not consider the showing made a sufficient | cause, and denied the motion. Thereafter additional affidavits were filed, and a show cause order was issued by the court on November 24th requiring the respondents to appear and show cause why the time should not be extended. Upon argument of this motion the trial court was of the opinion that he could not at that time grant an extension, and denied the motion. Thereupon application was made to this court for this writ. It is argued by the relator that the trial court abused its discretion in denying the above-mentioned motions for an extension of time in which to file and serve a statement of facts. In view of the statute hereinafter quoted, we think it is unnecessary to determine whether the trial court abused its discretion, or whether it had jurisdiction after the expiration of the 90 days to extend the time for filing and serving a statement of facts. The statute, at section 8, p. 303, Laws 1915, provides as follows: "In case of a failure of the appellant to serve an abstract of record and statement of facts, or the one served is insufficient, the Supreme Court shall, if such failure is found to be excusable, allow the appellant a reasonable time, upon such terms as the court may impose, in which to supply such abstract of record and statement of facts." The statement of facts filed on the 27th day of October, 1915, was insufficient because it was filed after the 30-day period had expired, and without an order extending the time therefor. The excuse made, as we have indicated above, is that, after the judgment was entered, negotiations were entered into for a settlement of the case. It is not disputed that these negotiations were pending during the months of August and September, 1915. It is not disputed that these negotiations were conducted in good faith, and, as counsel state, with reasonable hope that the case might be finally settled without further litigation. We are inclined to think that this is a reasonable excuse sufficient for this court to now authorize an extension of time within which to file and serve a statement of facts under the statute quoted. We are of the opinion, however, that terms should be imposed in this and all other cases of this character. We think the statute contemplates that such terms be imposed in cases like this. The order will therefore be made upon terms of $100 payable by the appellant to counsel for the respondents within 30 days after notification of this decision. It is ordered further that the appellant shall within 30 days after such notification refile and serve a statement of facts, and that within 10 days thereafter the respondents may, if they desire, file amendments to the statement of facts proposed; and that the appellant have 60 days from the date of the settlement of the statement of facts within which to serve and file its opening brief on appeal. It is further ordered that the clerk of this court immediately transmit the statement of facts filed here to the superior court of Okanogan county, and notify counsel of this decision. Costs of this application taxed against the relator. An injury, resulting from slipping on a wet basement floor while attempting to close the stop of a water supply pipe, was not the proximate result of negligence of the city in installing the water meter, resulting in a leak, and in installing the stop, which turned with difficulty, and the city is not liable for the injury. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 300; Dec. Dig. 208.] Department 1. Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge. Action by Constant Ottevaere and wife against the City of Spokane. From a judgment for defendant, plaintiffs appeal. Affirmed. Plummer & Lavin and Harry L. Cohn, all of Spokane, for appellants. H. M. Stephens, Wm. E. Richardson, Ernest E. Sargeant, and Dale D. Drain, all of Spokane, for respondent. It is argued by the respondents that the relator here ought not to have relied upon these negotiations, but that he should have prepared and filed his statement of facts within the 30-day limit, notwithstanding the fact that these negotiations were pending. But we think it is the policy of courts to encourage settlements in pending litigations, and that, where negotiations for settlements FULLERTON, J. This is an appeal from are conducted in good faith, and extend a judgment rendered in favor of the reover a period of time, the parties to the spondent and against the appellants on a settlement ought not to be penalized to the challenge to the sufficiency of the evidence extent of being deprived of their rights upon in an action to recover for personal injuries appeal in case the settlement should fail. As suffered by the appellant Eugenie Ottevaere. stated above, we are of the opinion that this is The record discloses that the appellants are a reasonable excuse for failure to file and the owners of certain real property situated serve a statement of facts. in the city of Spokane, consisting of a lot For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes result of an act of negligence is not actionable, and that such an act is either the remote cause, or no cause whatever, of the injury. The present case, we are clear, falls