Some question is raised as to the instructions, but we find no error in this regard. The issues which the jury were to determine were specifically and pointedly stated. The instructions were as favorable to the cause of the appellants as the law would justify. The judgment will be affirmed.

MOUNT, J. Plaintiff brought this action to recover damages for personal injuries. He alleged in substance, that the defendant negligently ran him down with an automobile on the public highway and injured him. Defendant, for answer, denied any negligence, and alleged contributory negligence of the plaintiff. The cause was tried to the court without a jury. At the conclusion of the

173(2)

AUTOMOBILES

SKIDDING-SPEED-NEGLIGENCE. Where defendant driving a car on a rainy night along a road with a 16-foot pavement approached four cars on different sides of the road with all lights burning, putting up tops, and drove down on them at 12 miles per hour, and on passing through a 10-foot space put on his brakes and the car skidded injuring plaintiff, working near his car, he was guilty of negligence.

5. NEW TRIAL 104(2)-NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE.

In an action for damages for being run into by defendant's car, where defendant claimed that his car was struck by another car and forced upon plaintiff, affidavits of two eyewitnesses that another car was the cause of the injury was cumulative, and not grounds for a new trial as newly discovered evidence. 6. DAMAGES 131(2)-PERSONAL INJURIESTEMPORARY INJURIES-LEGS.

Where plaintiff, not having remunerative employment, received temporary injuries to his knees and shins whereby he was bedridden several weeks, walked on crutches for a time, and afterwards used a cane for a time and had a doctor bill of $25, a verdict for $1,000 was excessive, and should be reduced to $500.

Department 2. Appeal from Superior Court, King County; John S. Jurey, Judge. Action by William Deitchler against J. O. Ball. Judgment for plaintiff, and defendant appeals. Modified and remanded, with directions.

the plaintiff, and awarded him damages in the sum of $1,000 and costs. The defendant has appealed.

It appears that on the night of July 4, 1916, at about 9 o'clock, the respondent was returning to the city of Seattle from the north in an automobile upon a public paved highway. The pavement was about 16 feet in width. When respondent came to within 3 or 4 miles of Seattle, the rain began to fall, and he turned out to the side of the road

preparatory to putting up the top to his car. He drew up behind another automobile which was already stopped for the same purpose. Another automobile following drew up behind the respondent. These three cars were headed in the same direction-toward Seattle. They were on the right-hand side of the road, with two wheels on the pavement and two off. About this time another car, coming from toward Seattle, drew up on the opposite side of the road, also for the purpose of putting up the top to the car. As soon as the respondent stopped, he proceeded to put up the top to his car, standing at the front of his car, on the right-hand side of the paved road and next to his car, arranging the front part of the top. While he was doing this, the appellant's car struck him on the legs, knocked him against the front fender of his car, and injured him.

At the trial of the case the appellant contended that he stopped his car upon approaching, just before he came to the respondent's car, and while in that position another car came up from behind, struck his car, and shunted it against the respondent. Appellant makes several assignments of er

ror.

time and place. We are satisfied there was no error in the admission of the plat in evidence as a part of the testimony of the witnesses who testified concerning the location of the cars at the time of the accident. In the case of Spokane v. Patterson, 46 Wash. 93, 89 Pac. 402, 8 L. R. A. (N. S.) 1104, 123 Am. St. Rep. 921, 13 Ann. Cas. 706, quoting from 17 Cyc. 412, we said:

"It is the common practice in the courts to receive private or unofficial maps, diagrams, models, or sketches for the purpose of giving a representation of objects and places which generally cannot otherwise be as conveniently shown or described by witnesses, and when proved to be correct or offered in connection with the testimony of a witness they are admissible as legitimate aids to the court or jury."

This sketch was offered in connection with the testimony of witnesses who testified concerning the location of the cars at the time, and was admissible as a legitimate aid to the court, because it gave the court a better understanding of the location than a mere description by word of mouth could do.

Stephenson v. Parton, 89 Wash. 653, 155 Pac. 147, quoting from 2 R. C. L. p. 1184, we said: "If a person is standing in the highway, a driver must notice him and take care not to injure him, and a failure to see a pedestrian in the street may amount to negligence.'

[4] It is next argued by the appellant that he was free from negligence, and therefore no recovery can be had against him, but if the testimony of the respondent and his witnesses is to be believed, it appears that these cars were standing on the right-hand side of the road, with two wheels on the pavement and two off, and that there was about 10 feet of open roadway between the cars standing on one side of the road and the car standing on the other side. It was about 9 o'clock in the evening. It was dark and raining. The

pavement was wet, and, no doubt, slippery,

as some of the witnesses testified. The front

and rear lights on all these cars were burning brightly. When the appellant approached these cars he had at least 60 or 70 feet, or more, in which to see them. In the exercise of reasonable care he was bound to

[3] Appellant next argues that the respondent was guilty of contributory negligence. Respondent testified, in substance, that while he was putting up the top to his car and fastening the straps over the front to hold the top down, and while he was right up to the car as near as he could stand, he paid no attention to what was going on about him. Naturally this would be true, because, when he was engaged in fastening the top as it should be fastened, in standing close to his car, as he says he was, he had a right to assume that no person would run into him. It was not necessary for him to pay particular attention to passers-by who had plenty of room to avoid him. The respondent, no doubt, as contended by the appellant, was required to use ordinarily reasonable care for his safety, and if his testimony is to be believd at all, he did so when he was standing close to his car attending to his business, and was not putting himself in the way of danger. The respondent clearly had the right to stop his car at the place he did, and he clearly had a right to occupy a portion of the paved way in attending to whatever was necessary to be done about his car; and it was the duty of persons coming up to him to so control their cars as not to injure him, especially where there was room to avoid injury as there evi

