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been permitted to be given in evidence, and hear all the legal evidence offered the jury must have been instructed by the board [of park commissioners] not to include it in their verdict; and or any person interested in the propthe same result was reached more erty, and shall ascertain and appraise directly, and quite as surely, by the value thereof, and the amount of wholly excluding from their estimate benefit or damage to the owner or all such benefits as could be so set owners thereof with respect to adjaoff. The petitioner, therefore, has no cent property resulting from such ground of exception to the rulings taking. The value of the property to and instructions at the trial.” So, in be taken and the benefit or damage Garvey V. Revere (1905) 187 Mass. aforesaid, if any, shall be assessed in 545, 73 N. E. 664, wherein it appeared separate sums, and said value, adding that the land in question was damaged thereto said damage, or deducting by a change in grade of the street on therefrom said benefit, as the case may which it abutted, and the benefits be, shall be awarded." Section 8 of sought to be deducted from the award the same act, authorizing the city to of damages, which consisted of the levy special assessments for the laying of a sidewalk and sewer, were special benefit derived from the apmade under such circumstances as propriation of property for park or premitted the municipality to lay a parkway purposes, provided that special assessment on the petitioner's “upon acquirement of title by the city, land to pay for the cost of the im the board of park commissioners shall provement, the court refused to allow report to the board of public works the the muncipality to set off the benefits location and cost of the property so resulting from the improvements acquired, and it shall thereupon be the against the petitioner's claim for dam duty of said board of public works to ages resulting from the change of determine the specific lots, tracts, and grade. And in Atkins v. Boston parcels of land, if any, specially ben(1905) 188 Mass. 77, 74 N. E. 292, it efited, and the amount of such special was held that the mere failure of a benefit, beyond the general benefit to city to levy a benefit assessment, all real estate in said city derived from which it might have done, was no more such acquirement for park and parkreason for setting off the resulting way purposes, and to assess such benefits against the owner's claim for specially benefited property therefor." damages, than had such assessment It appeared that part of the tract of been actually made.

the petitioner had been taken for a Application of rule.

public improvement, and that the cost The reported case (GREGG V. SAN

of the improvement was to be defrayed DERS, ante, 59) holds that where a

by a special assessment laid on the part of a tract of land is taken for a

property benefited thereby, which in

cluded the remainder of the petitionpublic improvement and the remainder of the tract is subject to a special as

er's land. The action was brought to sessment for the cost of the improve

recover damages for the taking, and ment, the benefits accruing to the part

the municipality sought to deduct the of the tract remaining cannot be de

special benefits to the remainder of ducted in determining the damages to

the tract from the damages awarded be awarded to the owner for the part

to the petitioner. Holding so much of taken.

the statute to be unconstitutional as The case of State ex rel. Merchant

permitted the taxing of the same bene

fits which had been deducted from the v. District Ct. (1896) 66 Minn. 161, 68 N. W. 860, cited and quoted from at

value of the part taken, the court length in the reported case (GREGG v.

said: “The vice is in the provision of SANDERS), arose under the provisions

§ 8, that the residue of the land taken of a statute which, after providing for

shall be taxed for the very benefits che appointment of the appraisers, which have already been deducted continued as follows: They (the ap from the value of the part taken, and praisers] shall view said property, which, therefore, have never been

actually received by the landowner; spect to property not taken, but damthus resulting in unequal taxation. aged merely, the compensation is the This is, in our opinion, the provision of amount of the damage less the benefit the statute that must give way; and conferred. Now, should the benefit the proper place to raise it is in the be considered without regard to the assessment proceedings. If it is cost of it to the owner of the propersought, under this act, to tax a tract ty ? Manifestly he is not benefited for the same benefits which had been the whole sum of benefit confered, bededucted in the condemnation pro cause he has been compelled to pay ceedings, the evidence of the latter a certain amount, by way of assessproceedings would establish a perfect ment, in order to obtain whatever defense; for, under the provisions of benefit is attributable to the improve§ 7, it is provided that, upon confir ment. It is the net benefit which mation by the court, 'said appraise should be deducted from the damage ment and all things contained therein produced by the improvement, and the shall thereupon be deemed res judi sum remaining will represent the just cata;' that is, not only that special compensation which he will be entitled benefits have resulted to the adjacent to. This will usually be more than land 'from such taking, but also as to the difference in market value. At the amount of such benefits, and the least it is so theoretically in all cases, fact that they have been deducted for it is presumable that the market from the value of the land taken." value is diminished to the extent of