within the latter rule. The city could not reasonably anticipate that the breaking of the water meter or the strain required to turn the stop valve would cause the peculiar accident suffered by the appellant. It could anticipate, of course, that an attempt would be made to shut off the water by turning the stop valve if the water meter broke and let the water escape in the basement. Indeed, that was one of the purposes for which the stop valve was installed. But it could not reasonably anticipate that a lift thereon would cause the person making the lift to fall on the floor. It is possible for such a thing to happen, but it is not the usual nor the natural result of such an act. On the contrary, it is the unusual and unnatural result of such an act, and these the city is not required to anticipate. To hold otherwise would make the city an insurer against all acts arising from a break in its water system caused by a defect therein. It would be liable whenever the negligence furnished a condition by which the injury was made possible, however remotely the condition and injury might be separated, if only the injury can be traced to the negligent act by a sequence of causes. But, as was said by the Supreme Court of the United States in Scheffer v. Railroad Co., 105 U. S. 249, 26 L. Ed. 1070, holding a railroad company not liable for the death of a passenger who com with a dwelling house thereon. The prem- nor reasonably anticipated as the probable ises are supplied with water from the city water system, the supply pipes entering the house in the basement near the floor. Some time in April, 1914, the appellants petitioned the city to install a water meter on the supply pipe, and the city did so, placing the meter inside of the basement of the house. The meter was installed in the usual manner, with a stop and waste valve between the meter and the source of supply. The stop and waste valve had on it a projection or handle so as to be worked by hand without the aid of wrenches, and was so arranged that when the source of supply was cut off it would operate as a drain for the water in the pipes which carried water into the different rooms of the house. After the installation of the meter the appellants, for its better protection, built around it a concrete box. On October 7, 1914, the meter suddenly gave way, permitting the water flowing through the service pipe to escape into the basement. The appellant Eugenie Ottevaere, discovering the break went into the basement, and sought to stop the flow of the water by turning the stop and waste valve. The place surrounding the meter was dry when she reached it, but soon thereafter the water covered the floor, making it, as she testified, very slippery. The valve fit close, and failed to turn with ordinary pressure. The appellant thereupon exerted her full strength upon it, and while so doing her feet slipped on the wet floor, causing her to fall upon the concrete box. This action was instituted to recover for the injuries suffered from the fall. In their complaint the appellants charged the city with negligence in the installation of both the meter and the stop and waste valve. It is alleged that the meter was defective in construction, and insufficient, because thereof, to stand the strain caused by the pressure of the water; and that the stop and waste valve was defective in that it was fitted too closely, preventing it from being turned with an ordinary amount of strain upon the handle. But without specially reviewing the record, we think it can be questioned whether there was any substantial evidence tending to support either of these contentions. The court, however, sustained the challenge to the sufficiency of the evidence on the ground that the negligence charged was not the proximate cause of the injury; and, as we have reached the conclusion that the judgment must be sustained on this ground, we will notice only the question suggested by the ruling. mitted suicide while insane as the result of the injury while such a passenger: railroad. 1. HIGHWAYS 184-USE FOR TRAVEL-AoTION FOR INJURY-QUESTION FOR JURY. In an action for causing death by running down decedent with an automobile, evidence All of the cases agree that an injury which held to present questions for the jury whether is the natural and probable consequence of the driver ran upon decedent while standing an act of negligence is actionable, and that still, or whether he moved from a place of safesuch an act is the proximate cause of the ty in front of the automobile, where there was no chance to avoid being struck. injury. It is equally well settled that an [Ed. Note.-For other cases, see Highways, injury which could not have been foreseen | Cent. Dig. §§ 471-474; Dec. Dig. 184.] 2. HIGHWAYS 173-USE FOR TRAVEL-CARE From a judgment for plaintiff, defendants One in a place of safety, who steps in front of an automobile where there is no chance to avoid being struck, is negligent. [Ed. Note.-For other cases, see Highways, Cent. Dig. 88 459, 460; Dec. Dig. 173.] 