(225 P.) running at 40 miles an hour. He said his car was going at the rate of from 8 to 10 miles, not to exceed 10 miles an hour, and that he could have stopped it within 5 or 6 feet, had he so desired. He testified that when he was near the middle of Third street he saw the defendant's car about 100 feet north of Chestnut street, but that he saw no reason why he should give it the right of way, because he was at the time near the middle line of Third street; also, that the other car was on the right side of Third street; that it was coming between 30 and 40 miles an hour; that the collision occurred when the fore wheels of his car were just out of the intersection; that the back part of his car was struck and the car was overturned. His testimony was to the effect that Third street was 50 feet wide from curb to curb; that when he first saw Mrs. Rosenbaum he knew she was coming fast, but thought he had no reason to stop. The charge in the complaint is that the defendant was driving at 40 miles an hour. The defendant claims that the plaintiff was shown by the evidence to be guilty of contributory negligence, and therefore cannot recover. It would seem that this charge is sustained by plaintiff's own testimony. He says that he was nearly at the middle of the intersection when he saw the defendant coming at a speed which he estimated at 30 or 40 miles an hour. If he were even at the middle line of Third street when he saw the defendant coming, he would have, according to his own measurement, to go 25 feet, plus the length of his car before he would be out of danger of collision. He estimated that the defendant's car was going practically four times as fast as he was going. It would therefore traverse the 100 feet as quickly as his car would traverse the 25 feet to the west line of the street. That being so, it was very apparent that, if neither one of them stopped or slackened speed, there would be a collision. The defendant, being at the right of the plaintiff, had the right of way, and it was plaintiff's duty to recognize that, having the right of way, she might not slacken speed. Under the ordinance he should have given her the right of way, and decreased his speed so that she could pass the point of intersection in safety. It appears from his evidence that he assumed that, because he was well toward the center line of the street, he had the right of way, thus as this court said in Golden Eagle Co. v. Mockbee, 68 Colo. 312, 189 Pac, 850, inverting the procedure prescribed by the ordinance. In that case this court was applying an ordinance of the city of Denver, which gave the right of way to the vehicle on the right. The trial court instructed the jury that whichever vehicle reached the point of intersection first had the right of way. This court said: 225 P.-53 were "This instruction is erroneous because it repeals the ordinance and because it is impracIf the left-hand car ticable. * running close to the curb, we might have, in an extreme case, the right-hand car required to stop two or three feet from the point of possible collision to yield the right of way to the other, which is then perhaps 30 or even 60 feet away. * "We think the right rule is that it is the duty of every driver, when approaching a street intersection, to use reasonable care to see whether there is likelihood of collision with any car approaching from the right, and, if to keep his car under such control that he can there is, to yield to it the right of way, and do so.' In Livingston v. Barney, 62 Colo. 528, 163 Pac. 863, we held that, where it appears from the plaintiff's own testimony that he had been guilty of contributory negligence he could not recover; that it was then a question of law for the court. We there said: "Upon the undisputed facts it is manifest that plaintiff cannot, and ought not to, recover, since plainly the injury sustained resulted from his own failure to exercise that degree of care for his own protection which both the law and common sense require of every person under circumstances such as are here disclosed." In that case the defendant had the right of way on Downing street, and the collision occurred at the crossing of Twentieth avenue. It was held that the plaintiff owed to the defendant the positive duty of looking to the right before he crossed Downing street, and that he was bound to know that any vehicle proceeding south on Downing street had the right of way. It appears that the plaintiff in that case did not see the approaching automobile until it was within a few feet of him. His negligence was therefore no greater than that of the plaintiff in this case, who knew of the approach of the defendant car, and is presumed to have known that it had the right of way, and yet took a chance of getting across in advance of the other car. In the last case cited we sustained the court in directing a verdict for the defendant. Under the authority of the above cases we hold that the court erred in refusing to give instruction No. 2, requested by defendant, which was that the right, and the evidence is that if he had so "It was the duty of the plaintiff to look to looked he would have seen the car in time to have stopped, and if he saw defendant's car in time to stop but neglected to do so, he was guilty of contributory negligence and therefore cannot recover." This instruction is in accordance with the established rule in this jurisdiction. Error is assigned upon the giving of other instructions, but, as no exceptions were saved to the giving, we cannot consider them. The judgment is accordingly reversed. CAMPBELL, and SHEAFOR, JJ., concur. leged, among other things, that petitioners' HAVER et al. v. MATONOCK. (No. 10821.) lands can be supplied with water through a (Supreme Court of Colorado. April 7, 1924. pipe line laid across the land of the defend Rehearing Stricken May 5, 1924.) 1. Eminent domain 262 (3)-Commissioners presumed to have considered all competent evidence and none other in determining necessity for taking. ant, Paul Matonock. It is sought to condemn a strip of Matonock's land for the purpose of laying the pipe line thereon. To the petition, Matonock filed an answer, denying most of the allegations of the petition, and alleging, among other things, that there is no "Zorn arroyo" or arroyo of any kind in the locality mentioned in the petition, and that there is no water available for the ditch and pipe line referred to in the pe On review of condemnation proceedings, presumption is that commissioners, like a court, considered all competent evidence and none other in determining necessity for taking. 2. Eminent domain 262(4)-Question on re-tition, except from the "Matonock spring," loview is existence of evidence warranting commissioners' finding as to necessity of tak ing. Question for Supreme Court, on review of decree dismissing condemnation proceedings on commissioners' finding of no necessity for taking, is whether there is any evidence warranting such finding. 3. Eminent domain cated on defendant's land, that defendant has a prior right to the waters of the spring, and that all of said waters in capable of being used on his land. The answer was filed June 30, 1922. On February 3, 1923, the defendant filed an application for the appointment of commissioninvolved in this proceeding. The court granters to determine the necessity for the taking 233-Commissioners to determine necessity of taking cannot determine right to intended use ed or whether it could ever be consummated. Commissioners appointed to determine necessity of taking cannot determine whether plaintiffs had right to use intended or whether such use could ever be consummated, and hence cannot consider, in proceeding to condemn land for water pipe line, whether there is any water which petitioners can use. 4. Eminent domain 196-Commissioners' findings of no necessity for taking held not based on competent evidence. In proceeding to condemn land for pipe line, commissioners' findings of no necessity, based on evidence of nonexistence of water which plaintiffs could appropriate and defendant's right to use all water sought by plaintiffs, should have been set aside as not based on competent evidence. the application. The commissioners found that no necessity existed for the tak ing. Thereafter the proceedings were, by the court, dismissed, and the petitioners or plaintiffs have sued out this writ of error, and the cause is now before us on their application for a supersedeas. [1, 2] The principal contention of the plaintiffs in error is that the court erred in refusing to set aside the finding of the commissioners. On review, the presumption is that a commission, like a court, considered all the competent evidence admitted, and did not consider other than competent evidence. 4 C. J. 780, § 2730. The record shows that there is such evidence as would have justified the commission in finding that a necessity existed for the taking sought by plaintiffs. The question presented to us for our determination is whether there is any evi dence warranting the finding, which was made, that no necessity exists. [3] The only evidence relied on, by defendant to support the finding of the commission is that which tends to show that there is in existence no water which the plaintiffs ever could have appropriated or can appropriate, John H. Voorhees and W. O. Peterson, both and that defendant already has, and is enof Pueblo, for plaintiffs in error. titled to use, all of the water which plaintiffs M. J. Galligan, of Pueblo, for defendant in desire to convey through the proposed ditch error. ALLEN, J. This is a proceeding under the Eminent Domain Act. It was instituted by the filing of a petition in the district court of Pueblo county, wherein it is alleged that the petitioners own tracts of land in the town of Rye, in Pueblo county, which can be supplied with water from "Zorn arroyo," which is described as "a tributary of Graneros creek, a tributary of Greenhorn creek, a tributary of the St. Charles river in water district No. 15." It is further al and pipe line. In his brief, defendant says: "If there was no Zorn arroyo, or if there was no water, then there could be no necessity