Where assessment or contract is totally void. By the weight of authority, payment or tender of payment of an amount equal to the benefit derived is not necessary in order to secure relief in equity by an injunction to restrain the collection of an assessment on property for a local improvement, where the assessment or contract under which the improvement is made is totally void. United States.-Norwood v. Baker (1898) 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187; Bidwell v. Huff (1900; C. C.) 103 Fed. 362; Zehnder v. Barber Asphalt Paving Co. (1901; D. C.) 106 Fed. 103. California.-Woollacott v. Meekin (1907) 151 Cal. 701, 91 Pac. 612; Chase v. Los Angeles (1898) 122 Cal. 540, 55 Pac. 414. Colorado.-Denver v. State Invest. Co. (1911) 49 Colo. 244, 33 L.R.A. (N.S.) 395, 112 Pac. 789. Indiana. Southern R. Co. v. Huntingburgh (1924) 81 Ind. App. 279, 143 N. E. 294. Iowa.-Iowa Pipe & Tile Co. v. Callanan (1904) 125 Iowa, 358, 67 L.R.A. 408, 106 Am. St. Rep. 311, 101 N. W. 141, 3 Ann. Cas. 7. Kansas.-Union P. R. Co. v. Kansas City (1914) 92 Kan. 487, 141 Pac. 302; Watts v. Winfield (1917) 101 Kan. 470, 168 Pac. 319. - New York. Hassan v. Rochester (1876) 67 N. Y. 528. Oklahoma. Jones v. Holzapfel (1902) 11 Okla. 405, 68 Pac. 511. Oregon.-Ladd v. Spencer (1892) 23 Or. 193, 31 Pac. 474; Hawthorne v. East Portland (1886) 13 Or. 271, 10 Pac. 342. Texas. Kerr v. Corsicana (1895) Wisconsin. Baker (U. S.) supra, it is said by the court: "Nor is the present case controlled by the general principle announced in many cases, that a court of equity will not relieve a party against an assessment for taxation unless he tenders or offers to pay what he admits or what is seen to be due. . . The present case is not one in which—as in most of the cases brought to enjoin the collection of taxes or the enforcement of special assessments-it can be plainly or clearly seen, from the showing made by the pleadings, that a particular amount, if no more, is due from the plaintiff, and which amount should be paid or tendered before equity would interfere. It is rather a case in which the entire assessment is illegal. In such a case it is not necessary to tender, as a condition of relief being granted to the plaintiff, any sum as representing what she supposed, or might guess, or was willing to concede, was the excess of cost over any benefits accruing to the property. She was entitled, without making such a tender, to ask a court of equity to enjoin the enforcement of a rate of assessment that infringed upon her constitutional rights." In Denver v. State Invest. Co. (Colo.) supra, it is said: "As there can be no obligation to pay until there is a legal assessment, the doctrine of tender before suit brought has no application. No one is under obligation to pay, or tender payment, until there be something due. This is not a case where the procedure was lawfully followed, and the authority exceeded by an excessive assessment, but it is a case showing such a departure from the prescribed procedure that the assessment attempted to be made had no validity as against the property of plaintiffs." And in Jones v. Holzapfel (Okla.) supra, it is said: "The rule is well established not only in all of the state courts so far as we have been able to see the decisions, but also clearly announced by the Supreme Court of the United States, that no one will be entitled to relief in equity to enjoin the collection of an assessment until he shall have shown that he meant to The do equity by paying such portion of the taxes assessed against him as it can be clearly seen that he ought to pay, and that the owner of property will not be permitted to refuse the payment of a total assessment where it is clear that he ought to pay a part, and where it can be seen what that part is. He must first pay what is thus clearly due, and not, while some. portion of the tax is manifestly due, embarrass the operation of government or any of its subordinate agencies, such as a municipal corporation, and thus throw the burden of public improvements upon either the corporation itself, or upon those who have expended their money to the benefit of his property. But it has been explicitly held by the Supreme Court of the United States that this rule has no application to a case where the entire tax fails by reason of an illegal assessment, and that in such case the assessment may be enjoined without the payment or tender of any portion of the tax, since it is impossible