16 freight cars on the long siding; that respondent had left the child in charge of his wife, its mother, at their home, who permitted her to cross the tracks to the hill on the opposite side and play with other children; that, after watching the child go across, the mother went into her kitchen, leaving the door open; that shortly thereafter the train backed down the long siding, when the child, returning alone and unattended, stepped on the track and was killed; that no employé of the appellant saw the child until after the accident; that no employé was on the car which struck the child; and that appellant made no claim to ringing its bell or sounding its whistle, its employés being engaged in moving freight cars within its switching yards, and not, according to its contention, upon any public street or highway. The only substantial conflict in the evidence was over respondent's contention that a well-defined pathway existed, which was used by the general public and intersected the tracks immediately in front of his house. In his brief the respondent continually assumes the existence of a highway, called "Ninth street," upon which the railway tracks were located, and upon which his house fronted to the east; but there was no competent evidence showing that any such street ever existed. Respondent contends that, at the time the child was killed, she was on Ninth street opposite his house, on the above-mentioned alleged pathway, that had been used by the public for many years. There was evidence given by different witnesses to the effect that people, both adults and children, living in the immediate neighborhood, had frequently crossed the tracks; but the evidence fails to show that there was a well-worn track at any particular point, as seems to be contended by respondent. A number of excellent photographs were admitted in evidence with the consent of both parties; but while they most clearly and distinctly show the buildings, railway tracks, abutment, sea wall, piling, respondent's dooryard, fence, and gate, with other surroundings, it is nevertheless impossible to distinguish upon them the slightest indication of any street or any pathway across or upon the railway tracks at any point near the scene of the accident. The substantial effect of the evidence as disclosed by these photographs and the oral testimony of the various witnesses is that the different persons who lived in the neighborhood and who walked back and forth over the tracks did so at such points as were severally convenient to them. But, were we to assume that a distinct pathway did exist opposite respondent's house, we could not, for reasons hereinafter mentioned, permit the respondent to recover in this action.

The appellant contends that the train was not running at an excessive rate of speed; that there was no public street, crossing, or path, at or near the point of the accident; that it was not required to give any signal

by bell or whistle; that the child was a trespasser; and that the contributory negligence of the parents bars a recovery by respondent. As we view the evidence, in connection with the special findings, there is no showing of negligence on the part of the appellant sufficient to make it liable for damages. But, assuming that such negligence did exist, we are nevertheless compelled to hold that the negligence of the respondent as father of the child, and the mother in whose care she was left, was such that no recovery by respondent can be permitted. The child was of such tender years that no negligence could be imputed to her. She was unable to protect herself or realize the dangers to which she was subjected. Had she been, not killed, but permanently injured, and were she now prosecuting an action for damages, the question whether the negligence of her parents could be imputed to her and bar a recovery might possibly arise. Here the father sues for damages resulting from the death of his child, and he will be the sole beneficiary of any judgment recovered. In Bellefontaine, etc., Ry. Co. v. Snyder, 18 Ohio St. 399, 98 Am. Dec. 175, an action prosecuted by a minor child, by her next friend, to recover damages sustained by personal injuries to herself, the Supreme Court of Ohio held that the negligence of a parent or custodian of the child, who was by reason of tender years unable to care for herself. could not be imputed to the child, so as to defeat her right to recover damages from a railway company for the injuries caused by its negligent acts. But in Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 670, when the father of the same child afterwards sued in his individual right for damages to himself arising from the loss of the services of his child in consequence of the same accident, the Supreme Court of Ohio held that he could not recover, as his right to do so was barred by his own negligence; it having appeared that he intrusted the child to the custody of another, who was guilty of negligence contributing to the accident. This distinction between an action for the benefit of the child and for the sole benefit of the negligent parent has been recognized by this and other courts. Roth v. Union Depot Co., 13 Wash. 525, 43 Pac. 641, 44 l'ac. 253, 31 L. R. A. 855; Eskildsen v. Seattle, 29 Wash. 583, 70 Pac. 64; Pratt Coal & Iron Co. v. Brawley, 83 Ala. 371, 3 South. 555, 3 Am. St. Rep. 751; Williams v. T. & P. R. R. Co., GO Tex. 205; Bamberger v. Citizens' Street R. Co., 31 S. W. 163, 95 Tenn. 18, 28 L. R. A. 486, 49 Am. St. Rep. 909.

The unfortunate death of this little girl naturally arouses every feeling of human sympathy, and doubtless appealed to the jury; but the facts are that respondent's wife, with whom he left the child, assented to her going across the tracks unattended; that the mother watched her while leaving; that she was permitted to return alone; and that

deceased after the door between the rooms had been closed, and while defendant was in conversation in the other room, were inadmissible against her, though she might by listening actually have heard the statements made and opened the door and denounced them as false. 3. SAME-RELEVANCY.

