to foreclose the mortgage was barred by the statute of limitations. But it was also held that the plaintiff had a lien for, and should recover, the taxes paid by him upon the property, from the date of the mortgage, which was about ten years.

It will thus be seen that this court, by these decisions, is bound to the equitable doctrine of subrogation in such cases. And this rule is just, for taxes are a lien until paid, and, if not paid by the lien claimant, must be paid to the state by the owner of the land, with interest at the rate of fifteen per cent per annum. Such liens are not like liens which may be barred by time, or where the statute may be tolled to the prejudice of the owner of the land. It is said that, under this rule, no man may safely rely upon the record title of real estate, because someone not the owner may have paid the taxes, and therefore have a lien upon the land without a record of such lien. No such question arises in this case, and, we apprehend, could not be successfully maintained in case of an inno

cent purchaser for value. If the taxes had not been paid by the lien claimants in this case, the land would no doubt have been lost to respondents long ago by delinquent tax foreclosure.

The conclusion reached in the original opinion is a just one, and we are satisfied with the rules there stated.

RUDKIN, C. J., GOSE, CHADWICK, FULLERTON, and CROW, JJ., concur.

DUNBAR, J., took no part.

[No. 8400. En Banc. April 8, 1910.]

ERNEST OLSON, a Minor, by his Guardian etc., Respondent, V. GILL HOME INVESTMENT COMPANY et al.,

in violation of a city ordinance, to needlessly store exposed dynamite, fuse, and caps, not intended for immediate use, upon a shelf in an unlocked toilet on premises frequented by trespassing children, where it was apt to be found and taken, and the defendant is liable for injuries sustained by a boy thirteen years of age, who took the same and was injured in attempting to cause an explosion, the defendant owing in such case the highest degree of care as to trespassing children.

SAME-PROXIMATE CAUSE-INTERVENING ACTS-QUESTION FOR JURY. In such a case, the negligent act of storing the explosives is the proximate cause of the accident, notwithstanding the criminal act of the boys in stealing the dynamite, fuse, and caps, it being for the jury to determine whether the defendant should have anticipated the result.

SAME CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. A boy thirteen years of age who steals dynamite, fuse, and caps, and knows of its explosive qualities, is not, as a matter of law, guilty of contributory negligence precluding a recovery for injuries received, where he caused an explosion in attempting to pry out the cap with a stick, after unsuccessful attempts to fire the cap.

'Reported in 108 Pac. 140.

Opinion Per CROW, J.

[58 Wash. NEW TRIAL-NEWLY DISCOVERED EVIDENCE. A new trial for newly discovered evidence is properly refused where the new evidence merely affected the credibility and weight of the evidence of witnesses who had given conflicting evidence upon a former trial of the action, such previous testimony having been shown on the last trial. DAMAGES PERSONAL INJURIES-EXCESSIVE VERDICT. A verdict for $25,000 for the loss of both hands by a boy thirteen years of age is not excessive.

Appeal from a judgment of the superior court for Pierce county, Shackleford, J., entered March 30, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor through an explosion of dynamite. Affirmed.

Leander T. Turner, Ellis, Fletcher & Evans, and Sandford C. Rose, for appellants.

H. M. Owens and Bates, Peer & Peterson, for respondent.

CROW, J.-This action was commenced by Ernest Olson, a minor, by M. E. Olson, his guardian ad litem, against Gill Home Investment Company, a corporation, and Clark N. Gill, its president and manager, to recover damages for personal injuries. From a judgment in plaintiff's favor, the defendants have appealed.

The appellant Gill Home Investment Company was engaged in selling an addition to the city of Tacoma, and was itself owner of four unfenced lots therein, located at the intersection of two public streets. A small building con

structed for toilet purposes was located on these lots, about one hundred and twenty-five feet from one street and thirtynine feet from the other. A board screen or wall, about six feet high, was in front of the unlocked toilet door. Between the toilet and the nearest street was a small tool house. Some weeks prior to the accident which caused respondent's injuries, the appellant corporation commenced the construction of a cement building, and Clark N. Gill, its president and manager, caused a box and several loose sticks of Her

cules stumping powder (hereinafter called dynamite, a term used by the witnesses), to be removed from the tool house and stored on a shelf in the toilet, doing so to protect workmen who went into the tool house. The shelf was located on plates upon which the rafters rested, about six feet eight inches above the floor and five feet eight inches above the seat of the toilet. The toilet door was left unlocked. A pile of sand, attractive to children but designed for use in mixing concrete, was kept on appellants' lots near the toilet. A public school was about three blocks distant. Several residences, the homes of children, were located in the vicinity. A number of young school boys, including the respondent, were in the habit of playing upon appellants' lots. They occasionally visited and used the toilet, as did other persons, most of whom were appellants' employees. One of the boys, Wesley Depew, nearly fourteen years of age, discovered the box and loose sticks of dynamite and told his twin brother Leslie Depew of such discovery. On a Sunday prior to the accident, Leslie Depew, with two younger boys, went to the toilet and took a loose stick of dynamite which they hid under a stump. Wesley Depew had previously taken some dynamite caps and fuses which he says he found in the toilet. He exploded one of these caps and gave some of them to the respondent, who was then about thirteen years of age. On the day of the accident, Leslie Depew and two other boys, accompanied by respondent, took the dynamite, caps and fuse, to some vacant ground one-fourth of a mile distant, where respondent attached a cap and fuse to the stick of dynamite, and igniting it, unsuccessfully tried to explode it under a large stump. He then attempted to explode it with a lighted paper, but again failing, undertook to remove the cap by prying it from the dynamite with a stick. This produced an unexpected explosion which caused respondent to lose both of his hands.

Appellants have filed admirable briefs, in which numerous assignments of error, involving many interesting points, are