cause, is unable to be present. But there are, and must of necessity be, some exceptions to the rule. The rights of the other party in the premises and all of the matters and circumstances connected with the case should be taken into consideration by the trial court, and, in the light of all of these matters, said court should grant or deny the application for a continuance according as he believes the interests of substantial justice demand. In this case the transactions sued upon had occurred a long time prior to the trial. Respondent had been kept waiting for his money, if, as a matter of right, he was entitled to such. The hearing of the cause had already been continued two or three times. There were two defendants, one of whom was personally present and testified at the trial. The granting or denial of a motion for a continuance is addressed to the sound discretion of the trial court, and its decision upon such a motion will not be disturbed unless it appears that there has been an abuse of discretion. In the light of all of the circumstances of this case, we cannot say that such abuse appears. Puget Sound Mach. Co. v. Brown Alaska Co. (Wash.) 85 Pac. 671. Upon the question as to whether respondent was entitled to $5 a day upon one or all of the contracts, there was a conflict in the evidence, and we are unable to arrive at a different conclusion from that reached by the superior court.

It is suggested that some of the evidence introduced was incompetent. This court has frequently announced that, where a case is heard by the trial court without a jury and tried here de novo, incompetent evidence will not be considered, and its introduction in the trial court will ordinarily not be deemed cause for a reversal.

Appellants admitted an indebtedness to respondent of $166.43 and $9 costs, and tendered and paid that amount into court. After the decision was rendered, the respondent received said money from the clerk and receipted therefor. The judgment has the following recitation: "It is further ordered that the money paid into the registry of the court, to wit, $175.45, by defendants, be paid to plaintiff Traynor, and applied on account of the judgment hereby granted him against said defendant White." Appellants claim that they had given notice of appeal and filed a supersedeas bond before the order of the court was made allowing respondent to withdraw the $175.45, and urge that this action of respondent was an acceptance of the tender, and sufficient to defeat and determine his cause of action; that, when the supersedeas bond was filed, the respondent was restricted solely to relief thereupon, and had no right to receive the tender deposited. We cannot sustain this contention. There is some conflict as to what took place, and as to the relative dates upon which different things were done touching the taking of the appeal,

filing of the supersedeas bond, and withdrawal of the deposit. But, even if it be conceded that these matters are as maintained by appellants, we are not convinced that the taking of the deposit would have any effect other than to constitute a payment pro tanto upon respondent's judgment.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

CROW, FULLERTON, HADLEY, and DUNBAR, JJ., concur.

MOUNT, C. J., and RUDKIN, J., took no

part.

(44 Wash. 564)

DEAN v. OREGON R. & NAVIGATION CO. (Supreme Court of Washington. Dec. 5, 1906.) 1. PARENT AND CHILD-EARNINGS OF CHILD. Where a minor son left his parents' home without their consent and enlisted in the army, if there was any manumission, it was only effective during the time of service, and when he was discharged from the army he became, as a matter of law, subservient to the authority of his parents, who were entitled to his earnings.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Parent and Child, §§ 70-75.]

2. EVIDENCE-SELF-SERVING DECLARATIONS

LETTERS.

Where, in an action by a father for the death of his minor son, it appeared that he had left home against his parents' wishes, on the question as to whether he intended to contribute his services or earnings to his parents, letters written by him and conversations had by him expressing such an intention were competent, an objection that such declarations were selfserving being untenable.

3. DEATH-DAMAGES-FUNERAL EXPENSES.

In an action for the death of plaintiff's minor son through the negligence of defendant, it was proper to allow plaintiff the sum of $178 for burial expenses and for transporting the body of decedent to plaintiff's home in Arkansas. [Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Death, § 110.]

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by H. P. Dean against the Oregon Railroad & Navigation Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. W. Cotton and Thos. O'Day, for appellant. A. E. Barnes and Geo. A. Latimer, for respondent.

ROOT, J. This case was here once before, and may be found reported in 38 Wash., at page 565, 80 Pac. 842, to which report reference is made for a more complete statement of the facts. Most of the legal questions now suggested were determined in that decision. A new trial resulted in a judgment for respondent in the sum of $1,078, from which this appeal is prosecuted.