Ante mortem declarations made by deceased after he was shot, in defendant's presence, concerning her conduct toward him at times, other than when the shooting occurred, the fact that deceased was at one time possessed of considerable property which he lost through defendant's misconduct, and expressions of malice and hatred against her, were irrelevant. 4. HOMICIDE-CAUSE OF DEATHI-NEGLIGENT TREATMENT BY PHYSICIAN-EVIDENCE.

Under the rule that unskillful or negligent treatment of the wound by the wounded person or his physician which may have aggravated deceased's condition and contributed to his death does not relieve the assailant from liability, unless such negligent and unskillful treatment was the sole cause of death, defendant was not entitled to show that the wounds inflicted on deceased were not mortal in more than 1 per cent. of the cases, and that the treatment afforded deceased by the physicians in charge was not the best medical treatment.

5. CRIMINAL LAW APPEAL PRESENTATION OF ERRORS IN TRIAL COURT.

The court's omission to give cautionary instructions as to the evidence against accused will not constitute error available on appeal, where no such instructions were requested.

Appeal from Superior Court, Spokane County; W. A. Huneke, Judge.

Josephine Baruth was convicted of manslaughter, and appeals. Reversed, and new trial granted.

Sullivan, Nuzum & Nuzum and M. J. Gordon, for appellant. R. M. Barnhart, Fred C. Pugh, and A. J. Laughon, for the State.

1906,

FULLERTON, J. On March 26, the appellant shot one C. L. Baruth with a revolver, inflicting upon his person certain wounds from which he died four days later. Thereafter she was informed against for murder in the second degree, tried and found guilty of manslaughter, and sentenced to imprisonment in the penitentiary for a term of 10 years and to pay a fine of $1,000. From the judgment and sentence pronounced upon her, she appeals.

The assignments of error relate chiefly to the admission and exclusion of evidence, and the giving of certain instructions and failing to give certain others. These we will notice in the order they are discussed in the appellant's brief.

The state sought to prove the manner in which the crime was committed by showing the declarations of C. L. Baruth made to certain of his neighbors on the evening of the day the shooting occurred. To that end it called as a witness one W. E. Connelly. Mr. Connelly, after testifying to his quaintance with the deceased and certain preliminary matters, further testified that he, in company with one Charles Steele. called at the Baruth home about half past 7 in the evening of the day of the shooting; that Mr. Baruth was then lying on a couch

in the front room of the house talking to a Mr. Le Fevre, who had also called upon him; that Mrs. Baruth was not then at home; that Mr. Le Fevre stayed for about a half an hour after the witness and Steele arrived, leaving just about the time Mrs. Baruth returned; that after the departure of Le Fevre Mr. Baruth arose from the couch and took the chair vacated by him; that Mr. Steele sat next to him, and the witness sat on the opposite side of the same room; that Mrs. Baruth took a seat at a table in an adjoining room-the kitchen-placed just to the right of the door opening between the rooms, in sight of the witness, the door between the rooms being open; and that, while the parties were in these positions, Mr. Baruth told the story of the shooting. This story the witness repeated, over the objection of the appellant, in the following language: "A. Mr. Baruth started it by saying: "This is the first time that I ever revealed a secret regarding my family, or spoke to any man in Medical Lake or anywhere else of this trouble about my family in any way, and I defy any man to say so, but this is getting to a point where I will have to talk, I guess.' And he went on to say that, when he got home Sunday evening, he came in the house, he said, and laid down on the sofa, and picked up a paper, and his wife came in and said: 'Where have you been to-day?" (Objection by defendant.) The Court: This is a statement the deceased made? The Witness: Yes, sir. The Court: Proceed. A. (continued). He said: 'She asked me where I had been, and I made no reply. I laid there and went ahead reading just as though she wasn't talking. She next called me a few vile names, and by and by went off and left me, and at night I retired.' The next morning she comes in again and fetched in a coat and spread it down, and she says: 'Here is some mud on this coat. That proves the statement I made last night to you, and here is also a hair, and it is not mine, either' -at the same time pulling a hair off and showing it to him: She says: "This is not my hair either.' He said he still made no reply, but laid there until she retired to the kitchen, and went on about getting breakfast again, and she commenced to tell the children what kind of a man he was, and he says, "This much I couldn't stand,' and he jumps up out of bed and grabs his pants and went through into the kitchen door and saysQ. Indicate. A. Here is where he was. He came through these two doors this time, this door and this door, and he asked her, repeating the words he used, 'What in hell and damnation is the matter with you?' he says. Those are the very words he said to her. She retired through this door and out into this bedroom here, and through this way, and got a revolver and returned, and began shooting at him, and he claimed when she returned to the room where he was standing he was stooped over ready to put on

