If any question is raised as to the correctness of the new description as compared with the map, the court is directed to take evidence and determine therefrom whether such new description conforms to the map now in evidence, and from such evidence correct any discrepancy which may be made to appear. jury found for the respondents. Appellants then unsuccessfully moved for judgment a o. v., or for a new trial. [1] The court should not have granted the motion for directed verdict or for judgment n. o. v. for appellants, for the reason that there was evidence on behalf of respondents on the one issue of fact which determined the MORRIS, C. J., and MAIN and FULLER- respondents' liability, viz., whether if the TON, JJ., concur. (89 Wash. 250) PAYZANT et al. v. CAUDILL et ux. (No. 12882.) (Supreme Court of Washington. Jan. 11, 1916.) 1. JUDGMENT 199-JUDGMENT NON OBSTANTE VEREDICTO-EVIDENCE. Where there is any evidence in favor of the defendants upon the only issue of fact determining their liability, plaintiff's motion for judgment non obstante veredicto is properly denied. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. 199.] 2. TRIAL 260-INSTRUCTIONS-REPETITION. In a broker's action for commission on a real estate trade, instructions stating that the broker had been made the defendant's agent, that he had made the sale and procured a buyer who was ready, able, and willing to comply with the terms of sale, and was entitled to his commission, absent subsequent alteration of the original contract, are sufficient to present the issue of agency, so that it was not error to refuse a requested instruction defining a real estate broker and stating the law as to when a real estate broker is entitled to his commission. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. 260.] 3. BROKERS 88-ACTIONS-COMPENSATION -QUESTION FOR JURY. Evidence held sufficient to justify submission to the jury of the issue whether a broker's contract to sell real estate for a commission was subsequently altered to waive the commission in case of sale for cash. [Ed. Note.-For other cases, see Brokers, Cent. Dig. §§ 121, 123-130; Dec. Dig. 88.] 4. APPEAL AND ERROR 1005-APPROVAL OF VERDICT-CONTRARY STATEMENT OF COURT. Although the trial judge, during the progress of the case, indicated that certain testimony was improbable and incredible, and that if the jury found otherwise he would be impelled to set the verdict aside, his conclusion on rendition of the verdict that the verdict was proper was conclusive upon the court on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3860-3876, 3948-3950; Dec. Dig. 1005.] Department 2. Appeal from Superior Court, Snohomish County; Guy C. Alston, Judge. Action by H. C. Payzant and another against B. F. Caudill and wife. From an order overruling plaintiffs' motion for judgment non obstante veredicto or for new trial, the plaintiffs appeal. Affirmed. Robert Mulvihill, of Everett, for appellants. E. C. Dailey, of Everett, for respondents. HOLCOMB, J. Appellants' motion for a directed verdict in their favor, against respondents, having been denied and the case submitted to the jury on the evidence, the equity in respondents' property was sold to appellants or to any other person, at the price fixed therefor for cash, no commission was to be paid. [2, 3] There was a contract between appellants and respondents, whereby appellants were to and did procure an exchange of certain property owned by a Mrs. Austin, valued at $2,600, for an equity of respondents in certain other property over and above a certain mortgage of $2,900, which equity was valued at $2,600, and for which appellants agreed to accept a commission of $200. Respondents by letter and wire agreed to the exchange on the precise terms stated by appellants, but proposed that appellants take $50 in cash as part payment of their commission and take respondents' note for $150, the balance, for six months. Mrs. Austin was ready, able, and willing to make the exchange, and in fact moved at once into the respondent's property. A Mrs. Wright was acting, in part, as agent for respondents, and she asserts that: She was unable to procure the consummation of the exchange from appellants because they "insisted on having all their commission in cash, and would not turn the Austin property over until they got it; that the negotiations between her and appellants continued from September 19th to October 28th." As the case developed under the evidence, the court instructed the jury to the effect that: "Under the undisputed evidence and the admissions in the pleadings, the defendants entered into the contract for the exchange of their property for the property described in the contract [Mrs. Austin's] and upon stated terms: that the undisputed evidence in the case is that plaintiffs obtained such purchaser according to the contract, and respondents' property was actually sold by appellants and possession delivered to Mrs. Austin for $3,860; that under the evidence the