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been permitted to be given in evidence, the jury must have been instructed not to include it in their verdict; and the same result was reached more directly, and quite as surely, by wholly excluding from their estimate all such benefits as could be so set off. The petitioner, therefore, has no ground of exception to the rulings and instructions at the trial." So, in Garvey v. Revere (1905) 187 Mass. 545, 73 N. E. 664, wherein it appeared that the land in question was damaged by a change in grade of the street on which it abutted, and the benefits sought to be deducted from the award of damages, which consisted of the laying of a sidewalk and sewer, were made under such circumstances as premitted the municipality to lay a special assessment on the petitioner's land to pay for the cost of the improvement, the court refused to allow the muncipality to set off the benefits resulting from the improvements against the petitioner's claim for damages resulting from the change of grade. And in Atkins v. Boston (1905) 188 Mass. 77, 74 N. E. 292, it was held that the mere failure of a city to levy a benefit assessment, which it might have done, was no more reason for setting off the resulting benefits against the owner's claim for damages, than had such assessment been actually made.

Application of rule.

The reported case (GREGG V. SANDERS, ante, 59) holds that where a part of a tract of land is taken for a public improvement and the remainder of the tract is subject to a special assessment for the cost of the improvement, the benefits accruing to the part of the tract remaining cannot be deducted in determining the damages to be awarded to the owner for the part taken.

The case of State ex rel. Merchant v. District Ct. (1896) 66 Minn. 161, 68 N. W. 860, cited and quoted from at length in the reported case (GREGG v. SANDERS), arose under the provisions of a statute which, after providing for the appointment of the appraisers, continued as follows: They [the appraisers] shall view said property,

and hear all the legal evidence offered by the board [of park commissioners] or any person interested in the property, and shall ascertain and appraise the value thereof, and the amount of benefit or damage to the owner or owners thereof with respect to adjacent property resulting from such taking. The value of the property to be taken and the benefit or damage aforesaid, if any, shall be assessed in separate sums, and said value, adding thereto said damage, or deducting therefrom said benefit, as the case may be, shall be awarded." Section 8 of the same act, authorizing the city to levy special assessments for the special benefit derived from the appropriation of property for park or parkway purposes, provided that "upon acquirement of title by the city, the board of park commissioners shall report to the board of public works the location and cost of the property so acquired, and it shall thereupon be the duty of said board of public works to determine the specific lots, tracts, and parcels of land, if any, specially benefited, and the amount of such special benefit, beyond the general benefit to all real estate in said city derived from such acquirement for park and parkway purposes, and to assess such specially benefited property therefor." It appeared that part of the tract of the petitioner had been taken for a public improvement, and that the cost of the improvement was to be defrayed by a special assessment laid on the property benefited thereby, which included the remainder of the petitioner's land. The action was brought to recover damages for the taking, and the municipality sought to deduct the special benefits to the remainder of the tract from the damages awarded to the petitioner. Holding so much of the statute to be unconstitutional as permitted the taxing of the same benefits which had been deducted from the value of the part taken, the court said: "The vice is in the provision of § 8, that the residue of the land taken shall be taxed for the very benefits which have already been deducted from the value of the part taken, and which, therefore, have never been

actually received by the landowner; thus resulting in unequal taxation. This is, in our opinion, the provision of the statute that must give way; and the proper place to raise it is in the assessment proceedings. If it is sought, under this act, to tax a tract for the same benefits which had been deducted in the condemnation proceedings, the evidence of the latter proceedings would establish a perfect defense; for, under the provisions of § 7, it is provided that, upon confirmation by the court, 'said appraisement and all things contained therein shall thereupon be deemed res judicata;' that is, not only that special benefits have resulted to the adjacent land 'from such taking,' but also as to the amount of such benefits, and the fact that they have been deducted from the value of the land taken."