We are now required to pass upon the legal sufficiency of the evidence as to decedent's intention to return to his parents or

contribute pecuniarily to them during his minority, he having been between 18 and 19 years of age at the time of his death. It is urged by appellant that, when decedent left his parents' home without their consent and enlisted in the army, he became thereby emancipated, and that consequently the parents could not maintain this action. If there was any manumission, we apprehend that it was effective only during the time that he was actually engaged in the service of the government. When he was discharged from the army, he again became, as a matter of law, subservient to the authority of his parents, and they were legally entitled to his earnings. As he had, without their consent and against their wishes, gone away from home, thereby ignoring and disregarding their authority, it was our view, when the case was here before, that, before the parents or either of them could recover, there must be some showing of an intention on his part to again return, and a reasonable likelihood of his returning, or evidence of an intention and reasonable probability of contributing of his services or earnings to them, before they would be entitled to recover. Upon the last hearing certain letters written by him were. introduced in evidence, as were certain conversations had by him wherein such an intention was expressed by the decedent. It is urged by appellant that these letters and these conversations constituted incompetent evidence in that they were self-serving declarations. We do not think this position tenable. There is nothing to indicate that decedent had any expectation of losing his life, and we cannot see how the doctrine of selfserving statements can be made applicable to this case. We think the letters and conversations were competent, and the question of their sufficiency to indicate a bona fide intention, and a likelihood, on the part of decedent, to return to his parents was, under said evidence, a question of fact for the jury. It is urged that respondent was not entitled to recover expenses for transporting the body of decedent to respondent's home in Arkansas. The total amount for this and burial expenses was $178. We think this a moderate sum to ask. It was the duty of respondent to bury the body of his minor son, and it was but natural and fitting that the remains should be taken back to the old home. Appellant being responsible for decedent's death, it is holden to pay the reasonable cost of burial and the expenses appropriately incidental thereto. In view of these considerations and the small sum expended and sought to be recovered, we think the allowance justifiable.

It is also contended by appellant that the evidence fails to show any reasonable probability of the decedent contributing anything of his wages or any valuable service to the parents during his minority, and that for

that reason the case should have been withdrawn from the jury and judgment rendered in favor of appellant. There was no evidence as to the wages a boy of his years could earn in or about the neighborhood of his parents' home, but there was evidence as to what he was earning here at the time of his death, and it is contended by respondent that the jury had the right to take this into consideration, and, from all the circumstances, estimate what amount might reasonably have been expected by the respondent. This question is not without difficulty, but a majority of the court believe that the amount found by the jury is justifiable and supported by the evidence.

Various assignments of error are based upon the giving and refusal, respectively, of certain instructions. An examination of these does not convince us that any prejudicial error was made.

The judgment of the superior court is affirmed.

MOUNT. C. J.. and CROW, DUNBAR, RUDKIN, FULLERTON, and IIADLEY, JJ., concur.

(44 Wash. 558)

PER CURIAM. The plaintiff, W. H. Sorrill, instituted this action to foreclose a lien for labor and material furnished by him in the construction of certain flues, fireplaces, and brick mantels in an apartment house belonging to defendants James McGougan and Barbara McGougan, his wife. The original contract price was alleged to be $420. The plaintiff sought to recover $95 remaining due on the contract, and $10 for extra work. The defendants denied that any sum was due the plaintiff, and alleged that the flues were not built in accordance with the contract; that their construction was

fective as to cause them to smoke, and be unfit for use; and that the defendants had been thereby damaged in the sum of $350, for which they asked judgment. The trial court made findings of fact to the effect that the defendants, acting through their agent, one T. A. Moar, had entered into a contract with the plaintiff for said work, for the sum of $410; that the plaintiff had completed said contract; that the defendants had paid thereon the sum of $325; that they are entitled to a further credit of $6 for furnishing hoods for the fireplaces, and $10 for cleaning the flues; that there was due and unpaid to the plaintiff the sum of $79, with interest, and that the plaintiff was not entitled to a lien for the reason that his notice had not been filed within the statutory time. From a judgment in favor of plaintiff for $79, interest, and costs, the defendants have appealed.

