lant's knowledge of the business affairs of the concern and respondents' want of knowledge thereof.

(89 Wash. 522)

BENN v. CHICAGO, M. & ST. P. RY. CO. (No. 12992.) (Supreme Court of Washington. Feb. 7, 1916.) 1. RAILROADS 446-ACTIONS FOR VALUE OF STOCK-QUESTIONS OF LAW OR FACT.

In an action for the value of colts struck by a freight train consisting of 16 cars, fairly light, and going at from 28 to 30 miles an hour, where the evidence showed a reasonable effort or an effort not shown to be unreasonable to stop the train, the court erred in holding as a matter of law that the train could have been stopped within 600 or 650 feet.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1627-1641; Dec. Dig. 446.] 2. RAILROADS 443-ACTIONS FOR VALUE OF STOCK-QUESTIONS OF LAW OR FACT. In an action for the value of colts struck by a train, evidence held insufficient to support trial judge's finding that the trainmen expected the horses to run off the track.

ing track. At one end of this tract of land, which is 200 by about 1,900 feet, there is a county road. At the other end is a fence with a cattle guard. The respondent was the owner of three colts, which wandered from his field and were killed about 3 o'clock in the morning of November 1, 1913, by a freight train belonging to the appellant.

The only question in this case is whether the engineer did all that he could do to stop his train before striking the animals. The station ground is approached on a slight curve. The colts were observed first by the fireman. At that time they were about 200 feet in front of the locomotive. Because of the curve they were not seen by the engineer until the engine had straightened out on the track. When observed by the fireman he immediately called to the engineer, who shut off the steam and set the air. The testimony of the engineer and fireman would indicate that the colts ran about 400 feet before they train consisting of 16 cars, fairly light, and were overtaken. The train was a freight

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. 443.] 3. RAILROADS 425-LIABILITY FOR KILL-going at from 28 to 30 miles an hour. ING STOCK-STATUTORY PROVISIONS.

Rem. & Bal. Code, § 8730, provides that every railroad shall, outside of any corporate city or town, and outside the limits of any side track or switch, construct along the right of way a substantial fence, and at every road crossing a safe crossing must be maintained, and on each side of such crossing and at each end of such side track or switch outside of any incorporated city or town a sufficient cattle guard. Held that, as a company was not required to fence a depot and side track or switch outside an incorporated city or town, a cattle guard at each end of such side track would have served no purpose, and its absence was not the proximate cause of an injury to live stock which went upon the tracks at that point and were killed by a train.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1527-1533; Dec. Dig. 425.]

4. RAILROADS 441-ACTIONS FOR Value of STOCK QUESTIONS OF LAW OR FACT.

A railroad company's failure to comply with the statute as to constructing and maintaining fences and cattle guards merely requires the company when sued for injuries to live stock to meet a prima facie case or presumption of negligence.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1575-1595; Dec. Dig. 441.] Superior Irwin,

Department 1. Appeal from Court, Chehalis County; Mason Judge.

Action by Dave Benn against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

George W. Korte, of Seattle, for appellant. E. S. Avey, of Elma, for respondent.

CHADWICK, J. Appellant maintains a flag station known as Balch in Chehalis county. The place is not incorporated, and is no more than a station house and a loading ground, which accommodates a side or pass

[1] The court below held, as a matter of law, that the engineer should have stopped the train within 600 or 650 feet, and that if he had done so, the stock would not have been injured. A judgment for the value of the colts was entered in favor of the respondent. There was no testimony tending to show within what distance a train, running at the rate mentioned, could have been stopped so as to avoid the injury. While it is possible that a court would be warranted in holding that a train could be stopped within a distance so great that the minds of reasonable men would not differ upon the question, we cannot so hold in this case. Where a fact depends upon the application of some scientific principle or upon the use, or the consequences of the use, of machinery which requires skillful operation or manipulation. courts rarely ever indulge a presumption of law, or compel a conclusion of fact in the absence of positive testimony to sustain it. The only testimony in the case going to this point is that of the engineer. He said, in reply to the question:

"Q. In what distance can you stop with that size train, running at that rate of speed? A. Freight trains-some trains would stop in 500 feet, while 1,500 feet it would take to stop others. The braking power on freight trains is very variable and hard to state; but on a rule 1,000 feet."

