'Very respectable authority may be found holding views contrary to those above expressed, notably Underwood v. Tew, 7 Wash, 297, 34 Pac. 1100; Hogan v. Kyle, 7 Wash. 595, 35 Pac. 399, 38 Am. St. Rep. 910. Stein v. Waddell, 37 Wash. 634, 80 Pac. 184, is also cited by appellant, but the conditions there were different. Stein had brought a suit to declare a forfeiture of a contract of sale on account of nonpayment of installments of the purchase price, and did not allege a tender of a conveyance before suit. Forfeiture being a harsh remedy and not favored by the law, the court held that he should have made such tender before bringing his suit. It was incidentally remarked that the usual rule in such contracts was that the covenant to pay and the covenant to convey were dependent covenants, unless the terms of the contract clearly indicated the contrary, and that they attached little importance to the words "shall first pay" used in the covenant of the vendee. What they would have held in a case where the vendee had given a negotiable promissory note for the purchase price and gone into possession of the property, as indicating the intention of the parties, does not appear, be

cause it was not in that case.

The object of language is not to conceal ideas, but to express, and where an instrument provides that one party shall first pay in order to be entitled to a deed it is logical to conclude, in the absence of other qualifying language, that it is intended that the payment must precede the giving of the deed. The word "first" does not mean "coincident with," or "at the same moment," either in law or logic. As the case stands here, the document pleaded by defendant says to defendant, in effect: "You must first pay the price evidenced by the note, and when that is paid plaintiff must make a deed." But defendant would have us construe this language so that the first thing to be done or tendered is the deed. It would seem that before defendant can be allowed to urge this defense to an action on a promissory note he should be required to plead that he has paid or offered to pay, or is ready and willing to perform his part of a plain agreement, or show some valid reason why he should not do So. Merely stating the conclusion of law, that plaintiff is "not able" to make the deed means nothing-no legal reason why he is not able appearing.

2. Negligence 23(1)-Child playing about abandoned telephone poles left on vacant property not a trespasser; "abandon."

ed "abandoned" poles upon vacant property not Where defendant telephone company placits own and used by children as a playground, plaintiff, six year old child playing about the poles, was not trespasser upon defendant's property, "abandon" meaning to relinquish or give up with intent of never again resuming or claiming one's right or interest.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Abandon; Abandonment.]

3. Negligence 136(19)-Negligence in leaving telephone poles accessible to children held for jury.

Where a six year old child was injured by the rolling over of a telephone pole about which he was playing and which was abandoned by defendant company on vacant property not its own and used by children as a playground the question of defendant's negligence held properly left to the jury.

In paragraph V it is averred:

"That shortly after placing said telephone pole as aforesaid, the above-named George W. Burroughs, a minor of the age of approximately şix years, sat on said telephone pole, when the same started in motion, rolling over and on said George W. Burroughs, bringing about the injuries hereinafter designated."

Paragraph VI reads:

* That said defendant carelessly and negligently placed said pole on a hill or declivity, where children were playing and were apt to come in contact with the same; that said defendant carelessly and negligently failed to block or brace said pole so it would not roll."

In paragraph VII it is averred:

"That as a direct and proximate result of said negligent acts of defendant * * said pole started in motion and rolled over and on said George W. Burroughs, breaking the bones of his right hand and bruising the tendons and ligaments thereof.

favor of the plaintiff, defendant appeals to this court.

Omar C. Spencer, of Portland (Carey & Kerr, of Portland, on the brief), for appellant.

W. E. Farrell, of Portland (Davis & Farrell, of Portland, on the brief), for respondent.

BROWN, J. (after stating the facts as above). Nothing renders this case difficult, unless it be a misunderstanding of the real facts.

That George W. Burroughs, a child six years of age, sustained an injury, resulting in a fracture of the bones of his right hand, is not disputed. It is also an established fact that the injury was produced by reason of a telephone pole rolling upon the child's hand. The plaintiff charged

gently placed said pole on a hill or. declivity, "That said defendant carelessly and negliwhere children were playing and were apt to come in contact with the same and

Defendant, answering, admitted:

"That some of its employees left an old telephone pole on vacant property in the vicinity of Fourth and Porter Streets in Portland, Oregon, but, except as so admitted, defendant denies each and every allegation of paragraph IV of the complaint."

Defendant denied the averments of paragraphs V and VI. It admitted that the plaintiff "in some manner fractured one of the bones of his right hand," but denied that the injury was caused by its negligence.

For a further and separate answer and defense, the defendant alleged:

"That the pole * was placed by the defendant in a reasonably safe position on vacant property; that said pole was old and of no further use to defendant and was left on said property for the purpose of being abandoned, and being used by other persons for fuel if they so desired. That whatever injury was sustained by said minor was on account of his own fault and negligence and the fault and negligence of the said guardian ad litem, who at that time had the care and custody of said minor, in not observing the usual precautions which should be used on or around a pole or other structure under similar circumstances."

