(203 P.)

3. Negligence 136 (28)-Contributory negli- Morris B. Sachs, of Seattle, for appellants. gence in emergency jury question. Glenn C. Beechler, of Seattle, for respondents.

It is alleged that both mother and daughter were injured, and that some of their clothing was damaged. For the injuries to the mother and for medical attention $625 is claimed, and for damage to her clothing $125; for the daughter, the father, acting as guardian ad litem, demanded $720 for her injuries and $30 for damages to her clothing.

Answers in both cases deny the negligence charges, deny that Ida M. Carlson was using due care, and deny the injuries, damage, and loss alleged to have been sustained by the parties.

By way of affirmative answer and affirmative defense, appellants plead contributory negligence of respondent, the mother, as the proximate cause of the accident which resulted in the injuries, loss, and damage, if any. By reply the defense of contributory negligence is denied.

By stipulation of the parties the court

Appeal from Superior Court, King Coun-ordered the two cases consolidated for trial, ty; Calvin S. Hall, Judge.

Actions by Albert R. Carlson and wife and by Ethel Anna Carlson, by Albert R. Carl- The first claim of error urged by appellants son, her guardian ad litem, against George is upon the refusal of the court to grant W. Herbert and another, were consolidated their motion made at the close of respondfor trial, and separate verdicts were re-ents' case for nonsuit and dismissal of the turned, awarding $750 in each case, and the two actions. It is claimed that the evidence defendants appeal. Judgments affirmed. shows that respondent Ida M. Carlson was

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

The court did not err, therefore, in denying the motions for nonsuit and to dismiss the actions, but would have erred had it granted them. And for the same reasons the court did not err in denying the motions for directed verdicts, and for judgments notwithstanding the verdicts.

[4] Some argument is made by appellants to the effect that, in view of the court instructing the jury that contributory negligence could not be pleaded against an infant of the age of five years, the court should have granted appellant's request for an instruction that, if the jury should find from the evidence that at the time and place mentioned the plaintiff, minor child, was in the care and custody of her mother, and that at that time the accident and resulting injury were due to the carelessness and negligence of the mother, and were not due to the carelessness and negligence, as pleaded in the complaint, of the defendants in the case, the verdict should be for the defendants.

guilty of negligence in the premises, which, prudence is, under all of the authorities, a was the proximate cause of and contributed question of fact for the jury. The law does to the accident. not scrutinize too carefully an act done by [1] As usual in such cases, there is a con- one who has been put in a position of danger flict in the evidence; we are bound, how- by the one who inflicts the injury upon him, ever, to accept the verdict of the jury upon leaving it for the jury to say under such the conflicting evidence as conclusive upon circumstances whether the act in seeking to all questions properly submitted to the jury. avoid the danger was the act of an ordinariThe facts, as shown by respondents, are: ly prudent man. Sheffield v. Union Oil Co., That the accident occurred between 5 and 682 Wash. 386, 144 Pac. 529; Lindstrom v. o'clock in the evening on December 10, 1919. Seattle Taxicab Co., 199 Pac. 289. Respondent Ida M. Carlson was walking west on the south side of Virginia street, and started to cross the intersection of this street with Westlake avenue. She had her infant daughter, five years of age, who is plaintiff in the other consolidated case. Ap pellant Herbert was driving his car north on Westlake avenue at a speed, as fixed by some of the witnesses, of between 25 and 30 miles per hour. The pavement was slippery, being covered with snow and ice. The street "slanted" or sloped somewhat. As he ap proached respondents at the intersection, Mrs. Carlson, holding her child by the hand, had started from the sidewalk to cross the street. She looked in all directions to see if a car was coming. She did not see the Herbert car when she stepped off the side walk. She first caught sight of the Herbert car when he was trying to pass another car, and was coming at such a fast rate of speed that it (the Herbert car) seemed quite a little distance, and she thought she would have plenty of time to cross over, but he came back of this other car and swerved. He swerved first toward the other side of the street, and then swerved toward her. By the other side of the street she meant the west side of the street, toward which he first swerved, and then he swerved back toward the east side of the street and struck respondents. She further testified that when she first saw Herbert's car she knew if she Appellants concede that we have estabwent ahead she would get hit, and thought|lished the rule that "negligence of the parent if she stepped back she would miss him, or cannot be imputed to the child in an action he would miss her, but he swerved in very brought for the benefit of the child, and not close to the curb of the sidewalk that she for the benefit of the mother" (Gregg v. King had just left. The lights on the Herbert | County, 80 Wash. 196, 141 Pac. 340, Ann. Cas. car were bright and blinding. After the col-1916C, 135), but contend that none of the lision with respondents, Herbert's car skidded from the southeast corner of the intersection entirely across to the northeast corner, which was shown to be a distance of 145 feet. Mrs. Carlson was dragged or pulled under the car that entire distance, and got out from under the car when it came to a stop. Mrs. Carlson was corroborated by other witnesses, some of whom saw the Herbert car up the street a distance of 125 or 150 feet, traveling very fast, and first swerving toward the center of the street and then swerving back toward the curb.