But, granting that the stopping of a freight train consisting of a locomotive and 16 cars, going at about 30 miles an hour, is a matter of which the courts and, as is contended by respondent, juries, will take notice and find of their own knowledge, or, in other words, treat as a matter of legal conclusion or inference, we have found at least one case where it appears that a train consisting of a locomotive and two passenger coaches, go

ing at 6 or 8 miles an hour, could be stop-, A. No; but I have helped pick up fellows that off the track. You feel quite sure that you did was. Q. I have heard of bulls butting engines everything that you could do to avert that accident? A. I did."

ped in from 150 to 200 feet; at 35 miles an hour in from 700 to 800 feet. See Anderson v. Chicago, St. P., M. & O. Ry. Co., 87 Wis. 195, 58 N. W. 79, 23 L. R. A. 203.

Counsel relies on Timm v. Northern Pacific Ry. Co., 3 Wash. T. 299, 13 Pac. 415. Here the train consisted of 60 or 70 cars loaded

[3] Respondent suggests in his brief that, notwithstanding the grounds upon which the case was made to rest, appellant is liable under the statute (Rem. & Bal. Code, §§ 8730, 8731), in that Balch station is not an incorporated city or town, and it was therefore the duty of the company to fence its tracks. The statute (section 8730) reads:

ing the control or management of any railroad "Every person, company or corporation havshall, within six months after the passage of this act, outside of any corporate city or town, and outside the limits of any sidetrack or

along the line of said right of way of such perin good repair on each side of said railroad, son, company or corporation operating the same, a substantial fence, and at every point where any roadway or other public highway shall cross said railroad, a safe and sufficient crossing must be built and maintained, and on each side of such crossing and at each end of such sidetrack or switch, outside of any incorporated city or town, a sufficient cattle-guard: Provided, that any person holding land on both sides of said right of way shall have the right to put in gates for his own use at such places as may be convenient."

Although negligence is not to be presum-switch, cause to be constructed and maintained ed and it was not, by any means, clear that the engineer was in fault, the court, after a consideration of the evidence, assumed that the train might have been stopped within the space of 270 yards, which is 810 feet. It is proper to draw conclusions from established or admitted facts, and possibly, in the absence of all testimony, from the physical facts, but courts cannot supply the want of facts by resort to assumptions or hypothesis. In any event, the court did not assume to decide the question by resort to judicial knowledge, and the case can have no bearing where, as in this case, a reasonable effort, or rather an effort that is not shown to be unreasonable, was made to stop the train.

[2] After finding that a train could be stopped within a distance of 650 feet, the trial judge says:

46 # * * The employés of defendant company in charge of the engine evidently expected the horses would run off at the side of the track and did not exercise the proper caution and were negligent in not stopping the train within that distance."

We found nothing in the testimony, and we have read it all, to sustain the finding that the employés of appellant evidently expected the horses would run off on the side of the track. On the contrary, the engineer testifies that he endeavored to stop, and that if he had had another 100 or 150 feet to go he would not have come in contact with the animals at all, that he could think of nothing he had left undone, and that he was mindful of the danger to himself and his fireman in striking the stock.

The only thing we find in the record which could have misled the court is the following:

We have italicized the part relied on. We confess our inability to understand the meaning of the italicized words. They cannot mean that a cattle guard is required at each end of every switch outside of an incorporated city or town, for "such" switch is the switch first mentioned in the act, and it is by express words exempted from the fence features of the law. It follows if a company is not required to fence its depot or side tracks or switch, that a cattle guard at the end of each switch would serve no purpose. Indeed we cannot imagine a condition calling for the application of the words relied on. There being no law compelling the company to fence its side tracks, the conclusion follows that the want of cattle guards was not the proximate cause of the injury.