4. HIGHWAYS 184-USE FOR TRAVEL-ACTIONS FOR INJURIES-INSTRUCTION. An instruction that, if decedent was standing by his vehicle in a public highway in full view of the driver of an automobile, and while so standing, without changing his position, she negligently drove the automobile, or permitted it to run against him without exercising reasonable care to avoid him, she was negligent is not erroneous, as placing the entire burden of avoiding the accident on defendant, and exonerating decedent from using any care. Englehart & Rigg, of North Yakima, for appellants. George B. Holden, of North Yakima, for respondent. MOUNT, J. On June 25, 1914, Oliver P. Stephenson was run over and killed by an automobile being driven by Miss Ruth Parton. This action was brought by the administratrix of his estate. She alleged negligence on the part of the defendants, and prayed for damages in the sum of $9,000 for the widow, $1,500 for a married daughter of the age of 22 years, $2,000 for a minor daughter 16 years of age, and $2,500 for a daughter 13 years old. The defendants, Ior answer to the complaint, denied the material allegations thereof, and set up the defense of contributory negligence on the part of the deceased. The case went to trial upon these issues. The defendants, at the close of the plaintiff's evidence, moved for a directed verdict. At the close of all the evidence the [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 471-474; Dec. Dig. 184.] 5. HIGHWAYS 184-USE FOR TRAVEL-AC-motion for a directed verdict was renewed. TIONS FOR INJURIES-INSTRUCTION. An instruction that, if decedent had turned from his vehicle in the highway and was going away from it and was run into by an automobile without negligence on his part, and as the result of the negligence of defendant, the verdict should be for plaintiff was not confusing, and did not, in effect, tell the jury that if decedent met his death while walking away from the vehicle the jury must return a verdict for plaintiff. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 471-474; Dec. Dig. 184.] 6. NEGLIGENCE 83-CONTRIBUTORY NEGLIGENCE LAST CLEAR CHANCE. The doctrine of last clear chance does not apply where both parties are equally guilty of concurring acts of negligence, each of which, at the very time the injury occurred, contributed to it. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 115; Dec. Dig. 83.] 7. HIGHWAYS 173-USE FOR TRAVEL-LIA- BILITIES FOR CHANCE. The last clear chance doctrine applies where the driver of an automobile saw a person standing in the highway and blew her horn at a distance of 200 or 300 yards, and then made no further effort to avoid him. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 459, 460; Dec. Dig. 173.] 8. APPEAL AND ERROR 1070-HARMLESS - SEGREGATION OF EVI ERROR VERDICT These motions were denied. The jury returned a verdict in favor of the plaintiff as follows: To the widow, Florence E. Stephenson $2,000; to the daughter, Myrtle Stephenson, $700; and to the daughter, Ethel Stephenson $800. The court instructed the jury that they could not find any damages for the married daughter. After verdict a motion was made for judgment notwithstanding the verdict, and for a new trial. These motions were denied, and a judgment was entered in accordance with the verdict. The defendants have appealed from that judg ment. It is urged, first, that the court erred in denying the motions for a directed verdict, and the motion for judgment non obstante. The facts are substantially as follows: On the day named the deceased was a mail carrier, carrying mail between White Swan and North Yakima, in Yakima county. At about noon of that day, when he was driving a light wagon to which was attached a team of horses and carrying one passenger, he reached the main road leading into North Yakima a few miles therefrom. He stopped his team and wagon on the left-hand side of the road. The road at this point was a graveled turnpike 17 feet in width. Running parallel with this graveled road and to the right of it was a common dirt road about 5 feet wide. This dirt road was about 2 feet lower than the main traveled graveled road. Between the dirt road and the graveled road there was a strip of weeds or small sagebrush and gravel. This strip was about 4 feet wide and inclined to the dirt road, so that vehicles were readily driven from one road onto the other. Mr. Stephenson, Action by Florence E. Stephenson, admin- after stopping his hack at the left-hand side istratrix, against Bert Parton and others. of the graveled road, left the passenger In an action for causing death, where it is not complained that the aggregate damages awarded are excessive, a verdict for specific sums to the widow and two children of decedent will not justify a reversal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. 