trol, attempted to drive between the deceased and another boy, when his automobile struck plaintiff's son Tyree Locke, and killed him. For answer to the complaint the defendants denied any negligence, and alleged that the boy who met his death was guilty of contributory negligence because he stepped in front of defendants' car when there was no time for the defendants to avoid the collision. Upon these issues the case was tried to a jury, and resulted in a verdict and judgment in favor of the plaintiff. The defendants have appealed.

that his failure to use the same contributed in any material degree to the happening of the accident, and these things you believe by a fair preponderance of the evidence, then his father cannot recover from either of the defendants, unless you further believe from the evidence that, at the same time, said Tyree Locke was automobile, and the defendant driver thereof saw unconscious of the approach of the defendant's said Tyree Locke and observed his state of mind and discovered his peril in time to have avoided the collision with him and failed in this duty." The court further gave the following instruction:

"If you believe from the evidence that Tyree The facts are, in substance, as follows: Locke collided with the automobile of the deOn the morning of the 4th day of July, 1916, fendants, that when he came into collision with it he was in that part of the east side of Monroe the respondent's son, Tyree Locke, and anothstreet in which automobiles are required to er boy were shooting firecrackers in the city travel, and that he did not, either before enterof Spokane. They were upon Monroe street, ing upon or when in that portion of the street, a street which runs in a northerly and south- look for the approach of automobiles from the erly direction. south, and that by so looking he could by the Eleventh avenue intersects exercise of reasonable care have observed the this street from the west A little south of approach of the automobile, and could, by the the intersection of Eleventh avenue, Norman exercise of reasonable care have avoided coming avenue enters from the east upon Monroe in collision therewith, then he would be guilty of contributory negligence, and your verdict street. The two boys, on that morning, came should be for the defendant, unless you further from Eleventh avenue onto Monroe street, believe from the evidence that at said time said and proceeded a short distance to the north. Tyree Locke was unconscious of the approach of One of the boys was standing about the mid-driver thereof saw said Tyree Locke and obthe defendant's automobile; that the defendant dle of Monroe street, and near the rails of served his state of mind and discovered his peril a street car line which was upon that street. in time to have avoided the collision with him Tyree Locke was on the east side of Monroe and failed in his duty." street, a little to the east of the other boy. He was somewhere near the curb. The boys were looking to the westward. A street car, going south, passed them while they were in this position. The appellant Greene was driving his automobile from the south to the north on Monroe street. He saw these boys for a distance of 300 feet before he came to them. He met the street car a short distance south of where the boys were. He testifies that he was traveling 12 or 15 miles per hour on a slight down grade; that there was room enough to pass between the boys, and he undertook to do so; and that Tyree Locke stepped in front of his automobile, and was struck by the front right-hand fender, and the automobile ran over him and killed

him.

The theory of the respondent at the trial was that the boys were standing near together, that they did not see the automobile, and that it came down upon them without warning, and ran over Tyree Locke and killed him. The theory of the defense was, as above indicated, that the appellant was driving his car at a moderate rate of speed, that he undertook to go between the two boys, where there appeared to be plenty of room, and that the deceased boy stepped in front of appellants' car and was, for that reason, killed.

[1] It is strenuously argued by the appellant that the italicized portions of these two instructions are erroneous, because they seek to apply the doctrine of last clear chance to the facts in the case. As we have indicated above, the respondent tried the case upon the theory that the appellants saw the boys upon the street and should have known, from the manner of the boys, that they did not see the approach of the appellants' car; that the appellants, driving at an unreasonable rate of speed, carelessly ran the boy down and killed him; while the appellants' theory was that the boy carelessly stepped in front of the approaching automobile when there was no time to avoid the injury, and met his death thereby. These instructions, we think, present both theories of the case, and under the rule which this court has followed in a number of cases the italicized portions of these instructions was not error. In the case of Mosso v. Stanton Co., 75 Wash. 220, at page 228, 134 Pac. 941, at page 945 [L. R. A. 1916A, 943], we said:

"The courts are wide of an agreement as to the extent of the last chance doctrine as applied to the operation of trains, street cars, automobiles, and the like. But what we conceive to be the sounder view is this: Assuming that a traveler has negligently placed himself in a dangerous situation upon the highway, then, as we have seen, whenever the person in control of

The court instructed the jury, among oth- such agency actually sees the traveler's situation er things, as follows:

"You are instructed that if you find that Tyree Locke was not using his faculties or powers of observation in a reasonable way, having in consideration his age and experience, and that if he had been using the same in such man

and should appreciate his danger, the last chance rule applies, without regard to the continuing negligence of the traveler concurring with that of the operator up to the very instant of the injury." Herrick v. Washington Water Power Co., 75 Wash. 149, 134 Pac. 934, 48 L. R. A. (N. S.) 640; Underhill v. Stevenson, 170 Pac.

