The judgment should be affirmed.

SEARLS, C., and HAYNES, C., concurred.

For the reasons given in the foregoing opinion, the judgment is affirmed.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

Hearing in Bank denied.

[S. F. No. 72. Department Two.-July 18, 1896.] EDWARD KENNY ET AL., APPELLANTS, v. JOSEPH P. KELLY ET AL., RESPONDENTS.

STREET ASSESSMENT-WORK AT INTERSECTION OF STREET-VOID DOUBLE ASSESSMENT-APPEAL.-Where lots at the intersection of streets are assessed for double the amount legally chargeable thereon for work done at the intersection, which is assessed and apportioned separately from that done on the main street, such double assessment is illegal and void, and the owners of the lots may resist the enforcement of such assessment thereon as void upon its face, without appealing to the city council for correction of the assess

ment.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. HEBBARD, Judge.

The facts are stated in the opinion.

J. C. Bates, for Appellant.

Section 11 of the general street law is plain and explicit that the owner's sole remedy for all errors not of a jurisdictional nature is by appeal, and unless so taken, no defense in an action on the assessment. (Ede v. Knight, 93 Cal. 162; Rollins v. Wright, 93 Cal. 397; McDonald v. Conniff, 99 Cal. 386; Dowling v. Conniff, 103 Cal. 75; McSherry v. Wood, 102 Cal. 647; Warren v. Riddell, 106 Cal. 352; Blair v. Luning, 76 Cal. 134; McVerry v. Boyd, 89 Cal. 304, 310; Fanning v. Leviston, 93 Cal. 188; Himmelmann v. Hoadley, 44 Cal. 279; Perine v. Forbush, 97 Cal. 311.)

Joseph P. Kelly, Respondent in pro. per., and for Respondent Annie A. Kelly.

The assessment upon its face shows that the defendants' property was charged with double what the law authorized and directed, and hence they were not obliged to take an appeal to the board of supervisors, the assessment being absolutely void. (Ryan v. Altschul, 103 Cal. 174.)

BRITT, C.-Action to enforce an assessment against certain lots of land, for work done in the improvement of D street, in the city and county of San Francisco. Twenty-fourth avenue in said city terminates in said D street, and the lots in question, having a frontage on said avenue, were assessable for the expense of the work done on the intersection of the two streets, according to the rule prescribed by subdivision 4 of section 7 of the act to provide for work upon streets, etc., as amended. (Stats. 1891, p. 202.) This allows only one-half of the expense of the work on the intersection to be charged upon the two quarter-blocks cornering thereon; the court found, however, that the whole expense of the work done on the intersection was, in this instance, assessed upon such two quarter-blocks, one of which included the lots of defendants; and that the lots were thus assessed for double the amount legally chargeable thereon; also that the work done on intersections was assessed and apportioned separately from that done on the main street. The assessment upon said lots for the work on the intersection was held to be void, and defendants had judgment.

Appellants contend that the illegal assessment found by the court is no defense to this action; that the owners should have had the same corrected by appeal to the board of supervisors, as provided in section 11 of the act. But if the form of the assessment followed the statute, (Stats. 1891, sec. 8), it must have appeared on the face thereof that the lots of defendants could not, under any circumstances, be liable for a portion

of the expense assessed against them; counsel does not claim, indeed, that the illegality was not thus apparent. The case, then, is within the principle, several times declared or assumed, that the owner may, without appealing to the city council, resist the enforcement of an assessment void on its face. (Ryan v. Altschul, 103 Cal. 174; Buckman v. Landers, 111 Cal. 347; McDonald v. Conniff, 99 Cal. 386, 390.) The judgment should be affirmed.

HAYNES, C., and SEARLS, C., concurred.

For the reasons given in the foregoing opinion the judgment is affirmed.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

[S. F. No. 149. Department Two.-July 18, 1896.] JAMES DALY, AN INFANT, BY HIS GUARDIAN, RESPONDENT, v. ADOLPH F. HINZ, APPELLANT.

NEGLIGENCE-RUNNING OVER CHILD IN STREET-CONTRIBUTORY NEGLIGENCE OF PARENTS-QUESTION OF FACT-NONSUIT-SUPPORT OF VERDICT. In an action for the negligence of the defendant, in carelessly driving a buggy over a child, seven years old, while playing in the street, where there is evidence tending to prove negligence on the part of the defendant, and there is no proof of contributory negligence on the part of the parents of the child other than the mere fact that the child was unattended in the street, the question of their contributory negligence is one of fact for the jury, and a nonsuit of the plaintiff is properly denied; and a verdict for the plaintiff in such case will not be disturbed upon appeal.

ID. BURDEN OF PROOF.-The burden of proving contributory negligence of the parents of the child devolves upon the defendant, unless it is made to appear by the evidence of the plaintiff.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. JOHN HUNT, Judge.

The facts are stated in the opinion.