The reply admitted that the plaintiff fractured the bones of his right hand and that the defendant placed the pole on vacant property. Trial was had, and at the conclusion of plaintiff's evidence the defendant moved for a nonsuit on the ground that no negligence had been shown and no cause of action had been established. The court, over defendant's objection, submitted the question of defendant's negligence to the jury.

brace said pole so it would not roll."

The defendant says, in its answerThat it placed the pole "on vacant property; that said pole was old and of no further use to defendant and was left on said property for the purpose of being abandoned, and being used by other persons for fuel if they so desired."

The defendant denied failure to block the poles. However, within an hour after the pole that rolled upon the plaintiff was so placed and abandoned by defendant, a neighbor, hearing the screams of children, stepped out of her house and saw two children who had been trapped by defendant's abandoned telephone poles.

We will now direct our attention to the error assigned by the defendant by reason of the court's overruling its motion for a judgment of nonsuit. Following the ruling of the court the defendant offered evidence upon its own behalf, and this motion will be considered in the light of the whole record.

There is some competent testimony in the record in support of each of the material allegations of the complaint. There is no contention that the plaintiff's complaint does not state a good cause of action. While we I do not mean to be understood to say that the weight of the evidence is with the plaintiffthat being a question for the jury-yet there is some competent proof tending to establish the material allegations of the plaintiff's pleadings. The record discloses that on the day preceding the accident the defendant's employees were removing telephone poles in the vicinity of Fourth and Porter Streets, Portland, Oregon, and that two old telephone poles were rolled by them to a vacant lot sit-' uate on Fourth and Porter Streets and there

There is testimony in the record tending to show that the poles were not blocked to keep them from rolling on the sloping ground where they had been placed, and that there were children playing in that immediate vicinity at the time the poles were placed upon the vacant property.

Mrs. Minnie Jouchemich, a witness for the defendant, who resides on Porter Street, testified that she had asked the Telephone Company for a pole, and that the employees had left two, telling her that she might have them for fuel; that some three days after they were left there her husband took possession of them, cut them into pieces and put them in the basement. She testified that the children "played around there all the time," and that the poles had been left by the defendant probably an hour before the plaintiff was injured; that she recognized the danger to the children and told the plaintiff, who was playing about the poles with his baby sister, to take her home; that soon there after one of the neighbors came in and said the boy had hurt his hand. She said, didn't see it at all."

"I

Mrs. Vera Hubert, a neighbor residing on the corner of Fourth and Porter Streets, testified, among other things, that there is but little traffic in that vicinity, and that Porter Street extends west from Fourth; that she saw the telephone poles there between the fence and a standing telephone pole, on a slope west of Fourth Street "in that space;" that within an hour after the poles were left by defendant she heard the screams of children. She testified:

"I heard the children crying and I went out the door to see what was the matter. I noticed the children lying on the ground, so I ran down to the place where the poles were. The little girl was with her right foot, if I remember right, fastened under the large pole, which was against the telephone pole standing. I took the little girl out first, because the step on the pole was laying on her foot, caught her foot there. Then I got down-the pole was SO heavy I had to get on my knees to push the pole from the little boy's hand.

*

*

It

R. L. Duncan, foreman, testified that the poles were given to Mrs. Minnie Jouchemich, "I imagine for fuel," and that he did not see how they were blocked.

There is evidence establishing, if believed, acts of negligence upon the part of defendant, and the record further shows that the defendant knew, or should have known, that the children of the neighborhood were in the habit of playing at the place where the poles were abandoned.

[1] Dangerous agencies easily accessible to children may not be placed upon vacant property. 20 R. C. L., § 30; Nelson v. McLellan, 31 Wash. 208, 71 Pac. 747, 60 L. R. A. 793, 96 Am. St. Rep. 902.

The language of Cooley, C. J., in the case of Powers v. Harlow, 53 Mich. 507, 19 N. W. 257, 51 Am. Rep. 154, is especially applicable to the facts disclosed by the record in this case and has been cited many times with approval. Chief Justice Cooley wrote:

"Children, wherever they go, must be expected to act upon childish instincts and impulsduty of care and caution towards them must es; and others who are chargeable with a calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken." We should know that

"The All-Wise Providence has implanted in the child a curiosity which can be satisfied only

*

by feeling and handling new and strange objects. This is a trait which frequently tries the patience of adults, but it is an instinct or dained by nature, and cannot be changed by man. In fixing a standard of human conduct involving the safety of children, this trait canerations this court has laid down the rule that— not be ignored. From these considConservation of child life and safety, as to artificial peril, is one of such importance that ordinary care may well hold everyone responsible for creating and maintaining a condition involving any such with reasonable ground for apprehending that children of tender years may Corcoran, 156 Wis. 580, 146 N. W. 815; Kelly probably be allured thereinto.' Webster v.

back."

She said the larger and shorter of the two poles "rolled on the little boy," and that the slope of the ground was great enough so that the poles rolled easily.

140 N. W. 60, 44 L. R. A. (N. S.) 487." Kressine v. Janesville Traction Co., 175 Wis. 192, 184 N. W. 777.

[2] The defendant filed an able brief, prepared on the theory "that the defendant company, in leaving the poles, was in the