He

his pants. He had his pants in his hand when she fired the first shot, which struck him here (indicating). He grabs a chair up that sat here, and held it up between him and her, and he says she was shooting very rapid, and he held the chair up between them, and backed into this room through this door, and, just as he got the door closed, he stood at the side of the door here and he looks around, and she stands here at this window right by the side of him with the gun up, looking through the window. retreats back, and he says: For God's sake don't shoot me any more. You have shot me now.' That there is where Mrs. Baruth says, 'You ought to have stopped when I told you.' Q. She said that at that point? Did he say that she said that? A. Yes; he said that she said that he ought to have stopped when she told him, so he retires to this room again, and sat down and sends for McCorkle, sends the little girl over to McCorkle's and McCorkle came over and went for a doctor. Q. Do I understand that Mrs. Baruth stated to Mr. Baruth that then is when he ought to have stopped? A. Mrs. Baruth said to Mr. Baruth he ought to have stopped when she told him to. The Court: Did she interrupt his statement to you, when he was making that statement? The witness: She just says The Court: While he was telling you that? A. When he was telling me that she says he ought to have stopped when she said so. Q. I don't understand the statement, and I don't think the jury does. You say he stated, Mr. Baruth stated that she that she said he ought to have stopped? A. She says, when Baruth says that, she says to Steele right there she turns to Steele and says, 'He ought to have stopped when I told him to.' Q. Proceed with any further conversation that you heard there or which was had, either by the defendant or Mr. Baruth in her presence. A. He said he sent for Mr. McCorkle to come over and he came, and he sent him for the doctors. Q. During that conversation did he tell you how many times he was hit during the shooting? A. No, sir; he didn't say -yes; he said when we went in he was shot twice. Q. I mean at this conversation. Do you recall anything further of the conversation that passed between you and Mr. Baruth in the presence of the defendant, or that was said by the defendant at that time? A. Mr. Steele he gets up, and goes into the room and talks with Mrs. Baruth and Mr. Baruth, and I sat there and talked for probably half an hour that he was in there. Q. During this conversation just him and you there alone? A. What I have stated was heard by all. Q. When Mr. Steele went into the kitchen where Mrs. Baruth was, do you know whether or not the door was closed after him. A. When he went into the kitchen, he closed the door behind him; yes, sir. Q. Did you from where you were sitting bear any conversation between Mr.

Steele and Mrs. Baruth with respect to the shooting? A. I did not. Q. And the subsequent conversation with the deceased on that night was not in the presence of the defendant? A. The remainder was between Baruth and I alone. Q. In that conversation did Mr. Baruth repeat the names which he said his wife called him? A. Yes, sir. Q. What did he say they were, Mr. Connelly? (Objection by defendant. Overruled. Exception.) Q. If you recall what those names were, state them? A. Well he said she called him a 'pimp' and a 'whore master,' and that he was chasing women all the time, and a few other vile names. I couldn't say exactly what he did say. He says, "This was a common occurrence when I came home,' and that he paid no attention to it, when he came home and dressed up. He said: 'Always when I went away from home dressed up, put on a white shirt and went down town, and came home there was always trouble.'"

Mr. Steele was also called as a witness. He described the situation pretty much as it was described by the preceding witness, probably placing Mrs. Baruth a little closer to the open door than she was placed by Mr. Connelly, and adding that the place where she sat was about 10 feet distant from the position of Mr. Baruth. The record then shows the following: "Q. Proceed, Mr. Steele, and relate to the jury as near as you can recall what was said and done during the conversation that has been referred to at the time and place referred to, and when the parties were maintaining toward each other the relative positions that you have described, touching the shooting and circumstances that led up to and surrounded the shooting? Mr. Swanson: We object for the reason it has not been shown the defendant would have heard the statement made at the time, but as in fact the circumstances show that she would not be apt to have heard it. He says that the way they were sitting it must have been about 10 feet, and from the relative positions shown by the map the voice would have to travel first in an easterly direction then west to this door, and the circumstances show that this defendant could not very well have heard it, and I think anything as questionable as that ought not to be allowed to go in here. The statement was self-serving, not a dying declaration, and not a part of the res gestæ. The Court: Objection overruled. Exception. Q. Proceed, Mr. Steele. A. You want the story related? Q. I want the story related at that time and place, and any interruptions or suggestions that may have come from Mrs. Baruth or any question or statement that you or Mr. Connelly or any one else present made in the presence and hearing of Mrs. Baruth respecting this matter-the substance of it as near as you recall. A. When he started to tell his story, he started out by saying: "This is the most contemptible piece of humanity