for the court to determine what portion is actually due." A modification of the general rule is announced in the Indiana case of Prezinger v. Harness (1888) 114 Ind. 491, 16 N. E. 495, where the court says: "The authorities fully justify the statement that, where an improvement is made under color of statutory proceedings, unless such proceedings are so totally and palpably void as that the person who made the improvement or performed the work must have proceeded with a degree of recklessness that amounted to bad faith, the property owner who stood by and received the benefits assessed against his property will be estopped to assert the invalidity of the proceedings, without first paying or offering to pay the benefits. A suit like this is essentially of an equitable character, and, in equity, whatever a party's rights may have been in the beginning, if he has stood by and acquiesced until the rights of others have intervened, he will be deemed to have made an effectual election to waive any and all irregularities that may have arisen during the progress of the proceedings under which rights have been acquired." Estoppel. But in the case to which this annotation is appended (MONTGOMERY V. ATLANTA, ante, 233), and Pittsburgh's Appeal (1888) 118 Pa. 458, 12 Atl. 366, relief by injunction was denied against a totally void assessment or contract, on the ground of estoppel, the courts holding that a property owner who stands by and sees improvements made to his property, and makes no objection to them until after a tax is assessed against him, cannot secure relief in equity against the tax, without first tendering or paying an amount equal to the benefit to his property, even though the assessment proceedings or contract be illegal. In the reported case (MONTGOMERY v. ATLANTA) the court says: "Many of the plaintiffs in this case have petitioned to have this street improvement made, and all of them knew, or by the exercise of ordinary diligence could have known, of the existence of the facts which render this ordinance and contract invalid, and could have taken legal proceedings to prevent the performance of the contract and the expenditure of a large sum of money thereunder in making these improvements;" and, under these circumstances, holds that relief from the assessment can be had in equity only upon condition that the property owners do equity by paying for the benefit their property received by the improvement. And in two other cases in which injunctions restraining the collection of void assessments were granted, the court indicates in the opinions that the property owner, by his conduct, might estop himself from relief. In Ladd v. Spencer (1892) 23 Or. 193, 31 Pac. 474, supra, the court says: "It is urged by appellants that in equitable proceedings the owner of property benefited by the improvement of a street adjoining his property should first tender the amount of the benefits before he could be heard to complain. Where the owner has, without objection, quietly permitted the improvements to be made, he would be es topped by his own act. It is in cases of equitable estoppel only where the owner has encouraged the improvements, that he would be obliged to tender the amount of benefits received." But in this case the respondent objected by a written protest at the inception of the proceedings, and it cannot be said that he encouraged the improvement. And in Hawthorne v. East Portland (1886) 13 Or. 271, 10 Pac. 342, supra, the court says: "It is a fundamental principle of equity that a party who encourages an improvement of the character of the one in question to be made, and from which he derives a benefit, shall not be allowed thereafter to question its legality; that it will not afford him any remedy under any circumstances. That doctrine is maintained by numerous authorities, but they all proceed upon the ground of an equitable estoppel. None of them go far enough to defeat the remedy of a party to have proceedings. enjoined in such case, upon the mere ground that the improvement has been beneficial to his property. They apply to cases where the party has, by some act, consented to the improvement resulting in the assessment." J. P. M. IRVIN C. TICKNOR, Respt., V. SEATTLE-RENTON STAGE LINE et al., Appts. Washington Supreme Court (In Banc) -June 22, 1926. (-Wash. 247 Pac. 1.) Highways, § 70- ordinance forbidding collision in driving vehicle-validity. 