appellants are entitled to the commission, not exceeding $210, unless you further find that the plaintiffs, subsequent to the execution of the original contract between plaintiffs and defendants, agreed with defendants that, if the sale was made for cash, the plaintiffs would charge no commission for the sale." The court also further instructed that: this case is the question whether or not the "Really the only issue submitted to you in plaintiffs did agree, subsequent to September 19, made for cash, they would charge no commission 1914, that, if a sale of the Caudill property was for making such sale. If you should find that the plaintiffs so agreed, then your verdict should be for the defendants." Thus were the issues reduced to their ultimate in giving the case to the jury. There was, therefore, no error in refusing would be impelled to set it aside. But in passing on a motion for a new trial, it seems that the trial judge, after further reflection and deliberation, concluded that the facts supported the verdict, probably considering that the jury were better judges of the credibility and probably of the truth of the testimony than was the court, and refused to grant a new trial. Having thus undoubtedly exercised his discretion, we are concluded. It is our province under the repeated decisions of this court to correct manifest abuses of discretion on the part of the trial courts in granting or refusing new trials, but not to interfere with the clear exercise of the discretion of trial courts. There is no error. The judgment is affirmed. the instructions tendered by appellants, defining a real estate broker and stating the law as to when a real estate broker is entitled to his commission. The instructions given referred to the jury but one issue, which expressly stated that appellants had been made the brokers or agents of respondents; that they had made the sale, procured a buyer who was ready, able, and willing to comply with the terms of sale, and were entitled to their commission unless there had been a subsequent alteration of the original contract. The manner of submission to the jury was entirely favorable to the appellants unless the court erred in submitting the one issue to the jury that was submitted. Upon this appellants say that there was no issue for the jury; that the lower court submitted an issue as to which there was no evidence to support it, viz.: "Did the appellants agree MORRIS, C. J., and BAUSMAN, MAIN, that they would not charge any commission and PARKER, JJ., concur. if the sale was made for cash?" It is asserted that the testimony is to the effect that appellants would purchase the Austin property after the trade was made, and if the appellants purchased any of the property they would not receive any commission; that they were not to receive a commission if they purchased, and this was all the evidence on a cash sale; that the appellants did not purchase the property; that the burden was upon the respondents to show by clear and substantial evidence that appellants made a contract by which they were to perform services and receive no pay. While it is a fact that the facts as testified to by Mrs. Wright, the agent for respondents, would seem to be improbable, yet one of appellants, Mr. Smith, testified as follows: "Question: Isn't it a fact, that when you showed them the Lowell [Mrs. Austin's] property, you told them that they could either have the Lowell property, or you would sell the Lowell property and pay his equity in cash clear, without any commission? Isn't that true, Mr. Smith? Answer: Yes; this $1,000 or $1,100 would have been the amount net to them without a commission. Q. Without a commission? A. Yes, sir: and that is what-for your information, that is what I was trying to do, this 30 days; was to get them that cash net to them." The Lowell or Mrs. Austin's property was sold according to appellants' testimony, and appellants furnished the money to pay cash for the equity, and improbable as it would otherwise seem, it may be inferred that no commission was to be paid. We think, therefore, that the court properly submitted this issue to the jury. [4] The same question in effect is raised in argument in support of appellants' motion for a new trial. It appears that the trial judge, in passing upon appellants' motion for a directed verdict, very forcibly intimated that the testimony that, if the sale was made for cash, no commission was to be charged, was improbable and incredible, and that in case the jury found otherwise, he felt that he (89 Wash. 239) BEMISS v. PUGET SOUND TRACTION, (Supreme Court of Washington. Jan. 11, 1916.) [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. 318.] 2. CARRIERS 347-INJURY TO PASSENGERS QUESTION FOR JURY CONTRIBUTORY NEGLIGENCE. In such action, and notwithstanding the plaintiff's negligence in failing to take any precautions for his safety while waiting to board the inbound car, yet if the motorman on the outbound car either saw, or in the exercise of proper care could have seen, him in time to have slacked the speed of his car and avoided the accident, it could not be said as a matter of law that such negligence was the proximate cause of the injury, but the question was for the jury. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1346, 1350-1386, 1388-1397, 1402; Dec. Dig. 347.] Department 2. Appeal from Superior Court, King County; John E. Humphries, Judge. Action by John M. Bemiss against the Puget Sound Traction, Light & Power Company. Judgment for plaintiff, and defendant appeals. Affirmed. Jas. B. Howe and A. J. Falknor, both of Seattle, for appellant. Walter S. Fulton, of Seattle, for respondent. MAIN, J. The purpose of this action was to recover damages for personal injuries alleged to be due to the negligence of the defendant. In the answer the negligence was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes denied, and contributory negligence on the, stopped for the purpose of receiving him as part of the plaintiff was affirmatively pleaded. The affirmative defense was denied by a reply. Upon the issues thus framed, the cause was tried to a jury, and resulted in a verdict in favor of the plaintiff in the sum of $6,000. Judgment being entered upon the verdict the defendant appeals. [1] The assignments of error challenge only the sufficiency of the evidence to sustain the verdict. The facts which were either admitted or which the jury had a right to find from the evidence introduced are substantially as follows: At about 7 o'clock a. m. on December 31, 1913, the respondent, at the intersection of Yesler Way and Twenty-Seventh avenue in the city of Seattle, was struck by a street car operated by the appellant, and sustained a severe injury. Yes ler Way is a street running from the business section of the city in an easterly direction. Twenty-Seventh avenue extends north and south and intersects Yesler Way at right angles. Both streets at the place of the accident were paved. The appellant owns and operates a double track cable street railway on Yesler Way, the cars being propelled by an underground cable, which is operated at a speed of 10 miles an hour, and when going at full speed, the cars are operated at the speed of the cable. The outbound cars are operated upon the southerly track, and the inbound cars upon the northerly track. The distance between the inside rails of the two parallel tracks is 7 feet. The cars operating upon the tracks overlap the tracks a distance of 30%1⁄2 inches, and as the two cars pass each other on the parallel tracks, the nearest point between the outsides of their running boards is 23 inches. The cars operated upon these tracks have an inclosed portion in the middle, and on each end an open section. On each side of the open section is a long seat, running lengthwise of the car and facing outward, which seat is reached by a running board one step below the floor of the car. Passengers are allowed to board and alight from the cars from either the front or rear section. At the time of the accident in question, and for some years prior thereto, the respondent had lived to the south of Yesler Way and a little to the east of Twenty-Seventh avenue. It had been his custom, in going to his business in the morning, to take the westerly or inbound Yesler Way car at Twenty-Seventh avenue and Yesler Way. On the morning in question, when he reached the corner of Yesler Way and TwentySeventh avenue, he observed the inbound car about 150 feet to the east. He then crossed the street and stood upon or near the south track, waiting for the car to approach, when he would board it at the front open section, as he usually did. In crossing the street he gave no attention to any other car that might be coming from the west. When the a passenger, he then being opposite the south side of the rear section of the car, the front open section having passed him. While in this position, and before he boarded the car, another car, approaching from the west, struck him, causing the injury complained of. This latter car was proceeding at full speed without warning, and no attempt was made to stop it, or slacken its speed until it was within approximately 10 feet of the place where the respondent was preparing to board, or in the act of boarding the inbound car. After striking the respondent, the car ran practically its full length before it was stopped; the rear open section, after the car stopped, overlapped the rear open section of the inbound car. It was a dark and rainy morning, but was sufficiently light so that the motorman on the outbound car could have seen the respondent when he was approximately 150 feet distant. It was the custom for west-bound cars at this point to receive passengers from the south side. No objection at any time was interposed by the appellant to passengers boarding the car from that side. At the conclusion of the respondent's case the appellant moved for a nonsuit; and at the conclusion of all the evidence