The respondent has moved to dismiss the appeal, contending that, although this was originally an action in equity, it ceased to be such when the court found that he was not entitled to a lien, and that the original amount in controversy is less than $200. By their answer the appellants contend (1) that no sum whatever was due the respondent; and (2) that they had sustained damages in the sum of $350, for which they asked judgment. Had the appellants succeeded in fully establishing their counterclaim they would have been entitled to a judgment for $350. The amount in controversy is, therefore, over $200, and the action is appealable without regard to the question as to whether it continued to be an action in equity. The motion to dismiss is denied.

The only question raised upon the merits is one of fact. It appears from the evidence that the respondent was to perform his contract in accordance with plans and specifications prepared by the appellants' architect, who did not superintend the work; that the appellants' agent, T. A. Moar, was authorized to let subcontracts and superintend all construction as the work progressed; that Mr. Moar was present from time to time during the progress of the building of the mantels, flues, and fireplaces, but failed to object to the character of work being done by the respondent, or to demand that any change be made; that when the work was substantially finished, he paid respondent on account thereof the sum of $325; that appellants made no complaint as to the character of the work until after the contract had been fully completed, and that appellants' tenants are now using the mantels, fireplaces, and flues. Although there is some conflict in the evidence as to whether the work was actually done in accordance with the plans and specifications, we conclude from the entire record that the findings of the trial court should be sustained, and that they support the judgment, which is affirmed.

(44 Wash. 575)

BAKER et al. v. TACOMA EASTERN RY. CO.

(Supreme Court of Washington. Dec. 6, 1906.) 1. RAILROADS - CROSSING ACCIDENT-NEGLIGENCE-PROXIMATE CAUSE.

Where decedent stepped onto a railroad track at a crossing without looking or listening and was struck and killed, the negligence of the railroad company in backing the train without providing a brakeman or lookout on the rear car, was not the proximate cause of his death.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, § 1094.]

2. SAME CONTRIBUTORY NEGLIGENCE.

Decedent, a man of experience 49 years old, was struck and killed while crossing a railroad track at a crossing, by a train being backed over the crossing without a lookout on the rear car. The locality comprised a network of tracks crossing the street at different points, and; at the time of the accident, engines were passing and repassing thereon making noise incident thereto. The train by which decedent was struck was obscured by steam emitted from other engines and he stepped on the track without looking or listening. Held, that decedent was guilty of contributory negligence as a matter of law precluding a recovery for his death. [Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1064-1066.]

3. SAME-GROSS NEGLIGENCE-MALICE.

That defendant railroad company backed a logging train over a crossing at high speed without any lookout or brakeman on the rear car to warn pedestrians of the danger, did not constitute such gross negligence as to amount to maliciousness so as to justify a recovery for death of plaintiff's decedent by being struck by the train at the crossing, independent of decedent's contributory negligence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1100, 1101.]

Appeal from Superior Court, Pierce County; W. H. Snell, Judge.

Action by Julia A. Baker and others against the Tacoma Eastern Railway Company. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Govnor Teats and William P. Reynolds, for appellants. Shackleford & Hayden, for respondent.

DUNBAR, J. Joseph Baker was run over and killed on the morning of July 28, 1905, on East D street in the city of Tacoma, where the Northern Pacific railway tracks cross the same, by a long Tacoma Eastern Railway train loaded with logs, backing down upon him, without any lookout or rear brakeman upon the train to protect the people passing along the street. The plaintiffs, wife and daughter of the deceased, sued to recover for the wrongful death.

The complaint alleged negligence on the part of the respondent in not having a guard upon the rear end of the train. It appears from the complaint that East D street is one of the thoroughfares over which many people pass, and especially so at at the hour of 7 o'clock in the morning, which was the time this accident occurred, as it is the street