1. A municipal ordinance forbidding any person to drive or operate any vehicle so as to collide, with any animal or vehicle or street car or strike, against any person or property, is void. [See annotation on this question beginning on page 255.] Appeal, § 640 erroneous instruc tion cure by other instructions. 2. Error in instructing the jury, in an action to recover for injuries caused by collision with an automobile, that violation of a municipal ordinance forbidding collision with person or property would constitute negligence, is cured by further instructions that the fact of an accident taking place does not raise the presumption of negligence, that defendant would not be liable if the injury was a mere accident, and the fact that a child receives injury from an automobile is not of itself any evidence of negligence. [See 14 R. C. L. 812; 3 R. C. L. Supp. 295; 4 R. C. L. Supp. 921; 5 R. C. L. Supp. 780; 6 R. C. L. Supp. 834.] Appeal, § 818-correction of erroneous instruction. 3. Instructions must be considered as a whole, and, if a portion standing alone may be technically erroneous and have a tendency to confuse and mislead the jury, it will not constitute prejudicial error if, when taken in connection with other instructions given, the jury could not have been misled as to the principles of law applicable to the issues. [See 14 R. C. L. 817 et seq.; 3 R. C. L. Supp. 298; 4 R. C. L. Supp. 922; 5 R. C. L. Supp. 781; 6 R. C. L. Supp. 834.] Judgment, § 17 non obstante veredicto when proper. - 4. If evidence upon the issues made by the pleadings is sufficient to take the case to the jury, the court cannot enter judgment notwithstanding the verdict. [See 15 R. C. L. 607.] New trial, § 78 reduce verdict. power of court to 5. It is within the discretion of the trial judge to require acceptance of a APPEAL by defendants from a judgment of the Superior Court for King County (Tallman, J.) in favor of plaintiff in an action brought to recover damages for the death of his minor son alleged to have been caused by defendants' negligence. Affirmed. The facts are stated in the opinion of the court. Messrs. Van Dyke & Thomas, for appellants: It was error to instruct that violation of certain provisions of the ordinance would constitute negligence for which defendant would be liable. Horney v. Giering, 132 Wash. 555, 231 Pac. 958. There is not sufficient evidence of a showing of the value of the boy's services to justify the amount of the recovery allowed by the court. Blair v. Kilbourne, 121 Wash. 93, 207 Pac. 953; Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 11 L.R.A. 689, 26 Am. St. Rep. 842, 25 Pac. 1072. Mr. John A. Homer, for respondent: The case was one in which the verdict of the jury is conclusive. Tecker v. Seattle, R. & S. R. Co. 60 Wash. 570, 111 Pac. 791, Ann. Cas. 1912B, 842; 29 Cyc. 558; Ódalovich v. Weir, 132 Wash. 57, 231 Pac. 170; Woodruff v. Ewald, 131 Wash. 285, 230 Pac. 149; Benson v. Anderson, 129 Wash. 19, 223 Pac. 1063. The instruction to the effect that violation of the terms of the ordinance was negligence of itself was proper. State v. Randall, 107 Wash. 695, 182 Pac. 575; State v. Lantz, 26 A.L.R. 894, and note on p. 897, 90 W. Va. 738, 111 S. E. 766; Gallaher v. State, 193 Ind. 629, 29 A.L.R. 1059, 141 N. E. 347; Hood & W. Furniture Co. v. Royal, 200 Ala. 607, 76 So. 965; Solan v. Pasche, Tex. Civ. App. —, 153 S. W. 672; Strickland v. Whatley, 142 Ga. 802, 83 S. E. 856; Quarles v. Gem Plumbing Co. 18 Ga. App. 592, 90 S. E. 92. Instructions should be read as a whole, and, even though parts may be technically in error, if as a whole they correctly express the law, and no prejudice is shown, a new trial will not be granted. Lee v. Independent Dairy, 127 Wash. 622, 221 Pac. 309; Atkeson v. Jackson Estate, 72 Wash. 233, 130 Pac. 102; Stowe v. La Conner Trading & Transp. Co. 39 Wash. 28, 80 Pac. 856, 81 Pac. 97; McDorman v. Dunn, 101 Wash. 120, 172 Pac. 244; Farnandis v. Seattle, 95 Wash. 587, 164 Pac. 225. The judgment as to the amount of recovery should be allowed to stand. Kranzusch v. Trustee Co. 93 Wash. 629, 161 Pac. 492. Mitchell, J., delivered the opinion of the court: Respondent brought this action against appellants and the city of Seattle to recover damages for the death of his minor son, age 7 years. The city was dismissed out of the case. There was a verdict for the respondent in the sum of $5,000, upon consideration of which the trial court required a deduction to $3,500, else a new trial would be granted. Respondent elected