challenged the sufficiency of the evidence and moved for a directed verdict. These motions were denied. [2] The appellant's principal contention is that the respondent was guilty of contributory negligence in standing on or near the south track without taking any precautions to avoid being hit by a car coming from the west upon that track. The respondent claims that the appellant was guilty of negligence in that the car upon the outbound track approached the place where the respondent was boarding the inbound car at full speed. Notwithstanding the fact that the respondent may have been guilty of negligence in failing to take any precaution for his safety while he was waiting to board the inbound car, if the motorman upon the outbound car either saw, or in the exercise of a proper degree of care could have seen, him in time to have slackened the speed of the car, and thus have avoided the accident, it cannot be held as a matter of law that the negligence of the respondent was the proximate cause of the injury. The question was for the jury. Morris v. Seattle, R. & S. Ry. Co., 66 Wash. 691, 120 Pac. 534; O'Brien v. Washington Water Power Co., 71 Wash. 688, 129 Pac. 391; Mosso v. E. H. Stanton Co., 75 Wash. 220, 134 Pac. 941. The case cited by the appellant which is most nearly in point in sustaining its contention is Miller v. St. Paul City Ry. Co., 42 Minn. 454, 44 N. W. 533. A careful reading of that case will disclose a material difference in one respect between the facts there and the facts in this case. But even port the contention of the appellant here, I convenience of the public may require; the it would not be controlling. Under the facts original compensation being presumed to cover such added use. in the present case it is ruled by the cases of Morris, O'Brien, and Mosso, supra. The judgment will be affirmed. MORRIS, C. J., and PARKER, HOLCOMB, and ELLIS, JJ., concur. (89 Wash. 187) [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 841-846; Dec. Dig. 318.] Morris, C. J., and Chadwick, J., dissenting. En Banc. Appeal from Superior Court, Pierce County; Ernest M. Card, Judge. Action by the Tacoma Mill Company against the Northern Pacific Railway Com TACOMA MILL CO. v. NORTHERN PAC. pany. From a judgment for defendant, plain RY. CO. (No. 12533.) (Supreme Court of Washington. Jan. 11, 1. DEEDS 99 [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 261-265; Dec. Dig. 99.] 2. EVIDENCE 461 DOCUMENTARY EVIDENCE-CONSTRUCTION-PAROL EVIDENCE. Where the intention of the parties to a written contract and right of way deed can be discovered from the language employed, extrinsic evidence is not admissible for the purpose of ascertaining intention. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2129-2133; Dec. Dig. 461.] 3. CONTRACTS 147-CONSTRUCTION. A written contract should be read as a whole and all of its provisions considered, and too much effect cannot be given isolated provisions. [Ed. Note. For other cases, see Contracts, Cent. Dig. 88 730, 743; Dec. Dig. 147.] 4. CONTRACTS 147-CONSTRUCTION. The duty of the courts, when construing questioned contracts, to search out the intention of the parties, is well established, but that duty arises out of an ambiguity, and, when the instrument is not ambiguous, effect must be given to its terms. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 730, 743; Dec. Dig. 147.] 5. RAILROADS 73-CONSTRUCTION-RIGHT OF WAY DEED. tiff appeals. Affirmed. Hughes, McMicken, Dovell & Ramsey, of Seattle, for appellant. Geo. T. Reid, J. W. Quick, and L. B. da Ponte, all of Tacoma, for respondent. HOLCOMB, J. Negotiations initiated September 2, 1887, by respondent's predecessor, Northern Pacific Railroad Company, and carried on between it and appellant, resulted in an agreement and deed to the railroad company for a right of way through appellant's premises. The original agreement was drawn up in writing, and, passing from hand to hand and from party to party, was mislaid and lost a number of times before it was fully executed by the signatures of both original parties. Subsequent negotiations were had from time to time, during many years, to restore the original agreement, which finally culminated in an agreement which was formally made and executed in writing by the present railway company respondent and appellant, in the following terms: "R. W. No. 33. "This indenture made this 24th day of January, A. D. 1906, by and between the Tacoma Mill Company, a corporation duly incorporated under the laws of the state of California, and doing business at Tacoma, in the state of Washington, the party of the first part, and the Northern Pacific Railway Company, a corporation incorporated under the laws of the state witnesseth as follows: of Wisconsin, the party of the second part, Plaintiff, who owned extensive premises used for the manufacture of lumber, by a written instrument in 1906 which restored an origi- the said party of the first part made an agree"Whereas, in the month of May, A. D. 