[4] The statute is unavailing to respondent for another reason. An omission to comply with its terms does no more than to put the company under a rule of evidence; that is, to meet a prima facie case, or a presumption of negligence in the event that stock is killed at a point where the track is not fenced. Granting that respondent made out a prima facie case, we think that appellant overcame it and should prevail.

Reversed and remanded, with directions to dismiss.

"Q. Isn't it a fact that, although you don't aim to hit the stock, sometimes you like to give them a chase down the track? A. Not at that speed; because we might get the benefit of the MORRIS, C. J., and MOUNT, FULLERfun. Q. Have you ever been ditched that way? | TON, and ELLIS, JJ., concur.

[For other cases, see Intoxicating Liquors, Cent. Dig. §§ 467-472; Dec. Dig. 327.] Department 1. Appeal from Superior by either of these agents does not fall withCourt, Pierce County; W. O. Chapman, in the meaning and intent of the law.

Action by H. L. Ketler against M. E. Mur-court said: rey and F. W. Kirsch, partners as Murrey & Kirsch. From a judgment for plaintiff, defendants appeal. Affirmed.

J. W. A. Nichols, of Tacoma, for appellants. J. W. Selden and Gordon & Easterday, all of Tacoma, for respondent.

In Wildermuth v. Cole, 77 Mich. 483, 43 N. W. 889, under a statute as broad as our Relative to right to rescind for fraud, the own, the Supreme Court of Michigan held purchaser of land several hundred miles disthat a sheriff holding intoxicating liquors un- tant in another state, known never to have seen der a writ of attachment did not need a li-it, and to be relying on the vendors' representacense to sell on execution sale; that his act tions in regard to it, had a right to so rely. did not fall within either the letter or the spirit of the statute, which was directed | Dig. 33.]

2. VENDOR AND PURCHASER 33 REPRESENTATIONS-RELIANCE-WARNING, Relative to right to rescind, a purchaser had no less right to rely on the vendors' representations as to the land several hundred miles distant, because warned by an attorney, with whom he consulted on a minor matter, not to make the trade without first examining the land. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 38, 40-43, 66; Dec. Dig. 33.]

Department 2. Appeal from Superior Court, Walla Walla County; Edward C. Mills, Judge.

FALSE On the question whether the appellant was
actually defrauded the evidence leaves no
room for doubt. For the very considerable
values he gave in exchange he actually re-
ceived only the value of the cash payment
made to him by Chambers. The land in the
state of Montana was first sold on execution
shortly after the exchange was made, under
a judgment obtained against Chambers up-
on an obligation he had left unpaid to a
resident of that state, and subsequently upon
the foreclosure of a mortgage outstanding
against the property at the time of the ex-
change. These sales exhausted the property,
leaving no surplus to the holder of the fee.
Nor does the evidence leave any doubt that
Chambers misrepresented the character and
He represented them
could be readily obtained upon them for
as worth $125 per acre, and that a loan
$2,500; that it was high-grade agricultural
any kind of grain, and
land, with a fine soil, capable of producing
was particularly
adapted to the growth of vegetables, the pur-
The sequel proved that all of these repre-
poses for which the appellant desired it.

Action by Francis M. Van Horn against Clarence Chambers and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Reynolds & Bond, of Walla Walla, for ap-value of the lands.
pellant. Sharpstein & Sharpstein, of Walla
Walla, and Merritt, Oswald & Merritt and C.
C. Lantry, all of Spokane, for respondents.