[2, 3] Under such circumstances the law is that, being in imminent danger, an emergency is presented, and whether under this emergency the respondent acted with due

This request the court denied, for the reason stated that, if there was no negligence on the part of defendant Herbert in the action, then there could be no recovery in any event. Upon the evidence in support of the cases of respondents, as summarized herein, the jury resolved them as showing negligence of appellant Herbert.

cases decided by us have gone so far as to hold that a child could recover in a case in which the negligence was of the parent exercising direct and immediate control over the child, who was injured in an accident which was caused or contributed to by the negligence of the parent; that, if the parent could not recover for injuries sustained, therefore the child could not be permitted to recover. The court instructed the jury that, in the case of the child's action, Ethel Anna Carlson, she being a child of tender years, to wit, five years of age, at the time of the accident, she is presumed in law not to possess discretion; hence she cannot be charged with contributory negligence. Appellants contend that, in view of that in

(203 P.)

it should have been stricken on motion of appellants, which was not done.

struction, the court should have instructed [the precise question asked, but, if erroneous, the jury, as requested, to the effect that the child should be charged with the contributory negligence of the mother, who had her then in charge.

We feel it unnecessary to pass upon this precise question of law, for the reason that the facts, as shown in the case, and as re solved by the jury in favor of respondents, were that appellants were negligent, and therefore no negligence of either plaintiff contributed to the cause of the injury.

[5, 6] Appellants also contend as a ground for reversal that the court committed error in law during the trial of the case, based upon the following:

While Harold Reardon, a witness for respondents was testifying, he was asked by plaintiff's attorney:

"Mr. Beechler: The state law provides that a person has to be careful in driving. "The Court: I will overrule the objection." Exceptions were asked and allowed.

It is true no allegation in the complaint charges the defendants with negligence in operating the automobile without chains. Appellants, however, did not show the entire setting and context of the evidence complained of.

We do not consider it erroneous, however, for the reason that, although negligence in not having chains was not pleaded by respondents, they did plead that appellant Herbert was driving his automobile carelessly and negligently, at a high, dangerous, and unlawful rate of speed, and this witness qualified as an expert on speed, and on stopping cars under varying conditions, and testified that if Herbert had had chains on his car he could probably have stopped in thirty feet. This was merely testifying as to the conditions under which Herbert was operating his car. It was the duty of Herbert in operating his car to consider all the conditions under which he was so operating. The street being slippery, and the car going at what might have been determined to be a reckless and negligent speed, under these conditions it was his duty to consider that he could not stop as quickly without chains, as he could with chains, and went therefore to the question of his carelessness and negligence in operating his car at the speed at which he did operate it under the circum

stances shown.

[7] The trial court correctly defined negligence, contributory negligence, and also proximate cause, to the jury, and instructed them that "no person driving or operating a motor vehicle should drive or operate the same in any other than a careful and prudent manner, nor at a greater speed than is reasonable and proper, having due regard to the traffic or use of the way by others, or The witness Reardon had qualified to tes- so as to endanger the life and limb of any tify as to the speed of cars and of the kind person," and instructed them as to the speed of car operated by Herbert in particular, limit in various sections of the city, and and in doing so had testified that, under generally upon any street or road in the ordinary conditions, on a street of the kind state of Washington, and that they must in question, when it was dry, and the car and from a clear preponderance of the evigoing at the rate of 20 or 25 miles per hour, it dence that, at the time alleged in the comcould have been stopped in from 20 to 25 feet. plaint, the injuries were sustained by the He was then asked; "When the street is in parties because of the negligence of Herbert a slippery condition such as this street was substantially as alleged in the amended comin, would you say a person would go fur-plaint, and that they should further find that ther before he would stop? He answered, at the time alleged plaintiff Ida M. Carlson volunteering the statement, "If he had chains on, I don't think he would have." He was then asked if there were chains on the car, and he answered there were no chains on the car. If he had chains on the car could probably be stopped in 30 feet. The evidence as to the chains was somewhat of the nature of volunteered evidence, not called for by 203 P.-3

was free from contributory negligence. We are satisfied that the jury were correctly instructed as to the law of the cases, and that no error occurred.