So, where a tract of land has been the damages, less the benefit.' damaged, or part of it taken in the We concur in this statement of the law. construction of a public improvement, Where an improvement is made in a and the owner has paid a special as street, which works an injury to sessment based on the benefits to the private property, and no special tax tract, or the part remaining, such therefor is levied on the property, benefits cannot be set off against his then the measure of damages is the award. Bloomington v. Pollock (1892) difference or depreciation in market 141 Ill. 346, 31 N. E. 146, wherein the value, or, that which is the same thing, court said: “The trial court permitted the damage less the benefit. appellee to prove the amount paid by But where the improvement so made him as a special tax on his premises is paid for, in part, by the owner of the for the improvement now in question, property injured, by way of special and, in respect to the measure of dam taxation, then another element necesages, instructed the jury, in substance, sarily enters into the computation of that the plaintiff, in the event he the damages to be assessed in favor proved his case, was entitled to recov of such owner, for unless the amount er the amount that his property was paid in order to secure the benefits damaged by the raising of the street, set off against damage is taken into less the benefits, if any, that accrued consideration and deducted from to the property by the making of the benefits, by exactly that amount the improvements; but that, before making damages recovered will fall short of such reduction, they should first sub being just compensation. We are intract from the benefits the sum paid

clined to think that there was no error by plaintiff as a special tax for the in admitting the testimony in question, making of such improvement. It is and in instructing the jury as above urged that in admitting such evidence indicated.” and in so instructing the jury there To the same effect, and following was error. In the opinion in this case Bloomington v. Pollock (Ill.) supra, delivered in the appellate court by see Widman Invest. Co. v. St. Joseph Wall, J., it is said: “The case is one (1905) 191 Mo. 459, 90 S. W. 763. where plaintiff seeks the "just com Likewise, where a tract of land has pensation" guaranteed by the Con been damaged, or a part of it taken in stitution where private property has

the construction of a public inprovebeen damaged for public use. In re ment, and the owner has received an

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award of compensation based on the imposition of an assessment precisely amount of the damage or the value of equal to such value-would, if foundthe land taken, less the benefits accru ed in fact, be fatal to its validity, at ing to the tract, or the part thereof least in that particular. But clearly taken, such benefits cannot subse such was not the intent, and I think quently be made the basis of a special that such is not the appropriate conassessment. Leopold Chicago struction, of that act. By the 25th (1894) 150 Ill. 568, 37 N. E. 892, section the assessors are required to wherein the court said: “It is clear apportion and assess the amount of the that the lot owner could not be re expenses and the compensation to the quired to twice pay the special benefits owners of the land taken, upon all the to his property. A rule requiring it

persons and land to be benefited by would impose an unjust and unequal the doing the thing which the trustees burden upon

the citizen,-an un have determined to be done, in prowarrantable exaction, unauthorized portion to the separate benefit or by law; and it therefore follows that advantage which the same will be to the recovery of the special benefits in the said persons or lands, upon equitthe condemnation proceeding would able principles. The assessment is estop the city from again imposing not required to be made exclusively the same by way of special assessment according to the actual improved upon the property." To the same value of the land, but equitably aceffect, see Davis v. Newark (1892) 54 cording to the benefit conferred. Now N. J. L. 595, 25 Atl. 336.