1070.] Department 1. Appeal from Superior Court, Yakima County; Thomas E. Grady, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes dict. [4] Upon the trial the court instructed the jury as follows: holding the team, while he had a conversa- | grant a judgment notwithstanding the vertion with a man who was working upon the road. He then returned to the back part of his wagon, and was drawing a rope therefrom at the hind wheel and on the righthand side of the wagon. He was standing about the center of the graveled road. Ahead of Mr. Stephenson's wagon and on the left thereof, and outside of the graveled road, was a buggy standing, with a horse tied behind it. While Mr. Stephenson was at the back of his wagon taking the rope therefrom, Miss Parton came up, driving an automobile in the same direction Mr. Stephenson's team was headed. When 200 or 300 yards away, she saw him and signaled with her automobile horn. Stephenson glanced in that direction, but continued to take the rope from his wagon. Miss Parton drove up to him, and, the witnesses for the plaintiff testified, struck him with the front of her automobile, knocked him down, dragged him a few feet, and stopped her automobile before the hind wheel thereof ran over him. The day was clear and bright. The surface of the road was level and smooth, and there was no one else in the road, and nothing to obstruct the view in either direction for several hundred yards. There is some evidence in the record to the effect that Miss Parton, after she blew the horn of her automobile, did not see the deceased until she was upon him. The defense was that when Miss Parton drove up near to where Mr. Stephenson was standing, he turned and stepped a few steps in front of the automobile, and that in doing so, Miss Parton could not escape striking him. It is "If you find that the deceased, Oliver P. Stephenson, at the time and place alleged in the public highway in the act of taking a rope the complaint, was standing by his vehicle in therefrom in full view of the defendant, Ruth Parton, and while so standing, without changand carelessly drove the automobile, or negliing his position, said Ruth Parton negligently gently and carelessly permitted it to run against him, without exercising reasonable care to avoid him, and thereby caused injuries from which he died, she would be guilty of negligence, and the plaintiff would be entitled to a verdict. In this connection I also instruct you that, even though you may not be convinced from the evidence that the deceased sustained the injuries from which he died in the manner alleged and set forth in the complaint, but are convinced that the deceased had turned from his vehicle and was in the act of going away from it, and was run into by said automobile without negligence on his part, as I will hereafter refer to, and that his being run into by said automobile was the result of carelessness and negligence upon plaintiff would nevertheless be entitled to a verthe part of the defendant Ruth Parton, the dict." It is argued by the appellants that the first part of this instruction was erroneous because it placed the entire burden of avoiding the accident on Miss Parton, and exonerated Stephenson from using any care to avoid the collision with the automobile. There is no merit in this contention, because it is plain that if Mr. Stephenson was standing in the highway, it was the duty of Miss Parton, having abundant room to do so, to avoid striking him. It is plain that if these were the facts, Miss Parton was negligent. The rule is laid down in 2 R. C. L. p. 1184, as follows: "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." In Lewis v. Seattle Taxicab Co., 72 Wash. 320, 130 Pac. 341, we said: [1-3] It is first argued by the appellants that there was no evidence of negligence on the part of Miss Parton; and, second, that the evidence shows contributory negligence on the part of the deceased. If the facts are as stated by the respondent's witnesses, that Mr. Stephenson was standing on the right side of his wagon, drawing a rope therefrom, "The footman may rely on the presumption it was clearly the duty of Miss Parton, who that, so long as he occupies one place or pursues a given course, he need not be run into, and was passing him in that position, to avoid to fail to keep a lookout for the approach of him. The evidence shows that there was such vehicles is not necessarily want of care. ample room in which to avoid him. The degree of care required of such a person of course varies with the circumstances. It denegligence to run upon a man who is stand-pends largely upon place and upon the condition ing in the highway surrounded by the circumstances here related. While it is no doubt true that a person in a highway must use care, yet when one is rightfully in the highway, and standing there, another person certainly cannot run him down without being guilty of negligence. If, as is contended by the appellants, the deceased was in a place of safety, and stepped in front of the automobile where there was no chance to avoid being struck, the deceased was guilty of negligence. These questions, under the evidence, were clearly questions for the jury. We are satisfied that the court did not err, therefore, in refusing to direct a verdict in of the street; whether the street is crowded with traffic or comparatively free therefrom; used by travelers on foot, and perhaps on many whether he enters the street at a place usually other conditions; but the degree of care requir ed is ordinary care under the circumstances; and this, as we say, may be vastly different from tracks upon which railway or street cars are opordinary care with reference to crossing fixed erated." It follows that if the deceased was standing in the road attending to his business, it was clearly the duty of Miss Parton to avoid him in