The judgments are affirmed.

PARKER, C. J., and MAIN, MACKINTOSH, and HOVEY, JJ., concur.

(118 Wash. 56)

HERREN et al. v. HERREN et al. (No. 16498.)

(Supreme Court of Washington. Dec. 19, 1921.)

1. Appeal and error 893(2), 895 (3)-Supreme Court will try specific performance suit de novo on appeal, and will disregard incompetent evidence.

In action for specific performance consolidated with action to have deed declared void, the

Supreme Court on appeal will try the case de novo on the whole record, and will consider all evidence which should have been admitted, and disregard any which should have been rejected by the trial court.

2. Trusts 89(2) Evidence that partner used partnership funds as part of price, insufficient to establish resulting trust in favor of copartner for undivided one-half interest in land purchased.

Evidence that a part of the purchase price with which one brother purchased property came from proceeds of partnership business of such brother and another brother held insufficient to establish a resulting trust in favor of other brother for an undivided one-half interest in the property, in absence of other evidence as to the portion of the purchase price taken from the partnership proceeds.

3. Specific performance 46-Son's continued possession of father's farm held not part performance of father's parol agreement to convey farm to son in consideration of his residence on farm.

Where son had been living with parents on their farm before parol promise to convey farm to him in consideration that son would continue to reside on the premises, his continued possession after such promise was not such part performance as entitled son to specific performance. 4. Specific performance 121 (2)-Oral agreement to convey need not be shown by proof that removes all uncertainty.

An oral agreement to convey land need not be shown by proof that removes all uncertainty, but it is sufficient if from the whole evidence the contract can be determined with reasonable certainty.

Department 2.
Appeal from Superior Court, Lewis County;
W. A. Reynolds, Judge.

Consolidated actions by Elma S. Herren
and others against S. L. Herren and others,
and by S. L. Herren and others against Elma
Decree for Elma S.
S. Herren and others.
Herren and others, and S. L. Herren and oth-
ers appeal. Remanded, with instructions.

S. C. Herren, of Chicago, Ill., and H. E.
Donohoe, of Chehalis, for appellants.
Chas. M. Fouts and C. B. W. Raymond,
both of Seattle, for respondents.

HOLCOMB, J. A. J. Herren died intestate February 16, 1920, in Lewis county, leaving surviving him his widow, Jane Herren, and their children Hugh Herren, Susie Herren, and E. Benjamin Herren, as his only heirs at law. On June 28, 1920, E. Benjamin Herren died intestate in Lewis county, Wash., leaving surviving him his widow, Elma S. Herren, and their minor son, Robert D. Herren, as his only heirs. On July 22, 1920, Elma S. Herren was appointed administratrix of the estate of E. B. Herren, and also was appointed general guardian of their minor son, Robert D. Herren, and qualified in each of those capacities. In August, 1920, Samuel L. Herren was appointed administrator of the estate of A. J. Herren, deceased; the widow having waived her right.

This appeal is from a decree in two consolidated actions. One was an action of Elma S. Herren in her own right and as administratrix, and as general guardian of Robert D. Herren, a minor, against the appellants, claiming through her deceased husband ownership of 308 acres of land described as the Herren home place, comprising what was originally the Morgan donation land claim, and a part of the Bouchard donation land claim; and alleging, in effect, that appellants were the holders or owners of bare legal title, and have refused to transfer the same to her deceased husband or his successors in interest. Subsequent to the commencement of the foregoing action appellants instituted an action against respondents, claiming ownerEvidence held to prove parents' parol agree-ship of all the property that had been inment to convey an undivided one-half interest ventoried by respondents and filed in the recin farm and personalty thereon to son in consid-ords in the estate of E. B. Herren, deceased, eration of son continuing to remain on farm. particularly describing the property, both real and personal, as it appeared in the inventory of E. B. Herren, deceased.

5. Specific performance 121 (4) Evidence held to prove parents' parol agreement to convey an undivided one-half interest in farm and personalty thereon to son.

6. Specific performance 41 Parol agreement for conveyance of land enforced, where fully performed by promisee.

A parol agreement for the conveyance of real property will be enforced, where it had been fully performed by the promisee.

7. Costs 234-Appellants allowed costs on appeal on recovery of substantial benefits. Where modification of decree resulted in substantial benefits to appellants, they will be allowed their costs on appeal.