the actual benefit to an adjoining It appeared in Betts v. Williams owner is the increase in the value of burgh (1853) 15 Barb. (N. Y.) 255, his property beyond what the improvethat a part of the plaintiff's land was ment has exacted from him; certainly taken for a street improvement, and no more. And equity requires that he that in awarding the compensation the should pay the excess, not that he benefits accruing to the remainder of should pay to the entire extent of the the land were deducted from the dam improved value when he had already ages for the part taken. Subsequently been charged for a part of it. If the a special assessment, based on the value of the improvement should not benefits, was laid on the property, exceed the amount offset against the which assessment the plaintiff re.

value of his land taken, he is not benefused to pay, contending that he

fited at all, and he could not be ascould not be subsequently taxed for

sessed for any additional sum acthe same benefits which had been de

cording to the terms of the act. The ducted from the damages for the part taken. The court said: “The objec

act is certainly susceptible of this tion that under the Act of 1848 the

exposition, and when the language owners of lands taken for streets

used will admit of an interpretation might be doubly taxed-first, by the

essential to its validity it should be deduction from their actual equiva, adopted, in preference to a construclent of the improved value of their tion tending to nullify it." adjoining lands; and, secondly, by the

A. S. M.

FRANK MARTON and Wife, Respts.,


W. B. PICKRELL and Wife, Appts.

Washington Supreme Court (Dept. No. 2) - August 9, 1920.

(112 Wash. 117, 191 Pac. 1101.) Highway - duty of pedestrian — place on road.

1. A pedestrian is not as matter of law, in the absence of statutory

(112 Wash, 117, 191 Pac. 1101.) requirement, bound to keep on the right side of the road in passing vehicles.

[See note on this question beginning on page 71.] Trial question for jury negli accident was his own fault, is a mere gence of pedestrian.

conclusion and susceptible of expla2. The jury must determine the nation. questions of relative negligence in [See 1 R. C. L. 474.] case of collision between an automo- Appeal

Appeal — presumption of error in inbile and a pedestrian who was walking struction. along the extreme left of the road.

5. Since everyone is presumed to [See 13 R. C. L. 296–298.]

know the law, the jury cannot, in the Appeal – favorable instruction

absence of anything in the record so complaint.

to indicate, be held to have been mis3. A party cannot complain of an

led by an instruction that an admisinstruction in his favor.

sion of fault of one in collision with

an automobile must be considered in [See 2 R. C. L. 237, 238.]

the light of all the circumstances, and Evidence admission of fault in would be binding upon him only in collision.

case he was fully advised as to all the 4. An admission by one injured in facts and as to the law applicable collision with an automobile, that the thereto.


APPEAL by defendants from a judgment of the Superior Court for Spokane County (Huneke, J.) in favor of plaintiffs in an action brought to recover damages for personal injuries caused by a collision with defendant's automobile. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Lee & Kimball, for appel- Haglin, 103 Minn. 297, 15 L.R.A.(N.S.) lants:

1096, 115 N. W. 271, 14 Ann. Cas. 225. A mere accident does not raise any It was proper that the jury should presumption of negligence, nor cast be advised that plaintiff's alleged adthe burden other than upon the per missions would be binding upon him son who alleges negligence.

"only in case he was fully advised of Lewinn v. Murphy, 63 Wash. 356, the facts and of the law applicable L.R.A.1917E, 198, 115 Pac. 740, Ann. thereto.” Cas. 1912D, 433; Anderson v. Mc Cooper v. Central R. Co. 44 Iowa, 134. Carthy Dry Goods Co. 49 Wash. 398, Plaintiff's alleged statement that he 16 L.R.A.(N.S.) 931, 126 Am. St. Rep. thought both of them were to blame 870, 95 Pac. 325; Samardege was, of course, only an expression of Hurley-Mason Co. 72 Wash. 459, 130 an opinion, in no way binding. Pac. 755.

Daub v. Northern P. R. Co. 18 Fed. It was the duty of plaintiff to "sea 625. sonably turn to the right."