The

machine if it was necessary to do so. evidence of the respondent tends to show that he did not stop, but approached them at a speed of between 12 and 14 miles per hour, and, in attempting to go in the space between the cars standing on each side of the road he applied his brakes too quickly, and his car skidded and ran into the respondent and injured him. If these are the facts, and we think the great burden of the evidence proves them to be the facts, clearly the appellant was guilty of negligence. Stephenson v. Parton, supra; Kathmeyer v. Mehl, 60 Atl. (N. J.) 40; Schock v. Cooling, 175 Mich. 313, 141 N. W. 675; Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30, and note.

We are satisfied that the appellant was guilty of negligence under the facts stated.

[5] Appellant next contends that the court erred in denying the motion for a new trial. This motion was based upon newly discovered evidence after the trial. Affidavits of two persons who were there at the time of the accident are to the effect that the appellant's car did not injure the respondent, but that the injury was caused by another car. It is clear from the whole record that this was the principal issue upon the trial, and that the newly discovered evidence is merely cumulative of evidence which the court heard at the trial. We are not convinced that the court erred in denying the motion for a new trial.

[6] Appellant next contends that the verdict is excessive. We think there is merit in this contention. The respondent was injured

The respondents claim that the value of the property was $150,000, and that an assessment for one-half this sum, or less, did not require that the property bear an excessive tax.

[1] It is first contended that, since the county treasurer intervened in the condemnation action, and the prosecuting attorney signed the stipulation above referred to, the county cannot now be heard to say that the fair market value of the property, for the years mentioned, exceeded the amount stated in the stipulation; but this contention cannot be sustained. The only purpose of the petition in intervention was to protect the county's rights to have its taxes out of the fund which should be paid into court in the condemnation proceeding. No issue was made upon the complaint in intervention. It may well be doubted whether the county treasurer, in that action, would have had a right to appeal from the judgment. More over, the stipulation does not assume to fix the value of the property, but provides that this court might reverse the judgment and remand the cause to the superior court with direction to enter a judgment for $102,500 in lieu of the judgment entered upon the verdict of the jury for $88,500. The purpose of the stipulation was to settle the litigation then pending, and was a compromise agreement for that purpose. The supplemental judgment entered by the superior court in pursuance of the stipulation and the mandate of this court provided that the $102,500 be paid into court as compensation for the waterworks system or plant. We see no reason why the county, in this action, should be bound by the amount of compensation paid by the city in the condemnation proceeding for the plant.

[2, 3] It is next claimed that the evidence upon the trial of this action established such an excessive valuation of the personal property of the waterworks system as to make the assessment constructively fraudulent. The appellant recognizes the rule, repeatedly announced by this court, that the value fixed by the taxing officers will not be disturbed unless such valuation is shown by clear and convincing evidence to be so grossly excessive as to amount to a constructive fraud. The evidence offered upon the trial as to the value is conflicting. The appellant's engineer, who had made a careful valuation of the plant, placed that value at such a figure that, if accepted by the court, it would show an excessive assessment. The testi

study of the value of the plant, would sustain the assessment. Without reviewing the testimony of these witnesses in detail and discussing their respective theories, it may be said that, after a careful consideration of all the evidence, the court cannot say that an excessive valuation is established by evidence which is clear and convincing. Preliminary to the assessment for the year 1913, a printed blank supplied by the state board of tax commissioners for the assessment of gas and water companies was handed to the manager of the Washington Public Service Company by the assessor. Upon this blank the property was listed, and its value fixed at the sum of $150,000, and was thereupon returned to the assessor, together with a letter approving the same, by the president of the corporation. For neither of the years 1913 or 1914 did the owner of the property appear before the board of equalization and ask for a reduction of the assessment; but did appear before that board in the year 1915, and secured a reduction. This accounts for the discrepancy between the amount of the assessment for the two preceding years and the latter year. The amount fixed by the verdict of the jury cannot be given much weight as evidence of value, because that case never went to a final determination after the appeal was taken. The amount fixed in the stipulation cannot be given great weight as to the value of the property, because that stipulation was prompted by a desire to compromise and settle the litigation; one party doubtless being apprehensive that the judgment might not be affirmed, and the other that it would be.

The case of Spokane & Eastern Trust Co. v. Spokane County, 70 Wash. 48, 126 Pac. 54, Ann. Cas. 1914B, 641, is not here in point, because in that case there was a fixed and definite policy on the part of the assessing officers to value bank stock at a higher percentage of its actual value than other property. In this case there was not a fixed and definite policy to assess the property of the Washington Public Service Company at a higher percentage of its value than other property in the county.

The case of First Thought Gold Mines, Limited, v. Stevens County, 91 Wash. 437, 157 Pac. 1080, is not controlling, because in that case, based upon the evidence there considered, the court was of the opinion that the value of the property involved, taken as a basis for taxation, was so far in excess of its actual value as to make the assessment constructively fraudulent.

Each case must be determined largely upon its own evidence. As already indicated, we are of the opinion that the evidence in the present case is not clear and convincing to the effect that the property was so grossly overassessed as to amount to a constructive