passing with her automobile, especially where there was ample room for so doing. [5 It is next argued that the second part effect, tells the jury that if the deceased met his death while walking away from his hack, and was run into by the automobile, still the jury must return a verdict for the plaintiff. The instruction, we think, does not go to that extent. It simply tells the jury that if they find that the deceased turned from his vehicle, was going away from it, and was run into without negligence on his part, and that his injury was the result of carelessness and negligence on the part of the defendant Ruth Parton, the plaintiff would nevertheless be entitled to recover. We think this instruction was correct, and not confusing. that while Miss Parton was approaching the deceased, she did not see him from the time she blew her horn, a distance of 200 or 300 yards, until she was upon him; that when she came too near him to stop her machine, he stepped in front of the machine, and was thereby injured. [7] While there may be some doubt as to the application of the rule of last clear chance in this case, we think the instruction complies with the rule as stated in Mosso v. E. H. Stanton Co., 75 Wash. 220, 134 Pac. 941. It is apparent that the trial court attempted to comply with the rule stated in [6] The court also gave the following in- that case. In Chase v. Seattle Taxicab, etc., struction: Co., 78 Wash. 537, 139 Pac. 499, we said: " where she was about to pass some one who was in the highway, and to avoid him. We think the instruction was not misleading, nor sufficient to warrant a reversal of the case. "In connection with the alleged negligence upon the part of the deceased and upon the part of the defendant, Ruth Parton, there is another rule of law which has a twofold application, commonly known as the doctrine of last clear chance. In the application of this doctrine I instruct you that if you believe from the evidence that the deceased, Oliver P. Stephenson, was negligent in failing to see the approaching automobile and move out of the way so that it could pass in safety, or negligently attempted to cross the road in front of the on-coming automobile, such negligence on his part would not defeat the plaintiff's right to recover, if the said Ruth Parton in driving said automobile actually ly saw that he was in danger and should have appreciated the fact that he was in danger, if you so find, in time to have avoided running into him, by the exercise of reasonable care and negligently failed to exercise such care. The other application of the doctrine is that if you believe that the deceased, Oliver P. Stephenson, was negligent in failing to see the approaching automobile and move out of the way so that it could pass in safety, or negligently attempted to cross the road in front of the on-coming automobile, and if you believe that his negligence had, prior to the instant of injury, terminated or culminated by placing him in a situation of danger such that the exercise of ordinary care on his part alone would not thereafter have avoided the injury without the co-operation of ordinary care on the part of said Ruth Parton, and that she, by keeping a reasonably vigilant lookout, could have seen and appreciated the exposed condition of the deceased in time to have avoided the injury, by the exercise of reasonable care, and negligently failed to keep such lookout or to exercise such care, then the deceased's prior negligence would not bar the plaintiff's right of recovery." It is argued by the appellants that this instruction was erroneous and not justified by the evidence in the case; and it is contended that the doctrine does not apply where both parties are equally guilty of concurring acts of negligence, each of which, at the very time when the injury occurred, contributed to it. This, no doubt, is the rule. Under the facts as detailed by the witnesses on behalf of the plaintiff, there would be no room for the doctrine of last clear chance. But the evidence [8] It is complained lastly that the court erred in permitting the jury to segregate the damages to the widow and the two minor daughters of the deceased. The jury returned a verdict in favor of the widow in the sum of $2,000, in favor of the minor daughters, one for $700, and the other $800. This court has held in Koloff v. Chicago, M. & P. S. R. Co., 71 Wash. 543, 129 Pac. 398, that an action of this kind is not for the benefit of the estate, but is for the benefit of the widow and children who would share jointly in any damages recovered. It is not claimed by the appellants that the total amount of the judgment, $3,500, is excessive. But they do claim that in allowing the jury to segregate the damages, the effect was to enhance the damages, to their prejudice, by permitting the jury to bring in three verdicts instead of one. But where no claim is made that the total damages are excessive, we cannot understand how the appellants are injured thereby. While we do not desire to approve the practice, we think there is not sufficient in this to warrant a reversal. The judgment is therefore affirmed. MORRIS, C. J., and CHADWICK, FULon the part of the defendants tended to show | LERTON, and ELLIS, JJ., concur. |