So, where a tract of land has been damaged, or part of it taken in the construction of a public improvement, and the owner has paid a special assessment based on the benefits to the tract, or the part remaining, such benefits cannot be set off against his award. Bloomington v. Pollock (1892) 141 III. 346, 31 N. E. 146, wherein the court said: "The trial court permitted appellee to prove the amount paid by him as a special tax on his premises for the improvement now in question, and, in respect to the measure of damages, instructed the jury, in substance, that the plaintiff, in the event he proved his case, was entitled to recover the amount that his property was damaged by the raising of the street, less the benefits, if any, that accrued to the property by the making of the improvements; but that, before making such reduction, they should first subtract from the benefits the sum paid by plaintiff as a special tax for the making of such improvement. It is urged that in admitting such evidence and in so instructing the jury there was error. In the opinion in this case delivered in the appellate court by Wall, J., it is said: "The case is one where plaintiff seeks the "just compensation" guaranteed by the Constitution where private property has been damaged for public use. In re

spect to property not taken, but damaged merely, the compensation is the amount of the damage less the benefit conferred. Now, should the benefit be considered without regard to the cost of it to the owner of the property? Manifestly he is not benefited the whole sum of benefit confered, because he has been compelled to pay a certain amount, by way of assessment, in order to obtain whatever benefit is attributable to the improvement. It is the net benefit which should be deducted from the damage produced by the improvement, and the sum remaining will represent the just compensation which he will be entitled to. This will usually be more than the difference in market value. At least it is so theoretically in all cases, for it is presumable that the market value is diminished to the extent of the damages, less the benefit.' We concur in this statement of the law. Where an improvement is made in a street, which works an injury to private property, and no special tax therefor is levied on the property, then the measure of damages is the difference or depreciation in market value, or, that which is the same thing, the damage less the benefit. . But where the improvement so made is paid for, in part, by the owner of the property injured, by way of special taxation, then another element necessarily enters into the computation of the damages to be assessed in favor of such owner, for unless the amount paid in order to secure the benefits set off against damage is taken into consideration and deducted from benefits, by exactly that amount the damages recovered will fall short of being just compensation. We are inclined to think that there was no error in admitting the testimony in question,. and in instructing the jury as above indicated."

To the same effect, and following Bloomington v. Pollock (Ill.) supra, see Widman Invest. Co. v. St. Joseph (1905) 191 Mo. 459, 90 S. W. 763.

Likewise, where a tract of land has been damaged, or a part of it taken in the construction of a public inprovement, and the owner has received an

award of compensation based on the amount of the damage or the value of the land taken, less the benefits accruing to the tract, or the part thereof taken, such benefits cannot subsequently be made the basis of a special assessment. Leopold V. Chicago (1894) 150 Ill. 568, 37 N. E. 892, wherein the court said: "It is clear that the lot owner could not be required to twice pay the special benefits to his property. A rule requiring it would impose an unjust and unequal burden upon the citizen,—an unwarrantable exaction, unauthorized by law; and it therefore follows that the recovery of the special benefits in the condemnation proceeding would estop the city from again imposing the same by way of special assessment upon the property." To the same effect, see Davis v. Newark (1892) 54 N. J. L. 595, 25 Atl. 336.

It appeared in Betts v. Williamsburgh (1853) 15 Barb. (N. Y.) 255, that a part of the plaintiff's land was taken for a street improvement, and that in awarding the compensation the benefits accruing to the remainder of the land were deducted from the damages for the part taken. Subsequently a special assessment, based on the benefits, was laid on the property, which assessment the plaintiff refused to pay, contending that he could not be subsequently taxed for the same benefits which had been deducted from the damages for the part taken. The court said: "The objection that under the Act of 1848 the owners of lands taken for streets might be doubly taxed-first, by the deduction from their actual equivalent of the improved value of their adjoining lands; and, secondly, by the

imposition of an assessment precisely equal to such value-would, if founded in fact, be fatal to its validity, at least in that particular. But clearly such was not the intent, and I think that such is not the appropriate construction, of that act. By the 25th section the assessors are required to apportion and assess the amount of the expenses and the compensation to the owners of the land taken, upon all the persons and land to be benefited by the doing the thing which the trustees have determined to be done, in proportion to the separate benefit or advantage which the same will be to the said persons or lands, upon equitable principles. The assessment is not required to be made exclusively according to the actual improved value of the land, but equitably according to the benefit conferred. Now the actual benefit to an adjoining owner is the increase in the value of his property beyond what the improvement has exacted from him; certainly no more. And equity requires that he should pay the excess, not that he should pay to the entire extent of the improved value when he had already been charged for a part of it. If the value of the improvement should not exceed the amount offset against the value of his land taken, he is not benefited at all, and he could not be assessed for any additional sum according to the terms of the act. The act is certainly susceptible of this exposition, and when the language used will admit of an interpretation essential to its validity it should be adopted, in preference to a construction tending to nullify it."

FRANK MARTON and Wife, Respts.,

V.

W. B. PICKRELL and Wife, Appts.

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

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A. S. M.