FULLERTON, J. On May 8, 1913, the appellant, Van Horn, was the owner of a certain tract of land situated in Walla Walla

county, in this state, containing some 200

acres. Theretofore he had contracted to

sentations were untrue. No witness valued

sell the land to one C. D. Weaver, under the land at anywhere near the value put some form of deferred payment plan, on which there was at the date named a balance unpaid of $10,500. Van Horn had listed his interests in the property for sale with a real estate broker residing in Spokane. This broker introduced him to the respondent Clarence Chambers, who proposed to exchange for his interests a certain 80-acre tract of land situated near Great Falls, in the state of Montana. After some negotia

upon it by Chambers, and the appellant testified that the best offer for a loan upon it that the land is worthless for growing cereals was $5 per acre. It is practically undisputed or vegetables or for any kind of agriculture, and that it had never been used for such purposes. It was shown also that Chambers misrepresented the amounts of the mortgage upon the property, and that he said nothing concerning liens or the possibilities of liens from unsecured indebtedness.

tions between the parties a written agreement was entered into between them by which Van Horn agreed to convey to Chambers the [1] The principal question is whether the Walla Walla county lands and assign to him appellant acted in making the exchange with his interest in the contract, in consideration that degree of prudence required of him unThe respondent's of a conveyance by Chambers of the lands in der the circumstances. the state of Montana, the payment of $530 counsel argue with much earnestness that in cash, and the assumption by Chambers of he did not, citing and relying upon the case an obligation of $180 due from Van Horn of Washington Central Improvement Co. v. to one A. J. Bolter; the exchange to be con- Newlands, 11 Wash. 212, 39 Pac. 366. But summated as soon as abstracts of title to the that case was rested chiefly upon the ground lands could be furnished and deeds executed. that misrepresentations alleged to have been Deeds were executed and delivered on May made related to matters easily ascertainable 10, 1913, two days after the agreement was by the person claiming to have been deceived, executed, but prior to the time the abstracts that they were representations the truth or were furnished. The deed executed by the falsity of which the injured party could appellant ran to the respondent W. H. Hone-have ascertained by only ordinary diligence, fenger, instead of the respondent Chambers, and that his failure to exercise such diligence who furnished the consideration for the ex- was negligence on his part. In the course of change. Shortly after the execution of the the opinion it was recognized that a different deeds the appellant visited the property in rule obtains where the opportunity to inMontana, and, finding it, as he contended, | vestigate is not at hand, such as where the not in accordance with the representations property is at a distance, or where for any made by Chambers, returned and sought a reason the truth or falsity of the representavoluntary rescission of the contract. This tion is not readily ascertainable. This disbeing denied him, he instituted the present tinction is recognized also in our later cases, action to enforce a rescission. The trial notably in Wooddy v. Benton Water Co., 54 court denied him relief, and from the ad- Wash. 124, 102 Pac. 1054, 132 Am. St. Rep. verse judgment, he appeals.

1102; Stewart v. Larkin, 74 Wash. 681, 134

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

Pac. 186; Becker v. Clark, 83 Wash. 37, 1452. RAILROADS 358-DOUBLE TRACK-RUNPac. 65; and Christensen v. Koch, 85 Wash. NING AGAINST TRAFFIC-LICENSEES. 472, 148 Pac. 585. In each of these cases it is

held that:

A "purchaser may rely upon the representations of a vendor where the property is at a distance, or where for any other reason the falsity of the representations is not readily ascertainable."

The facts of the case at bar bring it within the rule of the later cases rather than the earlier ones. The contract for the exchange of the property was made at Spokane, in this state. The land in Montana was several hun

dred miles distant. It was known that the appellant had never seen it, but was relying upon the statements concerning it made by Chambers. Chambers therefore spoke at his peril. He should have told the truth or re

mained silent.