It follows that the italicized portions of these instructions were not erroneous.

[2] At the beginning of one of the instructions the court said to the jury:

"You are instructed that Tyree Locke had the same right to use the public street of the city that the defendant had.'

It is argued that this was error. We think there can be no doubt that a pedestrian has the same right to the use of a public street as a vehicle, especially at or near crossings. These boys, at the time of the accident, came upon Monroe street at a street crossing. They were a little to the north of that crossing, and, while it was their privilege to be upon the street, they, of course, would not be authorized to obstruct traffic any more than a vehicle; but certainly it cannot be said that a pedestrian has less right to be upon a public street than a vehicle. We think there is no error in this sentence, and, when used with reference to the other instructions, the court meant that a pedestrian, when upon a street, had the same right as a vehicle. Appellants next argue that the court erred in refusing to give requested instructions numbered 2, 3, 6, 7, and 8; but we are satisfied that the gist of these instructions was given in the part not italicized of those above

considered.

1. APPEAL AND ERROR 544(1)—STATEMENT OF FACTS-EFFECT OF STRIKING.

Where statement of facts was stricken on

motion prior to hearing, all inquiry into assign-
ments of error going to the rejection of offered
testimony and into all assignments upon in-
structions of the court is cut off.
2. APPEAL AND ERROR 544(1)-STATEMENT
OF FACTS-EFFECT OF STRIKING.

Where the statement of facts has been
stricken, the merit of the instructions cannot
be determined on appeal unless they would be
wrong under any conceivable state of facts.
3. APPEAL AND ERROR 907 (3)—STATEMENT
OF FACTS.

Where the errors relied on cannot be reviewed without reference to a statement of facts, and there is none, a presumption of regularity calling for an affirmance attends the judgment. 4. APPEAL AND ERROR 544(1)—STATEMENT OF FACTS-EFFECT OF STRIKING.

Where the statement of facts has been the court cannot be held to be a comment upon the weight of evidence which calls for a new trial, since to work such result the comment must be prejudicial.

[3] It is argued that the court nowhere defined contributory negligence; but it is apparent that the two instructions above quoted contained a definition of contributory negligence, and told the jury, in substance, that, if there was failure on the part of the deceased to look for the approach of automo-stricken, the translation of a technical term by biles from the south, or failure to use reasonable care, and thereby have avoided the accident, there could be no recovery. Of course this meant that there could be no recovery if the appellant was not guilty of negligence which primarily caused the collision. The instructions given by the court in this case appear to have been carefully prepared. | They state the law of the case clearly and concisely, and we are satisfied that there was no error in the instructions.

Department 2. Appeal from Superior Court, Spokane County.

Action by William Tar against the Model Bakery Company. Judgment for defendant, and plaintiff appeals. Affirmed.

W. B. Mitchell, of Spokane, for appellant. Danson, Williams & Danson and George D. Lantz, all of Spokane, for respondent.

[4] It is lastly argued by the appellants that the court erred in refusing to grant a nonsuit; but it is apparent from the state- CHADWICK, J. [1] Prior to the time set ment of the case which we have hereinbefore for the hearing of this case the statement of made that the question of the negligence of facts was stricken on the motion of respondthe appellants was one for the jury. If the ent. This precludes all inquiry into assignappellant, as evidence offered by the respond-ments of error going to the rejection of ofent tends to show, was driving his automo- fered testimony and also to all assignments bile at an unreasonable rate of speed past the upon the instructions of the court. Weld v. street car, and upon the boys who were | Wheeler, 90 Wash. 178, 155 Pac. 748; Morstanding in the street, unconscious of his ap-gan v. Bankers' Trust Company, 63 Wash. proach, there can be no doubt of liability. 476, 115 Pac. 1047.

If the deceased boy stepped immediately in [2, 3] We have often held that it is error front of the automobile of the appellants to instruct the jury by submitting the law in when there was no time to avoid the accident, of course there could be no recovery; but a question was submitted to the jury by the appellants, as follows: “Did Tyree Locke

the way of abstract propositions. It follows as a matter of course, if instructions must have some reasonable relation to the facts, that the merit of the instructions can

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

only be determined by reference to the facts, | 3. EMINENT DOMAIN 246(2)—Condemnaunless, indeed, the instructions complained TION PROCEEDINGS-RIGHT TO ABANDON. of would be wrong under any conceivable state of facts, which is not urged by counsel. The rule is well established that, where the errors relied on cannot be reviewed without reference to the statement of facts, a presumption of regularity calling for an affirmance attends the judgment. Stedman v. Keener, 71 Wash. 462, 128 Pac. 1047; McDonald v. Van Houten, 59 Wash. 593, 110 Pac. 428; Yakima Grocery Co. v. Benoit, 56 Wash. 208, 105 Pac. 476.