1888, nal agreement granting to defendant's predeces- ment with the Northern Pacific Railroad Comsor a right of way over a portion of the premises, granted defendant a right of way over the pany,, then duly incorporated and organized as a railroad corporation, under an act of Conpremises for its Bay Side extension, The instrument and right of way deed required defend-gress of the United States approved July 2, A. ant to lease certain water lots to plaintiff, to D. 1864, which said agreement was never exeerect a fire-proof tunnel over the right of way, to wit: cuted, and was in words and figures following, and to maintain crossings and a siding for plaintiff's sole benefit. Thereafter defendant extend- ""This agreement made and entered into this ed its Bay Side line, and many trains were run. the Tacoma Mill Company, a corporation duly day of May, A. D. 1888, by and between This interrupted defendant's use of the cross-incorporated under the laws of the state of ings. Held that, in view of the fact that a California, the party of the first part, and the grant of a right of way entitles a railroad com- Northern Pacific Railroad Company, a corporapany to make every use of the land the traffiction duly incorporated by act of Congress aprequires, and the original compensation is presumed to cover such added use, plaintiff was not entitled to enjoin defendant from running additional trains on the right of way so granted. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 179-182; Dec. Dig. 73.] 6. EMINENT DOMAIN 318-RIGHTS OF WAY -GRANT. Where land is taken for a railroad right of way, the railroad company is entitled to make all the use of the land which the necessities and proved July 2, A. D. 1864, witnesseth: "Whereas, the said parties to this agreement heretofore, to wit, on April 20, 1888, by their executed a certain memorandum of agreement respective attorneys thereunto duly authorized, relative to a right of way to be granted through the mill property of the said party of the first part in the city of Tacoma, Pierce county, Washington Territory, for what is known as the Bay Side extension of said company's railroad along the water front of Commencement Bay, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and which said agreement provided for the execution of and delivery of a deed by said party of the first part conveying to said party of the second part the said right of way, for the consideration and upon the conditions and with the reservations therein and hereinafter set forth, and which said agreement also provided that a contract should be entered into by and between said parties in proper form setting forth the contents of said memorandum, and the conditions upon which said right of way was granted, and all the agreements, covenants, and stipulations of the parties relating thereto; "And whereas, the said party of the first part has this day duly executed said conveyance of said right of way to be delivered to said party of the second part upon its execution of this agreement, which said right of way is located upon a strip of land twenty (20) feet in width (being ten [10] feet in width on each side of the center of said proposed line of railroad as surveyed and laid out, and hereafter to be constructed) across the lands in section twentynine (29), township twenty-one (21) north, of range three (3) east, W. M., owned by the Tacoma Mill Company, the center line of said strip of land beginning one hundred (100) feet east and sixty-nine and thirty-one one-hundredths (69.31) feet north from where the center line of Second street, in Tacoma, W. T., intersects the western boundary of section twenty-nine (29), township twenty-one (21) north, of range three (3) east, W. M., running thence south 76° 25′ east, two hundred and six-tenths feet; thence on a 7° curve to the right two hundred and twentysix and two-tenths feet; thence south 60° 35' east, two hundred and eighty feet; thence on a 12° 30′ curve to the right one hundred and sixty feet; thence south 40° 35′ east, one hundred feet; thence on a 12° 30' curve to the left to a point one thousand two hundred and fifteen feet east of the western boundary of section twenty-nine (29) aforesaid, assuming said western boundary of section twenty-nine a meridian of reference in the foregoing description; and it is to be held by said second party as in said conveyance is set forth: "Now, therefore, in consideration of the premises, and to carry out said memorandum agreement the parties hereto agree as follows: "First. The said Northern Pacific Railroad Company shall inclose their track and roadway to be laid and located upon said right of way with a good house or tunnel, constructed of iron or other fireproof material, and shall occupy in construction as little room as possible; the said tunnel shall begin near the eastern boundary of said mill company's property, not exceeding twenty feet west of gate leading to log pond, and to continue on through the property with