refers to the whole work under the contract. It is conceded that, at the time this action was brought, the defendants were holding less than twenty per cent of the contract price with extras. The court properly found, therefore, under the contract, and under the conceded facts in the case, that this $1,928.86 was not due; and not being due, it follows, as a matter of course, that judgment should not have been entered therefor. This being true, there was nothing for which the court could enter a judgment. The case is like one where a building has not been completed and a party seeks to obtain a judgment for the contract price when the work has not been done. Where the parties have, by their agreement, made some act or condition precedent to payment, that act or condition must be fulfilled before the payment is due. Boots v. Steinberg, 100 Mich. 134, 58 N. W. 657; Harmon v. Ashmead, 60 Cal. 439.

We are satisfied that the trial court, upon the findings made, should have dismissed the action. The judgment is therefore reversed.

CROW, MAIN, ELLIS, and FULLERTON, JJ., concur.

[No. 12089. Department Two. January 16, 1915.]

B. F. ALLISON, Respondent, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant.1

RAILROADS-INJURIES AT CROSSINGS-COLLISION WITH AUTOMOBILE -CONTRIBUTORY NEGLIGENCE-EVIDENCE-SUFFICIENCY. The plaintiff was guilty of contributory negligence, as a matter of law, in running his automobile into a train on a spur track crossing a city street, in the nighttime, where it appears that the automobile was traveling fifteen miles per hour and could have been stopped within fifteen or twenty-five feet, that its headlights enabled the plaintiff to see an object within a radius of one hundred feet, which was the width of the street, that the train, with signal lights in view, was moving at about four miles an hour and was stopped before the collision within four feet, after having moved into the street sixty or seventy feet, and the box car first coming into the street was struck with great force by the automobile within eight feet of the front end of the car; since it is clear that the train came within the zone covered by the headlights and could or should have been seen by the plaintiff in time to have avoided the accident, when in fact, plaintiff did not see the train until the moment of the impact.

Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered November 14, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained at a railroad crossing. Reversed.

Geo. W. Korte and H. S. Griggs, for appellant.
Dunkleberger & Heinly, for respondent.

MAIN, J.-The purpose of this action was to recover damages for personal injuries and for damages to an automobile. The cause was tried to the court and a jury. The plaintiff obtained a verdict for $575. From the judgment entered upon the verdict, the defendant appeals. At appropriate times, the appellant made motions for nonsuit, directed verdict, and judgment notwithstanding the verdict.

'Reported in 145 Pac. 608.

The accident occurred on Pacific avenue, in the city of Tacoma, Washington, at a point about thirty feet south of the intersection of Twenty-sixth street with Pacific avenue. Almost opposite Twenty-sixth street, Delin street intersects Pacific avenue. On Pacific avenue there are two street car tracks at the point of collision. The street at this point is one hundred feet wide. The grade of the street at the point in question is four per cent rising to the south. Crossing Pacific avenue from east to west, and about thirty feet south of the intersection of Twenty-sixth street, is a spur track of the defendant company. This company has a franchise permitting the operation of trains over this track between one and five o'clock in the morning. At the intersection of Delin street with Pacific avenue, there is an arc light. At the northwest corner of the intersection of Twenty-seventh street with Pacific avenue, there is an arc light, Twenty-seventh street being the next street south of Twenty-sixth street.

The plaintiff resides about one and one-half miles east of Parkland, which is approximately twelve miles south of Tacoma. The plaintiff, in going to Tacoma from his ranch and in returning, passes in and out over Pacific avenue. On the evening of May 3, the plaintiff left his ranch in his Pony Tonneau Chalmers-Detroit automobile. It was a thirty horse power car, built for four people. The plaintiff knew that the spur track crossed Pacific avenue, and had frequently passed over it, but testified that at no time had he ever seen cars upon the track. The respondent had driven an automobile for about seven years. His eyesight and hearing were good. Some years before he had been in the railway service as a brakeman.

On the evening of the day mentioned, he reached the city about 6:30 p. m., and from that time until 1:30 in the morning spent the time about the business section of the city, attended the Empress theater, and started home about 1:30. The night was a little misty, dark, or cloudy. Some of the

witnesses testified that it had been raining a little earlier in the evening. The pavement was wet. In going home, he was proceeding up Pacific avenue. At some point before reaching Twenty-sixth street, he met a street car. At this time, the defendant company was moving a train consisting of one box car loaded with flour, an engine, and tender, over to Commerce street, which was to the west of Pacific avenue. Going west, the box car was in front, and between the box car and the engine was the tender. This train, when it approached Pacific avenue, stopped for the street car to pass. At this stop, the end of the box car was about even with the sidewalk. According to the appellant's evidence, there were two brakemen on top of the box car, one near either end, each of whom had a lantern. When the train approached Pacific avenue, these brakemen signaled to stop; and the train was stopped until the street car had passed. After the street car had moved on, the brakemen, or one of them, then signaled for the train to start, and the signal was communicated by the fireman to the engineer. The train moved out into Pacific avenue at the rate of approximately three or four miles per hour. On the northwest corner of the box car was a red light. As the train came out upon the avenue, the plaintiff was approaching from the city. The brakemen testified that they saw him coming and that one of them signaled to him with the lantern from the top of the car to stop. But he not heeding the signal, and it becoming apparent that a collision was imminent, a signal was given for the train to stop. The emergency brakes were set and the train came to a standstill within about four feet. The plaintiff's automobile hit the box car about eight feet from the west end, demolishing the automobile to such an extent that it was deemed inadvisable to have it repaired. When the collision occurred, the train had moved out into the street a distance of sixty or seventy feet. The plaintiff was injured in his

stomach and short ribs.

As to the manner of the accident, the plaintiff testified:

"The first indication I had of any obstruction in the street was, I noticed a car move up in front of me. The first thing I noticed to be certain of was the white letters on the dark brown. When I saw it I did all I could to stop. I slammed on the brakes for all I was worth and tried to stop, but I was very close to them. The color of the street and the color of the box car are so very alike at night you could not tell the difference."

Also: "I did not see them until I was right into them." He also testified that the lights upon his automobile were burning this was denied by other witnesses-and that by means of these lights an object could ordinarily be seen within a radius of one hundred feet. He testified that there were no lanterns in sight, and that the arc light at the corner of Delin street and Pacific avenue was not burning.

Witnesses other than those who were members of the train crew and who were disinterested, testified that the red light was on the northwest corner of the box car; that the two brakemen were on top of the car, each with a lantern. One witness testified that the arc light at the northwest corner of Twenty-seventh street and Pacific avenue was burning. This does not appear to be denied.

The headlights of the plaintiff's automobile would light a zone of the street fifteen feet wide. The plaintiff testified that, at the time of the collision, he was going fifteen miles an hour in intermediate gear with one cylinder missing; and that he could stop the car within a distance of fifteen feet.

Whether the defendant's positive testimony that the red light was on the northwest corner of the box car and that the two brakemen were on top of the car with lanterns and that there was a headlight on the end of the tender next to the box car is sufficient to overcome, as a matter of law, the negative testimony of the plaintiff that there were no lights or anything of that kind, we need not determine. Neither do we need to determine whether the defendant was negligent in failing to have a flagman on the ground to prevent the