[4] It is also contended that the court made comment on the evidence to the prejudice of appellant. In one of its instructions the court said:

"The evidence of the physician in the case shows that plaintiff was suffering from occupational dermatitis, which simply means an inflammation due to dishwashing."

ceedings after an award of damages; the rights
A railroad may abandon condemnation pro-
of the parties not changing till the damages
have been ascertained and paid.
4. CONSTITUTIONAL LAW 93(1)-CONDEM-
NATION PROCEEDINGS AWARD VESTED
RIGHT OF PROPERTY OWNER.
The owner of land for which condemnation
proceedings have been instituted can obtain no
vested right to the award till by its payment the
condemning party has obtained the right to ap-
propriate the land to its use.

Department 2. Original proceeding by the State, on the relation of James Z. Moore and wife, against the Superior Court of Spokane County, and Hon. Bruce Blake, Judge. Writ denied.

Robertson & Miller, E. H. Sullivan, and S. R. Green, all of Spokane, for relators. Cullen, Lee & Matthews, of Spokane, for respondent.

MORRIS, J.

Reference to the testimony of witnesses may, or may not, be a comment within the Relators by this writ seek meaning of the Constitution, depending entirely upon a view of the whole testimony, a review of the order of the lower court which can only be had by a reference to dismissing condemnation proceedings as to

lands of the relators. The condemnation

the statement of facts. Such comments must be prejudicial. Earles v. Bigelow, 7 proceedings were commenced in the lower Wash. 581, 35 Pac. 390; Johnson v. North-court on September 7, 1909, by the Chicago, Milwaukee & Puget Sound Railway Company port Smelting & Refining Co., 50 Wash. 569, 97 Pac. 746; Sheffield v. Union Oil Co., 82 seeking to condemn, among other lands, eight lots belonging to relators in East Side Wash. 386, 144 Pac. 529. Syndicate addition to Spokane; the railWe think it would do violence to the spirit of the law to hold, in the absence of a rec-way company at the same time filing in the ord, that the translation of a technical term County auditor's office a notice of lis pendens. by the court was a comment calling for a In due time an order of necessity was made, new trial. The fact may not have been controverted. Conover v. Carpenter, 57 Wash. 147, 106 Pac. 620; Carlisle Packing Co. v. Deming, 62 Wash. 455, 114 Pac. 172; White v. Jansen, 81 Wash. 435, 142 Pac. 1140. Affirmed.

ELLIS, C. J., and MOUNT, MORRIS, and a new trial. HOLCOMB, JJ., concur.

CONDEMNATION PROCEEDINGS - ABANDONMENT - EVIDENCE.

and on April 18, 1910, a hearing was had for the purpose of ascertaining the amount to be awarded relators for the taking of their land, and a verdict returned fixing the damages at $30,000. Within two days the railway company, being dissatisfied with the amount of the verdict, filed a motion for Nothing seems to have been done by either party relative to this motion until August 27th, when a stipulation was made for its hearing on September 3d. In the meantime on June 21st the railway company obtained a franchise from the city of Spokane to construct a railway line into the city over a route covering the lands of relators, and on August 8th filed its formal acceptance of such franchise with the city clerk. On September 2d the railway company filed its motion to dismiss the condemnation proceedings and noted the motion for hearing September 10th. Neither the motion for a new trial nor the motion to dismiss was heard at the time noted. On March 8, 1911, relators filed a motion for judgment on the verdict. All of these pending motions seem to have been heard together by the

It is evidence of abandonment of condemna- lower court on April 8, 1911, when the lowtion proceedings for right of way that the rail-er court granted the railway company's moroad on building into the city abandons the part tion to dismiss conditioned on the entry of of its route over the lands in question, and pro

ceeds by a different route under a trackage judgment on the verdict and the payment of agreement with another company. costs to relators. The railway company

an award which they desired to enforce as a money judgment, and not subject themselves to the chances of a second condemnation or the return of a smaller award. If relators' desire had been only to clear their lands of the condemnation proceedings, they could at any time after the railway company had filed its motion to dismiss have obtained an order from the lower court dismissing the proceedings on the ground of

failed to comply with these conditions for the relators at that price. Relators obtained the reasons now stated that it feared its act might be construed as a waiver of its motion to dismiss. The matter rested in this condition until January 25, 1917, when the railway company filed a second motion to dismiss. On May 31st relators filed a second motion for judgment on the verdict. These two motions were heard together and on November 1, 1917, the lower court denied relators' motion for judgment and granted the railway company's motion to dismiss abandonment; they cannot, therefore, throw conditioned as in the order of April 8, 1911, that judgment be first entered on the verdict whereupon the proceedings would be dismissed at the cost of the railway company. This is the order up for review.

the whole burden of this delay upon the railway company, since the opportunity to proceed was as much within their power as within that of the railway company.