[2] The respondents also rely much upon the fact that warning was given the appellant not to make the exchange without first examining the land he was to receive. This warning came through an attorney with whom the appellant consulted with reference to a minor matter concerning the exchange. But the fact that the appellant did not heed the warning cannot, it seems to us, aid the respondents. To us it only evidences the fact that he had been completely deceived by the respondents; he was led to believe that he was in the hands of Samaritans, whereas he had fallen among the Philistines.

censees using its right of way as a pathway to A railroad company owes no duty to lirun its trains traveling in one direction on one of its double tracks and trains in the opposite direction on the other track, though customarily so operated, since, under both its duty to the public and its rights as owner of the right of way, it may run its trains in any direction on either track as it may see fit.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1236, 1237; Dec. Dig. 358.] 3. RAILROADS 365

RIGHT OF WAY IN

CITIES LICENSEES-DUTY.

The duty of railroads to persons crossing towns, where the population is congested, and its right of way for a pathway in cities and the public have been accustomed to use the tracks, is higher than in sparsely settled country districts.

Cent. Dig. §§ 1254-1256; Dec. Dig. 365.]
[Ed. Note.-For other cases, see Railroads,

4. RAILROADS 358-CROSSINGS-DUTY.
The duty of a railroad to persons crossing
its tracks at points established by the company
or by an implied license under long user by the
public is that of strict accountability, since it is
necessary for men and traffic to cross railway
tracks in the pursuit of their legitimate under-
takings and conveniences by reason whereof a
legal right to so cross arises.

[Ed. Note.-For other cases, see Railroads,
Cent. Dig. §§ 1236, 1237; Dec. Dig. 358.]
5. RAILROADS 377 - LICENSEES WALKING

ON RIGHT OF WAY-ANTICIPATING PERIL.

In an action to recover for the death of a licensee walking on a right of way of defendant · railroad, where it did not appear that decedent was on the track, the fact that the engineer had an unobstructed view for more than a mile does not establish negligence in failing to discover de cedent's peril, since the engineer was not bound to anticipate that a man walking along the right of way would step in front of the train. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1280; Dec. Dig. 377.]

Department 1. Appeal from Superior

The judgment is reversed, and the cause remanded, with instructions to direct a reconveyance from the respondent Honefenger to the appellant of the lands in Walla Walla county, together with a reassignment of the contract mentioned, on the appellant's paying into court for the use of the respondents the sum of $530 and depositing therein a re- Court, Thurston County; C. E. Claypool, conveyance to Chambers of the land in Mon-Judge. tana. As a condition precedent to a reconveyance the appellant must also pay into court the obligation assumed by Chambers, should it be established that Chambers has complied with his agreement by paying the debt.

Action by Daisy D. Imler and others against the Northern Pacific Railway Company and others to recover for death by wrongful act. Judgment for defendants, and plaintiffs appeal. Affirmed.

Hugo Metzler, of Tacoma, Ben S. Sawyer, MORRIS, C. J., and MAIN and ELLIS, JJ., of Seattle, and Gordon & Easterday, of Ta

concur.

(89 Wash. 527)

IMLER et al. v. NORTHERN PAC. RY. CO. et al. (No. 13134.)

(Supreme Court of Washington. Feb. 7, 1916.) 1. RAILROADS 369-LICENSEE WALKING ON TRACK-COMPANY'S DUTY.

Where plaintiff's decedent was walking on defendant railroad's right of way where a license had been established by customary and frequent use, it was defendant's duty to keep a reasonable lookout in anticipation of the presence of such licensees on the right of way and to use reasonable care to avoid injury after dis

covering decedent's presence thereon.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1259-1262; Dec. Dig. 369.]

coma, for appellants. J. W. Quick, George T. Reid, and L. B. Da Ponte, all of Tacoma, for respondents.

CHADWICK, J. [1] Joseph Imler, while walking along the track of the defendant railway company on the evening of the 4th of November, 1912, was struck and killed by one of defendant's work trains. The place of the accident was between the stations of Centralia and Bucoda, where the company maintains a double-track railway which is fenced and guarded at all proper places with cattle guards. Imler had been at work during the day at a farm about a mile and a half south of Bucoda, where he lived. He left the place of his employment about dusk, and fol