could be nothing short of the grossest negligence." It is contended that the fact that plaintiff was only six years of age, does not alter the case. If the plaintiff was old enough to take care of himself the negligence should be imputed to him; if not of sufficient intelligence, to his parents-the result being the same, in either case he is barred of his action. In the latter case the law charges the negligence of his parents to his account and he is as much barred by it, as if it was his own. Sherman and Redfield on Negligence, sec. 48. It is further alleged on the part of the appellant that the only grounds upon which a charge of negligence can be based are in not sounding the whistle or ringing a bell within eighty rods of the crossing-and in not making an effort to stop the train on the discovery of the object on the track. In regard to the first it is claimed that the statute requiring the ringing of a bell on approaching such crossing is for the benefit of parties traveling on the highway-" and not for the benefit of those who unlawfully convert it into a place to sleep upon." Plaintiff was not upon the traveled crossing, but was asleep on the railroad track at least ten feet from the same. Numerous cases are cited where persons were similarly injured while asleep on railroad tracks, in none of which a recovery was allowed. On the part of respondent negligence is claimed in not sounding the whistle and ringing the bell, and in paying no attention to the obstructions when first discovered at a distance of five hundred yards. Glassell, Chapman & Smiths and Satterwhite, attorneys for defendant and appellant. C. W. C. Rowell and A. B. Paris, attorneys for plaintiff and respondent. OPINION BY THE COURT. I. The 486th section of the Civil Code, providing that a railroad corporation shall be liable for all damages sustained by any person and caused by the locomotive of the corporation, when bell is not sounded or a whistle blown, as directed by that section, does not abrogate the doctrine of a contributory negligence, or operate to give a right of action where the negligence of the plaintiff, if an adult, or if an infant, as here, the negligence of the parent or person standing in loco parentis, materially and proximately contributed to the injury. 2. The jury, in response to the special issues submitted to them, found that neither the infant plaintiff nor his parents were chargeable with negligence which contributed to the injury of the plaintiff; the defendant moved the Court below for a new trial, on the ground that the evidence did not support the verdict in these respects. The motion was denied in the Court below. We think it should have been granted. The plaintiff, an infant of some six years, seems to have been permitted by his parents to make use of the roadway of the defendants as a playground and to lie down on the railroad track unattended. As to whether he was asleep upon the track, or awake, there is some conflict in the evidence. But this is not material-for in either case such conduct amounted to negligence per se, which would defeat a recovery by the plaintiff here. It should be observed in this connection, that there is no evidence whatever of the lack of diligence and due care upon the part of those in charge of the train. The plaintiff was lying on the track, parallel with the rails; he was discovered by the engineer and lookout at some distance ahead, but, notwithstanding a continued scrutiny exercised by them, they were unable to discern that the object at which they were looking was other than a bush or some insignificant obstruction upon the track. When they did discover that a child was lying there, they used every endeavor to slow up the train, but it was then too late to prevent the accident by any, even the utmost effort upon their part. Under the circumstances, as now appearing in proof, we are constrained by the settled rules of law, applicable to cases of this character, to hold that the plaintiff ought not to have recovered for the injuries sustained by him. Judgment and order reversed and cause remanded for a new trial. [No. 5189.] LUCE vs. ZEILE. PAROL CONTRACT FOR PAYMENT OF MONEY.-Claimed to be void under Statute of Frauds. STATEMENT OF FACTS. This is an appeal from the judgment of the Court below, and order of the same denying appellant's motion for a new trial thereof, the latter relying in support of his appeal upon the following points: That there are no findings of law or fact to support said judgment-and further, that the evidence is insufficient to justify the verdict and decisions, the same being contrary toʻlaw. It appears from testimony that plaintiff had contracted with one McCormick to thresh wheat on defendant's ranche near Rio Vista and that after working twenty or more days he came to San Francisco to talk to defendant about the work, when he was referred to defendant's brother in relation to the matter, whom he informed that not having been paid by McCormick he would do no more work unless he knew when he was going to get paid for it, when the brother, John Zeile, told him that when the work was done, upon presentation of an order from McCormick for the amount due, he would pay it. Thereupon he finished the work, and procured such order for the whole amount of labor performed under his contract both with McCormick and Zeile. It is alleged that the contract relied upon was a parol contract, to answer in part for the debt of another. Such contract being void under the Statute of Frauds, the Court erred, and defendant claims a new trial. W. M. Stewart and J. W. Carter, attorneys for defendant and appellant. I. S. Taylor, attorney for plaintiff and respondent. OPINION BY THE COURT. It does not appear how much of the claim for which the plaintiff recovered accrued before, or how much accrued after the failure of McCormick, and the alleged conversation had by the plaintiff with Dr. Zeile and John Zeile. Judgment and order denying a new trial reversed, and cause remanded for a new trial. Remittitur forthwith. [No. 5744.] [Filed April 1, 1878.] PULLIAM ET AL. VS. CHEROKEE FLAT BLUE GRAVEL COMPANY. TITLE TO MINING CLAIM.