We find no error in the order complained of, and the writ is denied.

ELLIS, C. J., and MOUNT, CHADWICK,

(100 Wash. 409)

[1-4] These facts present the question whether or not the railway company abandoned the condemnation proceedings. We think it clear that it has done so, and that and HOLCOMB, JJ., concur. such abandonment took place when it filed its motion to dismiss on September 2, 1910, which was within a reasonable time after the return of the verdict awarding damages. Further evidence of abandonment is shown by the fact that the railway company upon building its line into Spokane from the east abandoned that part of the route crossing relators' lands and proceeded by a different route under a trackage agreement with an established railway line. That a railroad may abandon condemnation proceedings after the award of damages is well settled in this state. Pt. Angeles R. R. Co. v. Cook, 38 Wash. 184, 80 Pac. 305; Pt. Townsend So. R. R. Co. v. Barbare, 46 Wash. 275, 89 Pac. 710. Such is also the general rule in the absence of statutory provisions. Nixon v. Marr, 190 Fed. 913, 111 C. C. A. 503, 36 L. R. A. (N. S.) 1067; Cunningham v. Memphis R. R. Terminal, 126 Tenn. 343, 149 S. W. 103, Ann. Cas. 1913E, 1062; Lewis on Eminent Domain, § 656.

TAYLOR et al. v. CITY OF SPOKANE. (No. 14263.)

(Supreme Court of Washington. Feb. 26, 1918.)

1. MUNICIPAL CORPORATIONS 822(4)-INJURIES ON STREETS-INSTRUCTIONS.

sidewalk, the court charged that, if plaintiff In an action for injuries sustained on an icy knew of the dangerous condition of the sidewalk, the law required more care than if she knew nothing about it; that the degree of care would still be ordinary care, but that she would be required to use the ordinary care which reasonable prudence and caution would dictate to the ordinary traveler as being proper; that if she exercised this care, and injury resulted, she was without fault, but if not, and the failure so to do proximately contributed to the injury, she was negligent, and could not recover; that the question of whether on all the facts she was guilty of negligence was for the jury, and that, of the sidewalk, and the wearing of high-heeled while any previous knowledge of the condition shoes, were not conclusive that she was guilty of contributory negligence, yet the jury, if they found that such acts or omissions on her part were acts of negligence contributing proximately to her injury, might find for defendant. Held, that this instruction was not erroneous, as making the character of the shoes worn an independthat if plaintiff had knowledge of the condition ent act of negligence, but merely told the jury of the sidewalk, and was wearing high-heeled shoes, and if such acts were acts of negligence, she could not recover.

2. MUNICIPAL CORPORATIONS 821(20)—INJURIES ON STREETS-QUESTIONS FOR JURY.

The reason for this rule in states with constitutional and statutory provisions such as ours is that the land cannot be taken until the damages have been first ascertained and paid. Until that time the rights of the parties have not changed. The condemning party has acquired nothing, and the landowner has lost nothing. By the same reasoning that prevents the condemning party from obtaining any vested right to the land to be taken until the damages have been ascertained and paid it follows that the owner of the land can obtain no vested, right to the award until by its payment the condemn-3. ing party has obtained the right to appropriate his land to its use. State ex rel. Struntz v. Spokane County, 85 Wash. 187, 147 Pac. 879.

The reason for the long delay in this case is apparent. The railway company regarded the condemnation award as excessive and did not desire to appropriate the lands of

In an action for injuries sustained on an icy sidewalk, where the shoes worn by plaintiff were in evidence, it was a question for the jury on an icy sidewalk. whether it was negligence to wear such shoes.

APPEAL AND ERROR 1033(5)-TRIAL 186, 194(16)-INSTRUCTIONS-COMMENTS ON EVIDENCE ERROR IN APPELLANT'S FAVOR.

sidewalk, an instruction that the fact, if true, In an action for injuries sustained on an icy that plaintiff was wearing high-heeled shoes was not conclusive that she was guilty of contributory negligence was neither a comment on a fact

nor on the weight to be attributed to the fact that she was wearing high-heeled shoes, and, if error, was error in plaintiff's favor.

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