Tolman, J., delivered the opinion Brooks v. Hart, 14 N. H. 310; Seger- of the court: strom v. Lawrence, 64 Wash. 245, 116

A public highway, with a paved Pac. 876.

roadway 20 feet wide, known as the The mere fact of the collision does not prove negligence on the part of de

“Apple way," runs east from the city fendant, and the facts do not disclose of Spokane, and is extensively travone bit of evidence which could be eled, during the usual hours, both construed as negligence.

by vehicles and pedestrians. About Lloyd v. Calhoun, 82 Wash. 35, 143 6 o'clock in the evening of January Pac. 458.

23, 1919, respondent, with a comMr. John L. Dirks, for respondents: panion, was walking eastward along

Admissions by an injured party that this highway towards his home at he was at fault have been considered Opportunity, and at that time of the by the courts of but little value. year it was then quite dark.

Zemp v. Wilmington & M. R. Co. 43 time they traveled along the right S. C. L. (9 Rich.) 84, 64 Am. Dec. 763, side or southerly edge of the pave10 Am. Neg. Cas. 225; Binewicz v. ment, but at that hour the travel

For a

was mostly from Spokane towards Appellant bases his argument in the east, and many automobiles ap support of this point upon the asproached and passed them from be- sumption that respondent was hind, while but few machines were prima facie guilty of negligence in traveling in the opposite direction. being upon the left side of the paved Observing this condition, respond- roadway. In this we think he overent and his companion passed to the looks the fact that our statutes, gennorth or left side of the paved road erally referred to as "the law of way, and pursued their course along travel” and “the rule of the road,” the northerly side of the pavement, have reference to vehicles, and those the companion walking near the riding or driving animals upon a edge, and respondent beside him, public highway, and

Highway-duty some 3 feet from the edge of the nowhere in express of pedestrian

place on road. pavement. While so proceeding terms, or by necesthey observed the headlights of ap sary implication, we think, do they pellant's automobile approaching refer to pedestrians. It is a matter from the east, when, as they esti of common knowledge that a pedesmate the distance, it was about 90 trian on a highway, or on a doublefeet from them, and appellant tes track line of railway, is far better tified that he saw them clearly in the able to look out for his own safelight of an automobile coming from ty and protection by so traveling the west, when they were about 125 as to face all oncoming vehicles feet from him. Upon seeing the ap than he would be if keeping to the proaching car, respondent's com same side of the roadway as vehicpanion stepped off the pavement to ular traffic, and being thus at all the north, while respondent stepped times obliged to keep watch to the to the south toward the center of rear. the roadway, intending, as they had Nor does the statute require any done immediately before when user of the highway to keep to the meeting another automobile, to let right in traveling, but covers only appellant's car pass between them. the meeting and passing of traffic. As respondent stepped toward the At any rate, in the absence of a center of the roadway, he continual- clear statutory rule applying to ly watched the approaching head- pedestrians, the question is one for lights, and observed that appellant's the jury. Under the facts shown by car also turned toward the center of the record it was for the jury to say the roadway as it approached. He whether or not appellant used the then took two quick jumps, as he necessary degree of

care to avoid the ac- for jury

Trial-question expresses it, toward the south, to avoid the approaching car, but it al- cident, and whether negligence of

pedestrian. so turned still more in the same or not respondent direction, and he was struck by the was guilty of contributory negliright front end of the machine, the gence. collision occurring at a point about What has just been said clearly midway between the center and indicates that if there was a seemsouth edge of the pavement, and re ing conflict between the instruction spondent receiving the injuries com which applied the rule of the road plained of. From a verdict and to pedestrians and the instruction judgment against him, appellant which placed the burden of proving brings the case here on appeal. contributory negli

A challenge to the sufficiency of gence upon the de- Appeal. the evidence was interposed at the fendant, upon the instructionclose of plaintiff's case, and over- giving of which erruled, and at the close of the entire ror is assigned, the latter instruction case the motion was renewed, and was clearly right, and the appellant again denied. The same question has no cause to complain of the was raised by a motion for judg- former. ment non obstante veredicto.

An instruction was given which

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