leading from their homes to the numerous factories, railroad shops, and mills, upon the tide flats; that the Northern Pacific tracks, consisting of about seven or eight tracks, cross East D street at about right angles, and its roundhouse is located near East D street; that, at the time of the accident, Northern Pacific engines were coming out of the roundhouse, going up East D street on the several tracks, two or three at a time, puffing, ringing bells, and blowing off steam; that the defendant, at the time of the accident, was running or backing its train of about nine cars, with great speed, over one of the parallel tracks across said East D street, with a locomotive upon the rear end of the train which the defendant was backing. Baker was an employé of the Northern Pacific Railway Company at its roundhouse just east of D street. The Tacoma Eastern Railway Company has a depot just west of D street, about a block to the south of the railroad track, and its tracks are so arranged as to connect with the Northern Pacific tracks, and to switch back and forth upon them and across East D street, down to the city waterway where it unloads its train loads of logs. It appears that while the engines were ringing their bells and blowing off large quantities of steam, and when one of the engines of the Northern Pacific was on the track in front of him, and another had passed up along towards the west, probably 50 or 60 feet, and another engine was coming towards him, and other engines were on the tracks in the immediate vicinity, Mr. Baker came diagonally across the street crossing, his attention riveted upon the engines which were coming towards him; that, at the time he was crossing the track upon which he was killed, he had his back towards the west, or his left side and back towards the west as he went in the diagonal direction, when the logging train backed on him, and threw him down onto the south rail of the track, and ran over and killed him. Negligence was denied by the defendant, and contributory negligence alleged. After the issues were made up, it was stipulated that a statement of the case by the plaintiffs should be made, and that the court should then pass upon the right of the plaintiffs to recover. After such statement was made, construing the statement of the plaintiffs and the pleadings, the court found that the plaintiffs were not entitled to recover, and dismissed the action. From this judgment of dismissal this appeal is taken.

The statement is quite lengthy, but we think we have said sufficient to present the situation fairly. It is the contention of the appellants that it was negligence on the part of the respondent, under the circumstances, as shown by the complaint and the statement, to back its cars down across a street where pedestrians were crossing in great numbers,

without a lookout or brakeman on the rear end of the cars. Conceding, for the purposes of this decision, that it was negligence for the railroad company to back the train across the street without a watchman, yet we think the appellants cannot recover, for the reason that such negligence was not the proximate cause of the accident, but that the proximate cause was the contributory negligence of the deceased. It is the contention of the appellants that this case is controlled by the decision of this court, in Roth v. Union Depot Co., 13 Wash. 525, 43 Pac. 641, 44 Pac. 253, 31 L. R. A. 855, and Steele v. Northern Pacific Ry. Co., 21 Wash. 287, 57 Pac. 820. think to allow a recovery in this case we would have to extend the doctrine announced in those cases. In both cases the cars were sent down the track without any one attending them at all, and this court held that to be negligence. But in both cases the injured persons were boys of tender years, and it was held that the same degree of caution would not be demanded of them as would be demanded of an adult. In Roth v. Union Depot Co., supra, it was said: "By the overwhelming weight of authority a distinction is made between the responsibility of a child and that of an adult. It seems to us that it would be a monstrous doctrine to hold that a child of inexperience-and experience can only come with years-should be held to the same degree of care in avoiding danger as a person of mature years and accumulated experience. In the simplest transactions of life we recognize this distinction." And this sentiment was approved in the Steele Case. But, in this case, the person injured was a man of age and experience, being 49 years old, not only experienced in the general affairs of life, but experienced in the business of railroading, experienced in the usual conduct and management of cars at the identical place at which he received the injury, having been in the employ of the railroad company at this place and working in this yard for years, and crossing this track every day during that time. The locality was a network of tracks crossing the street at different points. Engines were passing and repassing on these tracks, shrieking and rumbling, ringing bells, and puffing steam, which must have necessarily given notice that it was dangerous to cross any track in that network without exercising the utmust prudence, caution, and alertness. It was the duty of the deceased before crossing the track, which is a notice of danger to look and listen.

It is contended by the appellants that the doctrine of look and listen does not apply to a railroad crossing on a street, but, we think, in accordance with the opinion of the lower court, that, if there was any place where it would seem that the doctrine of looking and listening would apply, it would be