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.]

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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 appellants:

A mere accident does not raise any presumption of negligence, nor cast the burden other than upon the person who alleges negligence.

Lewinn v. Murphy, 63 Wash. 356, L.R.A.1917E, 198, 115 Pac. 740, Ann. Cas. 1912D, 433; Anderson v. McCarthy Dry Goods Co. 49 Wash. 398, 16 L.R.A. (N.S.) 931, 126 Am. St. Rep. 870, 95 Pac. 325; Samardege V. Hurley-Mason Co. 72 Wash. 459, 130 Pac. 755.

It was the duty of plaintiff to "seasonably turn to the right."

Brooks v. Hart, 14 N. H. 310; Segerstrom v. Lawrence, 64 Wash. 245, 116 Pac. 876.

The mere fact of the collision does not prove negligence on the part of defendant, and the facts do not disclose one bit of evidence which could be construed as negligence.

Lloyd v. Calhoun, 82 Wash. 35, 143 Pac. 458.

Mr. John L. Dirks, for respondents: Admissions by an injured party that he was at fault have been considered by the courts of but little value.

Zemp v. Wilmington & M. R. Co. 43 S. C. L. (9 Rich.) 84, 64 Am. Dec. 763, 10 Am. Neg. Cas. 225; Binewicz v.

Haglin, 103 Minn. 297, 15 L.R.A. (N.S.) 1096, 115 N. W. 271, 14 Ann. Cas. 225.

It was proper that the jury should be advised that plaintiff's alleged admissions would be binding upon him "only in case he was fully advised of the facts and of the law applicable thereto."

Cooper v. Central R. Co. 44 Iowa, 134. Plaintiff's alleged statement that he thought both of them were to blame was, of course, only an expression of an opinion, in no way binding.

Daub v. Northern P. R. Co. 18 Fed. 625.

Tolman, J., delivered the opinion of the court:

A public highway, with a paved roadway 20 feet wide, known as the "Apple way," runs east from the city of Spokane, and is extensively traveled, during the usual hours, both by vehicles and pedestrians. About 6 o'clock in the evening of January 23, 1919, respondent, with a companion, was walking eastward along this highway towards his home at Opportunity, and at that time of the year it was then quite dark. For a time they traveled along the right side or southerly edge of the pavement, but at that hour the travel

was mostly from Spokane towards the east, and many automobiles approached and passed them from behind, while but few machines were traveling in the opposite direction. Observing this condition, respondent and his companion passed to the north or left side of the paved roadway, and pursued their course along the northerly side of the pavement, the companion walking near the edge, and respondent beside him, some 3 feet from the edge of the pavement. While so proceeding they observed the headlights of appellant's automobile approaching from the east, when, as they estimate the distance, it was about 90 feet from them, and appellant testified that he saw them clearly in the light of an automobile coming from the west, when they were about 125 feet from him. Upon seeing the approaching car, respondent's companion stepped off the pavement to the north, while respondent stepped to the south toward the center of the roadway, intending, as they had done immediately before before when meeting another automobile, to let appellant's car pass between them. As respondent stepped toward the center of the roadway, he continually watched the approaching headlights, and observed that appellant's car also turned toward the center of the roadway as it approached. He then took two quick jumps, as he expresses it, toward the south, to avoid the approaching car, but it also turned still more in the same direction, and he was struck by the right front end of the machine, the collision occurring at a point about midway between the center and south edge of the pavement, and respondent receiving the injuries complained of. From a verdict and judgment against him, appellant brings the case here on appeal.

A challenge to the sufficiency of the evidence was interposed at the close of plaintiff's case, and overruled, and at the close of the entire case the motion was renewed, and again denied. The same question was raised by a motion for judgment non obstante veredicto.

Appellant bases his argument in support of this point upon the assumption sumption that that respondent was prima facie guilty of negligence in being upon the left side of the paved roadway. In this we think he overlooks the fact that our statutes, generally referred to as "the law of travel" and "the rule of the road," have reference to vehicles, and those riding or driving animals upon a public highway, and Highway-duty nowhere in express of pedestrianterms, or by necessary implication, we think, do they refer to pedestrians. It is a matter of common knowledge that a pedestrian on a highway, or on a doubletrack line of railway, is far better able to look out for his own safety and protection by so traveling as to face all oncoming vehicles than he would be if keeping to the same side of the roadway as vehicular traffic, and being thus at all times obliged to keep watch to the

rear.

place on road.

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