said house or tunnel as the said mill company may direct; said tunnel shall not exceed nineteen feet in the clear above the rails, and is to be kept and maintained in good and safe condition by said railroad company and at its expense, and said track and roadway across said Mill property must be established at such a grade so that said tunnel, when constructed, will clear the chutes and other connections with said mill as the same shall be altered to provide for said construction, and will not interfere with the operation of said mill. "Second. The railroad company shall repair or replace, as the case may be, all chutes and roadways leading to and from the mill, machine shops, messhouse, and other buildings on said mill company's property, wherever the same are in any way impaired or torn away in course of construction of said railroad, and shall put said chutes and roadways in as good working order or condition as they were before said interference with the same before construction, or shall bear the expense of so doing; the planer mill to be added to where any portion is removed or taken away in construction, and order as they were before removal, at the expense of said railroad company. ***Third. The line of said railroad is to pass within eight (8) feet of the gate leading to log pond, and said railroad company is to construct a span sufficiently long so as not to interfere with the booming privileges or the sluicing of logs through said gate into the log pond, but said span not to exceed fifty (50) feet in length; thence in a westerly direction, the said line passing the mill and machine shop with as little damage thereto as possible; after passing said machine shop line of railroad to be as near the bank as possible. "Fourth. The said Northern Pacific Railroad Company shall remove so much of the western end of the two railroad tracks and trestle on which same are laid lying east and adjoining the mill property as is situate upon lots 1 and 2 of the water front lots of the Northern Pacific Railroad Company hereinafter mentioned; the space so vacated, to wit, the western end of what is known and designated as lots numbered one (1) and two (2) on the map called the map of the water front lots of the Northern Pacific Railroad Company, which said map is to be found in the office of the assistant general manager of the said railroad company at Tacoma, Washington Territory, and a blueprint copy of which was furnished on or about April 20, 1888, to said mill company to identify said lots, the said lots being at the western extremity of the property of the Tacoma Dock and Warehouse Company on said water front. And said railroad com-any shall in due form execute and deliver a lease of said lots to said mill company, to have and to hold the same for its sole use as a dumping or booming ground for its logs, free of any rental charge, and to be used and occupied for such purpose by said mill company as long as the said railroad company shall use the property granted by said mill company as a right of way for railroad or other purposes, and the delivery of said lease shall be concurrent in point of time with the delivery of said deed. "Fifth. It is also agreed that the wagon road now leading from the Mill property in a westerly direction across the property of the Tacoma Land Company, and connecting with Second street, in the town of Old Tacoma, shall remain and be kept open in its present location, and to the extent of its present width (thirty feet), until such time as such other wagon road or street shall be opened up through said property leading from the mill property and connecting with Second street, as shall equally as well, or better, accommodate and suit the convenience of said mill company in reaching points west of their Mill property in Old Tacoma, by wagon road, and that the railroad company shall put in and maintain a good and sufficient crossing for said road. "Sixth. The said Northern Pacific Railroad Company shall also put in and maintain in said tunnel as many doors, openings, or gangways leading to and from the mill, machine shop, and other buildings as may be necessary in adapting to the successful operation of said mill and its business the obstruction caused thereto by the construction of said tunnel. The said Northern Pacific Railroad Company shall also put in and maintain a side track or spur for the sole use and benefit of the mill company in shipping or receiving lumber or goods, said spur to leave the main track at a point beginning opposite to the western end of the machine shop, and extending northwardly and westwardly, in a parallel direction with said main track, over the western portion of said mill company's property to a point on the western line of the mill company's property a distance of five hundred feet. The said railroad company also shall do all switching of cars necessary in the use of said railroad in the carriage or moving of said mill company's lumber or goods to and from said |