-Held, that filing application for title in U. S. Land Office does not show exercise of control over premises. STATEMENT OF FACTS. In answer to plaintiffs' complaint, the defendant answers with denial of their title and setting up title in itself. On the trial plaintiffs proved location of the ground in 1864 by themselves and others, under whom they held. They also proved that from June, 1870, to February, 1872, they were engaged in running a tunnel, about a thousand feet long, for the purpose of working this and other ground owned by them. Defendant set up title under a sale on execution in 1866, against parties who claimed a location of ground in 1858. Findings and judgment being for defendant,-plaintiff moved for a new trial which was denied, and appeal taken. Belcher & Belcher, attorneys for plaintiffs and appellants. P. O. Hundley and J. M. Burt, attorneys for defendant and respondent. OPINION BY THE COURT. The corporation defendant was permitted, against the objection of the plaintiff, to prove that it had made an application at the United States Land office to obtain the title to the premises in controversy. The avowed purpose of this proof was to show that the defendant had exercised control and dominion over the premises. But the circumstances that such an application had been filed in the Land Office did not tend, even in the most remote degree, to show the exercise by the applicant of control over the premises. Judgment and order denying a new trial reversed, and cause remanded for a new trial. Remittitur forthwith. [No. 5205.] [Filed March 26, 1878.] THE PEOPLE vs. LATHAM. ACTION FOR RECOVERY OF Delinquent Taxes. Provisions of Act of March 28, 1874, resisted on ground of conflict with constitutional provision declaring the uniformity of all laws of a general nature and equality and uniformity of taxation. Held, that by a provision of the State Constitution, the value of the property is not required to be ascertained after the passage of Act fixing rate of taxation. STATEMENT OF FACTS. The State tax levied by the Board of Equalization of the State was fifty cents on the hundred dollars for the twentyfourth and also for the twenty-fifth fiscal years, which tax was declared void and uncollectable by the decision of the Supreme Court in the case of Houghton vs. Austin, 47 Cal., 646, rendered at the January Term, 1874. The Legislature on the 28th of March, 1874, levied the tax for each of the fiscal years, although they had expired, providing that these taxes should have the same force and effect, "as if they had been levied by statute passed, and in force before the commencement of these years," and also validating the assessment books for those years, but prescribing that the tax levied under this act should not be collected from persons who had paid the tax declared unconstitutional by this Court, whose names and property should be excluded from the delinquent list to be made from the original roll,—a penalty of twenty-five per cent being affixed for non-payment of the taxes before the first Monday of July, 1874. The Controller of State was directed to employ counsel in the enforcement of the collection of these taxes, either by civil action, "as such actions are prosecuted on express contracts for the direct payment of money, made and payable in this State,"-" or by actions to enforce the lien of the assessment as mortgage liens are enforced." It is claimed on the part of appellant that this suit was not brought in either of the modes prescribed, and if it were, the Act of March 28, 1874 is unconstitutional and void, being in contravention of section II of Article I of the Constitution, which says: "All laws of a general nature shall have a uniform operation," and is also in direct violation of section 13 of Article 11, which declares that: "Taxation shall be equal and uniform throughout the State," both of which require that taxation shall not only be uniform throughout the State, but that all laws levying general taxes shall be uniform in their operation. While the law before referred to is general, it does not require all persons to pay the taxes which it levies, it being claimed that excusing parties who had voluntarily paid taxes which had never been levied rendered the Act null and void, it being impossible to give validity to a non-existent tax by any legislative enactment. An unconstitutional law being deemed to have no existence upon the statute-books--an unconstitutional tax is one which never has been levied,—— which no officer is vested with a right to collect or tax-payer obliged to pay. It is also claimed on the part of appellants that the Act in question also embraces the concluding portion of section 13 of Article II, which provides that: "All property of this State shall be taxed in proportion to its value, to be ascertained as directed by law." The rule laid down in Reed vs. Omnibus R. R. Co. (33 Cal., 213) is cited as applicable to this case: "A clause in an Act containing an unconstitutional provision, will vitiate the whole Act, if it enter so entirely into the scope and design of the law that it would be impossible to maintain it without the obnoxious provision." The property delinquent was not sold at all, but was returned unsold for want of bidders, whereupon a personal judgment was entered against the defendant for the whole tax, which judgment it is claimed was erroneous in this that the decree did not authorize a personal judgment against Latham until after the sale of the property, and the application of the proceeds thereof,-which sale never occurred. |