In their action for specific performance respondents alleged that there was an oral agreement made and entered into between E. B. Herren and his father, A. J. Herren, in effect as follows:

"That in consideration of the services rendered by E. B. Herren in liquidating several thousand dollars of indebtedness incurred by

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

(203 P.)

A. J. Herren for which said premises were bound, and in further consideration that the said E. B. Herren will continue to reside upon said premises, orally agreed to convey the whole of said premises to E. B. Herren by a good and valid deed of conveyance, with the understanding that the said A. J. Herren and wife could, during their lives, occupy the residence upon said premises, and did then place said E. B. Herren in possession of the whole of said premises, which possession he retained to the time of his death, and that no time was specified

same; that the son Ben Herren was permitted to handle the funds and manage the place merely as a son and not otherwise; that they worked together and were prosperous, without any understanding or agreement as to the division of the property or the proceeds of the same; that the title was at all times held by A. J. Herren and wife; that there was no contract to convey as alleged in the complaint; that all the money Ben ever had

or made was made there on the home place, and that the family living there helped him to do it; that all improvements and taxes were paid for out of the joint efforts, from the property on the place, all working to

for the execution of said deed, but it was under-
stood by the parties making said oral agreement
that the said A. J. Herren and Jane Herren,
upon demand would each, by a valid deed, con-
vey an undivided one-half interest in said prem-
ises to said E. B. Herren. That said oral agree-gether.
ment was negotiated by said A. J. Herren, and
that the said Jane Herren agreed to abide by
what her husband did, and ratified, at all times
up to the death of said E. B. Herren, the said
agreement, and recognized the existence of said
agreement as their valid obligation."

The complaint further alleges that E. B. Herren, relying upon that agreement, took possession of the premises, and thereafter spent many thousands of dollars in clearing, fencing, and repairing buildings and preparing the premises for suitable cultivation and occupancy, and otherwise improving the property, and in the paying of taxes and defraying of other expenses, all of which was done with the knowledge and consent of A. J. Herren, and that E. B. Herren exercised the right of ownership of the premises; and that on or about September 6, 1919, the parties interested made a division of all the real estate, and, among other transactions, A. J. Herren made, executed, and delivered, by and with the consent of his wife, Jane Herren, a deed of an undivided one-half interest in and to all the home place involved.

The defendants answered the complaint of respondents, and set up a general and specific denial of all the material matters set out in the complaint, and by way of affirmative defense allege that the property described in respondent's complaint was at all times the community property of A. J. Herren and Jane Herren, his wife; that they lived and resided upon the place for upwards of 30 years, paid all the taxes, and that no one questioned their ownership or possession; that A. J. Herren died intestate on February 17, 1920; that the widow, Jane Herren, according to the law of descent, is the owner of an undivided one-half, with all her homestead rights in the whole of the estate. That the children and heirs, according to the laws of de scent, were the owners in fee of the other undivided one-half and that the widow, Jane Herren, and the heirs and administrator of the estate of A. J. Herren are now in possession of all of the property described. They further affirmatively allege that A. J. Herren and wife lived on the property for many years with their children, and cultivated the

They further allege that the deed attempted to be procured by E. B. Herren from A. J. Herren of an undivided one-half interest in the Herren home place was procured at a time when A. J. Herren was without sufficient

mental capacity or understanding to make or deliver a deed, that he did not know what he was doing by reason of his extreme illness, and that the deed mentioned in the complaint was void under the statute, in that it was not joined in by the wife of A. J. Herren, the property being community property.

It is further alleged that the oral agreement alleged by respondents, to convey, was Void, not having been in writing and relating to real property.

These several affirmative matters were put in issue by appropriate denials.

The trial court made findings in favor of respondents, decreeing specific performance of the alleged oral contract to convey the 308 acres of land, and finding that the personal property upon the farm, consisting of stock, machinery, and implements, was the property of the estate of E. B. Herren, and that the $3,000 in United States Liberty Loan Bonds, which had been purchased by E. B. Herren, was the property of his estate, and that the $9,000 worth of United States Liberty Loan Bonds and some $6,000 worth of municipal and county bonds were the property of the estate of A. J. Herren, deceased.

[1] Forty-one errors are claimed by appellants, some of which are well taken, but we shall not discuss them all separately. Among other things, the court made some findings which there is absolutely no evidence to support, and we presume were made by inadvertence, at the request of prevailing counsel. The court also, in summing up the evidence, appears to have made several incorrect statements, due, no doubt, to lapse of memory after the conclusion of a very lengthy and complicated trial. We shall, however, consider all evidence which is here which should have been admitted, and disregard any which should have been rejected by the trial court, since we must try the case de novo upon the whole record.