just such a place, where there were so many engines and trains passing over the tracks in different directions, and so many switches throwing the trains from one track back and forth to another. It would be hard to conceive of a case of negligence in crossing a railroad track without due precaution, if this case does not furnish an instance of negligence. It is claimed that the deceased could not see the logging train approaching him by reason of the abundance of steam emitted from other engines. But, in addition to the fact that this was a warning to him not to step on the track until he could see, or determine the safety of the place in some other way, the employment of a watchman on the end of the train would have been unavailing, for the watchman could not have seen him. A discussion of cases would be unprofitable in the decision of this case, for every case presents a little different state of facts. But this court has accepted the doctrine announced by the Supreme Court of the United States, in Chicago, R. I. & P. R. R. Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542, where it was said: "Before attempting to cross a railroad track, he is bound to use his senses, to listen and to look, in order to avoid any possible accident from an approaching train. If he omits to use them, and walks thoughtlessly upon the track, or if, using them, he sees the train coming, and, instead of waiting for it to pass, undertakes to cross the track, and in either case receives any injury, he so far contributes to it as to deprive him of any right to complain." It was said by this court in Woolf v. Washington Ry. & Nav. Co., 37 Wash. 491, 79 Pac. 997: "The argument that contributory negligence involves the question of what an ordinarily prudent man would do under all the circumstances, and consequently presents a question solely for the jury, is, when applied to the case at bar, unsound in this: In railroad crossing cases the law has prescribed 'looking and listening' as precautions essential to 'ordinary care' or 'ordinary prudence.' Hence, as a matter of law, a man crossing a railroad track without 'looking and listening' cannot be held guiltless of negligence, except in rare cases, and under extraordinary conditions. ***"

Under all the circumstances of this case, considering both the pleadings and the statement made, we are compelled to the conclusion that the deceased was guilty of contributory negligence, and that the appellants therefore cannot recover. We think that the negligence on the part of the railroad company was not so gross that it could be considered malicious, and that. therefore, the proximate cause of the accident was the negligence of the deceased.

MOUNT, C. J., and RUDKIN, FULLERTON. and HADLEY, JJ., concur. ROOT and CROW, JJ., not sitting.

(44 Wash. 523)

REGAN V. SCHOOL DIST. NO. 25 OF SNOHOMISH COUNTY et al. (Supreme Court of Washington. Nov. 28, 1906.) 1. SCHOOLS AND SCHOOL DISTRICTS-SCHOOL MEETINGS-NOTICE-CONDITIONS.

3 Ballinger's Ann. Codes & St. § 2442, provides that any board of school directors may call a special meeting of the voters of the district to determine whether the district shall purchase any schoolhouse site or sites, and to determine the location thereof, or whether the district shall have one or more schoolhouses, etc. Held, that the meeting contemplated by such section was not an election at which polls or voting by ballot for a particular period of time. was required, so that a notice of a school meeting thereunder, reciting that it would begin on a specified day at 1 o'clock p. m.. was not ob jectionable for failure to state the hours between which the polls would be kept open, etc. 2. STATUTES CONSTRUCTION-GOVERNMENT DEPARTMENTS.

While the construction placed on a statute by the department of the government having to do with the subject-matter thereof is not conclusive on the courts, such interpretation, espe cially when long observed, will not be ignored nor lightly regarded.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44. Statutes, § 296.]

3. SCHOOLS AND SCHOOL DISTRICTS-SPECIAL MEETINGS-TIME.

Where notice of a special school meeting stated that the meeting would begin at 1 o'clock p. m., for the determination of a school site location, etc., and the meeting began at the hour specified, the proceedings were not defective because the business was concluded and the meeting adjourned in half an hour.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Schools and School Districts, § 119.] Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Suit by John Regan against School District No. 25 of Snohomish county and others. From a judgment in favor of plaintiff, defendants appeal. Reversed and remanded, with instructions.

McMurchie & Locke, for appellants. Padgett & Bell, for respondent.

ROOT, J. A meeting of the voters of appellant school district was called, under the authority of section 2442, vol. 3, Ballinger's Ann. Codes & St., by order of the board of directors. Notice of said meeting was given by posting the following notice: "No. 26. Notice of Special School District Meeting. Notice is hereby given that a special meeting of the legal school electors of School District No. 25, of Snohomish county, Washington, will be held at Primary School building in said district on the 8th day of August, 1906, beginning at the hour of one o'clock p. m. of said day, for the purpose of determining the location of a school site and the erection of a four-room building thereon for school purposes. By order of the Board of Directors. Dated this 27th day of July, 1906. [Signed] M. Swinnerton, School District Clerk." Pursuant to said notices a meeting was held at the hour and place named; there being some 22 voters present. The electors at said meet