for the pipe line." Further on he says: "Petitioners certainly have not shown that they had any water, and, if without water, the pipe line would be of no use, and consequently not a necessity." We cannot hold that the question of neces sity involves the question whether there is any water in existence which petitioners For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 P.) can use. To so hold would be to allow the commissioners, whose sole function is to determine the necessity for the taking, to determine questions of priority of appropriations of water, and, in this case, to determine the extent to which the several parties concerned in this proceeding may use waters from the Matonock spring or any waters found in the "Zorn arroyo," if such arroyo exists. It was not the duty of the commissioners, appointed in this case, to pass upon such questions. Their duty, under the order and the instructions of the court, was solely to determine the necessity of the plaintiffs' proposed ditch and pipe line for the intended use; not whether the plaintiffs had any right to the use intended, nor whether the intended use could ever be consummated. The question of necessity does not involve the right to condemn, nor whether plaintiffs could ever make use of the property sought to be condemned if they obtained it. The question of necessity simply involves the necessity of having the property sought to be taken for the purpose intended. The views above expressed are supported by the language of the opinion in Gibson v. Cann, 28 Colo. 499, 66 Pac. 879, where it was said that * "In determining the question of necessity for taking lands sought to be condemned for right of way for irrigating ditches, the question as to * what petitioner may be able to accomplish in the way of obtaining water which can be utilized through his proposed ditch, cannot be inquired into." MCCARTEY, County Superintendent of Schools, v. SCHOOL DIST. NO. 9 IN LA PLATA COUNTY. (No. 10856.) (Supreme Court of Colorado. April 7, 1924. Rehearing Denied May 5, 1924.) 1. Schools and school districts 144 (4) — Art, music, and domestic science teachers held "special teachers" improperly certified for minimum salary. another of music, mechanical drawing, domestic Under C. L. §§ 8446-8453, requiring school boards to certify to county superintendent "number of teachers employed, length of school year," etc., and prescribing a minimum salary schedule applicable to all but special subject and part time teachers, and section 8335, defining special teachers as music, drawing, household economics, etc., a teacher of art, science, and one who taught 2 hours and 40 minutes per day, were "special" and "part time" teachers, and improperly certified as enIn Schneider v. Schneider, 36 Colo. 518, 86 titled to participate in minimum salary fund. Pac. 347, this court, in considering the ques-2. Schools and school districts 144(4)-Distion of necessity for the construction of a trict entitled to participate in teachers' miniditch for which it was sought to condemn a mum salary fund on basis of year exceeding right of way, said: nine months. "As to whether or not there is sufficient wa A district is entitled to participate in the ter for plaintiff's use, or as to whether or not teachers' minimum salary fund, provided in the plan is a practicable or feasible one, is a C. L. §§ 8446-8453, on the basis of a school matter which cannot be determined in a pro-year exceeding 9 months, there being no statute ceeding of this character-[citing Gibson v. Cann, supra]. "The various questions which may arise as to the right to appropriate the water cannot be here determined. Further on, the court said: "Appellant contends that a nonsuit should have been granted because plaintiff failed to prove that she was the owner of a water right or had made an appropriation of water. We are not inclined to concede this contention. An action under the Eminent Domain Act cannot be converted into an action to quiet title. So far as it is concerned it must remain an action in eminent domain, and no issue can be injected into the case which will change its character. D. P. & I. Co. v. D. & R. G. R. R. Co., 30 Colo. 215." [4] The evidence presented by defendant before the commissioners for the purpose of when the act was passed fixing the length of a standard school year; section 8289 having permitted districts to use surplus general funds for a period of 10 months. En Banc. Error to District Court, La Plata County; W. N. Searcy, Judge. Mandamus, by School District No. 9 in the County of La Plata, State of Colorado, against Nell B. McCartey, County Superintendent of Schools, and another. Judgment for petitioner, and named defendant brings error and asks for writ of supersedeas. Reversed, and remanded. Frank J. Mannix, of Denver, for plaintiff in error McCartey. Wayne C. Williams, Atty. Gen., and Joseph P. O'Connell, Asst. Atty. Gen., amici curiæ. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes B. W. Ritter and A. M. Emigh, both of paid in twelve monthly installments. Durango, for defendant in error. school." The board of directors of any school district may, at its option, pay in advance one and one-half BURKE, J. This was an action in man- (12) months' salary, at the close of any school damus by defendant in error against plain-year, to enable the teacher to attend summer tiffs in error to obtain an apportionment of the school funds of the county differing from that already made and being made under the act of 1921 as construed by the state superintendent of public instruction. Judgment was for the school district. The county superintendent brings error and asks that the writ be made a supersedeas. The question before us is the proper interpretation of the provisions of chapter 214, | L. 1921; sections 8446 to 8453, inclusive, C. L. 1921. So far as we are advised, this act has not heretofore been before the courts, and little, if any, light is thrown upon it by any authority to which our attention has been directed. Section 8446, C. L. 1921, requires the board of directors of each school district to certify to the county superintendent the "number of teachers employed, or to be employed," during the ensuing year, the length of time the "school will be kept open" during the year, and the amount of money necessary to pay "each of such teachers" a salary of $75 per month during the time the school is to be kept open. Section 8451, Id., reads as follows: "The minimum salary that shall be paid to any school teacher in the public schools, except substitute teachers, part time teachers, and teachers of special subjects, shall be seventyfive dollars ($75.00) per month. The minimum salary that shall be paid to any teacher in the public schools, except substitute teachers, part time teachers, and teachers of special subjects, whose educational preparation consists of high school graduation, or its equivalent, as determined by the state board of examiners, and two years of specific training for teaching in a normal school, a teachers' college, or the educational department of a college maintaining a technical course in study for teachers which shall be approved for that purpose by the state board of examiners, shall be one thousand dollars ($1,000.00) per annum, payable in twelve monthly installments; and the minimum salary that shall be paid to any teacher in the public schools, except substitute teachers, part time teachers, and teachers of special subjects, whose educational preparation consists of high school graduation, or its equivalent, as determined by the state board of examiners, and four years of such specific training, shall be twelve hundred dollars ($1,200.00) per annum, payable in twelve monthly installments. The aforenamed minimum of one thousand dollars ($1,000.00) per year for teachers who have had two years of specific training, and twelve hundred dollars ($1,200.00) per year for teachers who have had four years of specific training, shall apply only to teachers in schools whose period of instruction is at least nine school months per year; and if the school year of any school whose teacher has had such specific training is less than nine months, the aforenamed minimum salaries shall be applied pro rata for the time the school is in session, and Section 8452 provides that if a five-mill levy shall be insufficient to provide funds necessary to pay the minimum salary of $75 per month "to every public school teacher within that county, as aforesaid," then upon a proper certification of the facts to the state superintendent, and that official's investigation and ascertainment of the necessity, the deficiency shall be made up out of the public school income fund of the state. The board of directors of district No. 9, which is the only district of the first class in La Plata county, listed 43 teachers, and certified that 41 of them came under the minimum salary provisions, and that the school would be in operation 91⁄2 months. Under the county superintendent's duty to certify to the county commissioners, she made such certificate at the time required by law; but, being doubtful of the rights claimed by number nine, she qualified her certificate "subject to the opinion of the state superintendent or a court decision." Having investigated the facts, she learned that one of the teachers, included in the 41, was a teacher of art, another of music, another of mechanical drawing, another of domestic science, and that another taught but 2 hours and 40 minutes per day. These facts she communicated to the state superintendent, and upon the ruling of the latter held that these were teachers of special subjects and part time teachers and should not have been certified; also, that the maximum period for which district No. 9 could claim participation in the fund for minimum salaries was 9 months. She thereupon advised district No. 9 of the ruling of the state superintendent, called for a new certificate in conformity therewith, and she and the county treasurer proceeded with the administration of the fund accordingly. Such administration district No. 9 sought to have modified by this action to conform to its claims under its