to take the reduced amount, and, from a judgment thereon, this appeal has been taken by the defendants. The collision occurred at a street intersection in the city of Seattle. The issues presented by the pleadings were negligence on the part of the driver of the automobile stage and counter charges of contributory negligence on the part of the respondent, the father of the boy. The traffic ordinance of the city was pleaded by both sides, and in the complaint it was alleged that the injuries were caused by the violation of a number of the provisions of the ordinance by the driver of the stage. Those particular sections of the ordinance were set out in full in the complaint. Evidence on behalf of the respondent was introduced in support of the several charges of negligence, including excessive speed and failure to give any signal or warning of the approach of the stage. In one of the instructions to the jury, the ordinance was referred to with respect to the several provisions involved under the complaint and proof, all of which provisions were recited in full in the instructions. Among them was § 43, which, for the purposes of this case, provides that no person shall drive or operate any vehicle ". . so as to collide with any animal or vehicle or street car or strike against any person or property." Then followed in the instructions a statement of the general rule that the violation of these provisions of the ordinance would constitute negligence for which the stage line company would be liable if the jury found that such negligence was the proximate cause of the injury. It was the use of the words just above quoted that appellants assign as reversible error, and, in support of the assignment, rely on the case of Horney v. Giering, 132 Wash. 555, 231 Pac. 958, the decision in which case was filed in this court a few days after the jury returned their verdict in the present case. Highways— ordinance forbidding collision in driving vehicle-valid In the Horney v. Giering Case, in construing this language of this same ordinance, we held that it was reversible error to instruct that it is of itself negligence to violate this provision of the ordinance, holding that the ordinance was void in that particular. With that decision we are still content. But a reading of the opinion in that case fails to disclose that in any of the other instructions anything was said tending to better the effect or lessen the force of the offending language, in the ascertainment of the ity. ultimate inquiry of whether or not the jury was misled by it. This case is different in ous instruction that respect. Here Appeal-erronethe jury, in an in- cure by other struction following instructions. the one complained of, was told: "Drivers upon highways and streets in law are not held as insurers against accident arising from negligence of children or their parents, and, while a child may be of such tender years and lack of comprehension of danger as not to be capable in law of committing negligence or contributory negligence, the fact of an accident taking place does not establish liability or raise the presumption that the owner or driver of a motor vehicle is negligent." In this connection it may be stated that the vice in the instruction as pointed out in the Horney v. Giering Case was "the provision of the ordinance, if given effect, would make the operator of an automobile an insurer of the safety of pedestrians upon the street, aside from the question of contributory negligence." In the present case the jury was also advised: "If you believe from all the evidence and under all the instructions of the court that the injury to plaintiff's son was what is known as a 'mere accident'—that is, that no one was negligent, and that no one was to blame-then your yerdict should be for the defendants." It was further told: "And the fact that a child may receive injury from an automobile stage is not of itself any evidence of negligence against the one driving the stage." There are still other instructions tending to show that the technically erroneous statement complained of, immediately commingled or grouped with many others entirely correct, could not have misled the jury into the vice of the instruction complained of as would have been the case had that instruction stood alone. The situation is one that calls for the application of the rule announced in the case of McDorman v. Dunn, 101 Wash. 120, 172 Pac. 244, as follows: "It is the settled |