Eugene F. Bert, for Appellant.

Plaintiff's testimony shows conclusively that he and his parents were guilty of such negligence as contributed to the accident, without which it would not have happened, and therefore the verdict was contrary to the preponderance of evidence, and against law. (Gahagan v. Boston etc. R. R. Co., 1 Allen, 187; 79 Am. Dec. 724; Lucas v. New Bedford etc. R. R. Co., 6 Gray, 64; 66 Am. Dec. 406; Gavett v. Manchester etc. R. R. Co., 16 Gray, 501; 77 Am. Dec. 422; Todd v. Old Colony R. R. Co., 3 Allen, 18; 80 Am. Dec. 49; 7 Allen, 207; 83 Am. Dec. 679; Wright v. Malden etc. R. R. Co., 4 Allen, 289; Butterfield v. Western R. R. Co., 10 Allen, 533; 87 Am. Dec. 678; Stevens v. Oswego R. R. Co., 18 N. Y. 422; Wilds v. Hudson River R. R. Co., 24 N. Y. 433; Clark v. Eighth Avenue R. R. Co., 36 N. Y. 136; 93 Am. Dec. 495; Wilcox v. Rome etc. R. R., 39 N. Y. 358; 100 Am. Dec. 440; Waite v. N. E. R. Co., 96 Eng. Com. L. 726; Singleton v. E. C. R. Co., 97 Eng. Com. L. 287; Kline v. Central Pac. R. R. Co., 37 Cal. 400; 99 Am. Dec. 282; Needham v. San Francisco etc. R. R. Co., 37 Cal. 409; Flynn v. San Francisco etc. R. R. Co., 40 Cal. 14; 6 Am. Rep. 595; Flemming v. Western Pac. R. R. Co., 49 Cal. 253; Meeks v. Southern Pac. R. R. Co., 52 Cal. 602.) The motion for nonsuit should have been granted. (Meeks v. Southern Pac. R. R. Co., supra; Needham v. San Francisco etc. R. R. Co., supra; Gay v. Winter, 34 Cal. 153; Kline v. Central Pac. R. R. Co., supra; Flynn v. San Francisco etc. R. R. Co., supra; Flemming v. Western Pac. R. R. Co., supra.)

M. C. Hasslett, for Respondent.

Negligence is not imputed to either the parent or child, but the question of negligence must be submitted to the jury and passed upon by it like any other fact. (Newman v. Phillipsburg etc. R. R. Co., 52 N. J. L. 446; Norfolk etc. R. R. Co. v. Groseclose, 88 Va. 267-70; 29 Am. St. Rep. 718; Sioux City etc. R. R. Co. v. Stout, 17 Wall. 657; Wymore v. Mahaska County, 78 Iowa, 396;

16 Am. St. Rep. 449; Battishill v. Humphreys, 64 Mich. 494-503; Shippy v. Au Sable, 85 Mich. 280; Winters v. Kanzas City etc. Ry. Co., 99 Mo. 509; 17 Am. St. Rep. 591; Chicago City Ry. Co. v. Wilcox, 24 N. E. Rep. 419; Ferguson v. Columbus etc. Ry., 77 Ga. 102.) As there is no fixed standard of age when a child ceases to be non sui juris and becomes sui juris, the courts usually regard the question as one of capacity, and require the jury to determine the capacity of the child, and measure of care required of the particular child under the circumstances of each case. (Gunn v. Ohio etc. R. R. Co., 36 W. Va. 165; 32 Am. St. Rep. 842; 37 W. Va. 421; Buck v. People's etc. Co., 46 Mo. App. 555; Schnur v. Citizen's Traction Co., 153 Pa. St. 29; 34 Am. St. Rep. 680; Louisville etc. Ry. Co. v. Sears, 38 N. E. Rep. 837; Bottoms v. Seaboard etc. R. R. Co., 114 N. C. 699; 41 Am. St. Rep. 799; Chicago City Ry. Co. v. Willcox, 24 N. E. Rep. 419; Huerzeler v. Central etc. R. R. Co., 139 N. Y. 490; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504; Moebus v. Herrmann, 108 N. Y. 349; 2 Am. St. Rep. 440; Sykes v. Lawlor, 49 Cal. 236; Schierhold v. North Beach etc. R. R. Co., 40 Cal. 447.)

VANCLIEF, C.-This is an action to recover damages for personal injuries.

At the time of the injuries plaintiff, then about seven years of age, was upon a public street in the city of San Francisco, and was playing "tag" with his sister and another girl, each of the age of about eleven years. They were in front of the house where plaintiff and his parents resided. Defendant was driving a horse attached to a buggy, which passed over the plaintiff, breaking his left thigh bone and otherwise injuring him. Plaintiff had been going to school for about a year, at some distance from his home, crossing two railroad tracks in going and returning. He generally went alone in the morning; sometimes little girls would be with him coming home. On these occasions he always safely took care of himself.