certificate. The two questions (and in our opinion the only questions) requiring consideration here jects and part time teachers entitled to cerare: (1) Are said teachers of special subtification? (2) Was a school district, under the act of 1921, entitled to participation in the minimum salary fund on the basis of a school year exceeding nine months? [1] 1. It is perfectly clear from an examination of this entire act that its chief purpose is to raise the educational standard in the weaker districts of the state and place the burden incident thereto upon the stronger districts and, in case of necessity, upon the state itself. The very heart of the act is said section 8451, and by its provisions (225 P.) the other sections must be interpreted. The requirement of said section 8446 for a certification of "the number of teachers employed, or to be employed," in said school district, relates only to those entitled to the minimum salary provided in section 8451. The language of section 8452 which provides that, if the levy be insufficient to pay the salary of $75 per month "to every public school teacher within that county, as afore said," relates again to those entitled to minimum salaries as provided in the preceding section. Neither said section 8451, nor any other portion of the act, defines "part time teachers, and teachers of special subjects." Such a definition would be extremely difficult for the courts if we were without any guide, but that enigma is solved for us by a statute in existence at the time of the passage of the act of 1921, with knowledge whereof, and in the light of which it must be presumed the General Assembly acted. Section 8335, C. L. 1921 (L. 1917, p. 116, § 1), confers certain powers upon boards in districts of the first class, among which are: "They may provide instruction in and employ special teachers for such special subjects as music, drawing, manual training, household economics, including the care of children, vocational and industrial subjects, and subjects for the training of such special teachers." Such subjects we must conclude the Legislature had in mind and intended to exclude by the words "teachers of special subjects," as used in said section 8451. Four of the teachers included in the certificate of dis trict No. 9 clearly came within that designa tion and should have been omitted. That the teacher who taught 2 hours and 40 minutes per day was "a part time teacher" requires no argument. As to each of these the ruling of the state superintendent and plaintiffs in error was correct. [2] 2. At the time of the passage of the act of 1921, there was no statute in the state which fixed the length of a standard school year. The argument here made for a year of 9 months is based upon the custom followed in a great majority of the school districts of the state, and a provision of the laws of 1923 which it is contended established a new maximum. We do not think the argument sound. The language last referred to is found in section 2, c. 166, p. 566, L. 1923, and reads: "No greater amount shall be apportioned than is necessary to pay the above named salaries for a term of nine and one-half months." plated is indicated by the provisions of section 8289, C. L. 1921, in force at the time of the passage of the act here in question, and by which a district was permitted to use its general school fund for certain purposes if any portion thereof remained "after the payment of all expenses necessary to the support of a public school for a period of ten months." Moreover, the act of 1921 required the school board to certify the length of the school year, without placing any limitation thereon, and further required the board to certify the amount of money necessary to pay the minimum salary "during the said portion of the year during which said schools are to be kept open," from all which it seems clear to us that no maximum was es- · tablished until the passage of the act of 1923. Hence the certificate of district No. 9 as to the length of its school year was correct, and the ruling of the state superintendent of public instruction and the action of these plaintiffs in error thereunder, so far as it related to the length of the school year in district No. 9, was erroneous. The judgment of the district court is ac cordingly reversed, and the cause remanded for further proceedings in harmony herewith. Where bank broke contract to credit plaintiff's checking account with $5,000, for use This is an amendment of section 4 of the during extended vacation in California, if plainact of 1921 (section 8449, C. L. 1921), and in- tiff and wife received some benefit from their dicates, if it indicates anything, a limita- expenditure of railroad fare, etc., because they stayed several weeks, despite bank's breach, tion upon a term which theretofore might held, that it was for jury to determine what have been for a longer period. That school proportion of that expenditure should be alyears of more than 9 months were contem-lowed plaintiff as damages for the breach. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |