White v. Ross, 47 Mich. 172, [10 N. W. 188]; Brown v. Brown, 124 N. C. 19, [70 Am. St. Rep. 574, 32 S. E. 320]; Rice v. Rice, 104 Mich. 371, [62 N. W. 836]; Pollock v. Pollock, 9 Misc. Rep. 82, [20 N. Y. Supp. 37]; Fronk v. Fronk, 159 Mo. App. 543, [141 S. W. 697]; Park v. Park, 40 Colo. 354, [91 Pac. 830].

The jury after it retired to deliberate upon its verdict came into court seeking further light upon the law, as shown by the following questions asked of the judge:

"Question by a juror: The question is, Judge, in the event we should award damages, will that be protecting the child; should we award damages would there be compensation, protection for the child; would the child be sure of protection? That may be entirely foreign to what we are expected to do, but the argument came up."

"Another juror: That may be foreign to what we are asked to come here for, but we seem to want to know about it." "Another juror: There has been considerable argument; some of the jurors argue one way, some another, and the question came up, provided any damages were awarded to the plaintiff, would the boy be protected by the court in any respect. The supposition was that probably the plaintiff might marry and the boy would lose any protection which we might accord him."

This transcript from the record affords the only understandable reason for the verdict given. It is but another exemplification of the power which some juries assume of adjusting, without regard to the evidence or issues, the finances of the litigants in accordance with their views. It is another case like that of Driscoll v. Market St. Cable Ry. Co., 97 Cal. 553, [33 Am. St. Rep. 203, 32 Pac. 591], where, as this court said, "a jury catches at a mere semblance or pretense of evidence for the purpose of simply equalizing financial conditions by taking money from one party and giving it to the other without legal cause." But in this case, no more than in that, has this great and, to the jurors, most inexpensive generosity the sanction of the law.

The judgment and order appealed from are therefore reversed.

Melvin, J., and Lorigan, J., concurred.

[L. A. No. 3805. Department One.-March 31, 1917.]

ADA COOPER LANGFORD et al., Respondents, v. SAN DIEGO ELECTRIC RAILWAY COMPANY (a Corporation), Appellant.

NEGLIGENCE - COLLISION BETWEEN AUTOMOBILE AND STREET-CARRESPONSIBILITY FOR ACCIDENT INSTRUCTIONS RELATIVE RIGHTS AND OBLIGATIONS OF PARTIES.-In an action to recover damages for injuries received by a wife in a collision between an automobile in which she and her husband were riding and a street-car belonging to an electric railway company, where on the whole record there is room for serious doubt whether responsibility for the accident in reality rested upon the husband, or upon the defendant, any substantial error in the instructions defining the relative rights and obligations of the driver of the automobile and the person in charge of the street-car, must be regarded as prejudicial. ID.-COMPETENCY OF MOTORMAN-EXERCISE OF DUE CARE-ERRONEOUS INSTRUCTIONS. An instruction that it was the duty of the company to employ competent and careful persons and of the motorman to exercise proper care to avoid accidents, and that the company would be liable for any injuries proximately caused by its failure in such respects; and the refusal to instruct that the plaintiffs did not complain that the motorman was incompetent, and that the only question for the jury to consider with reference to him was his due care, are prejudicially erroneous, since the question of the competency of the motorman or his reputation for care were not proper subjects of inquiry in such an action.

ID-STREET RAILROADS-DUTIES OF OPERATORS.-An instruction that it is the duty of street-car operators to have their power under control, and so use the control as to avoid injury whenever possible, is objectionable in the use of the words, "whenever possible," as it is their duty to exercise ordinary care.

ID. DRIVING ON STREET-CAR TRACK.-An automobile or other vehicle driver has the right to drive on a street-car track, where the other part of the street is impassable.

ID. MUNICIPAL ORDINANCE-STREET TRAVELING.-A municipal ordinance requiring every driver of a vehicle to travel on the right side of the street as near the right-hand curb as possible, does not prohibit the use of the left-hand side of the street under all circumstances. ID. "LAST CLEAR CHANCE" DOCTRINE-PLEADING.-In an action for injuries, the plaintiff may rely upon the "last clear chance" doctrine, without expressly alleging the doctrine in his complaint, where he has alleged that the injury was caused by the defendant's want of reasonable care, and the allegation is denied.

ID.-EASY STOPPAGE OF STREET-CARS-ERRONEOUS INSTRUCTION.-An instruction that street-cars with proper appliances are easily stopped is misleading, in the use of the words "easily stopped," and objectionable as involving a charge on a matter of fact.

APPEAL from a judgment of the Superior Court of San Diego County, and from an order denying a new trial. W. A. Sloane, Judge.

The facts are stated in the opinion of the court.

Read G. Dillworth, and E. Swift Torrance, for Appellant.

Adam Thompson, for Respondents.

SLOSS, J.-The plaintiffs are husband and wife. They brought this action to recover damages for injuries received by the wife in a collision between an automobile in which the plaintiffs were riding and a street-car belonging to the defendant company. There was a trial by jury, resulting in a verdict and judgment for five thousand dollars in favor of the plaintiffs. The defendant appeals from the judgment, and from an order denying its motion for a new trial.

The points raised by the appellant turn principally upon the court's instructions to the jury. To understand these questions, their discussion should be preceded by a brief statement of the facts.

The defendant operates a double track line of electric street railway on Washington Street and other streets in the city of San Diego. Washington Street runs east and west. Among the streets intersecting it are Falcon, Goldfinch and Hawk Streets. Falcon Street is the most easterly of these, the next street to the west being Goldfinch Street, and Hawk Street the one next beyond. The accident resulting in Mrs. Langford's injury occurred on the evening of March 13, 1913, at the intersection of Washington and Goldfinch Streets. The pavement of Washington Street was being repaired, and the only part of the street that was passable was that occupied by the tracks of the Railway Company, including a space of two feet in width on either side, beyond the outer rails. The automobile was driven by Norton Langford, the husband. He was coming easterly on Washington Street. As Langford crossed Hawk Street, an east-bound car of the

defendant was running on the southerly track, a short distance ahead of him. He followed on the southerly track, until the car came to a stop at or near the intersection of Goldfinch Street. There is a sharp conflict over what took place then. Langford's testimony was, in effect, that the street-car stopped some distance west of Goldfinch Street to take on passengers; that in order to avoid the delays which would be imposed upon him by the frequent stops of the street-car, if he remained behind it, he turned out to the left or north track, with the intention of passing around the eastbound car, and getting in front of it. The street-car started again as he got abreast of it, and as Langford drew up, the motorman increased the speed of the street-car. About this time Langford saw a west-bound car ahead of him on the northerly track, at a distance of one or two blocks. Concluding that he would not be able to get ahead of the eastbound car, and cross to the southerly track in front of it before the approaching west-bound car would be upon him, Langford stopped his automobile with the intention of falling in to the right behind the east-bound car. This brought his automobile to a standstill upon the north track, about the middle of the intersection of Goldfinch and. Washington Streets. Before he was able to get his machine out of that position, the west-bound street-car ran into him.

The complaint charged that the collision was caused by the careless, negligent, and unskillful running of the car by the defendant's servants. The answer denied negligence, and alleged that the collision was caused by the negligence of Langford in turning on to the northerly track at a time when the west-bound car was so close that a collision was inevitable. The evidence offered by the defendant tended to support these claims. There was ample and substantial testimony from which the jury might well have concluded that the west-bound car was very near the intersection of Goldfinch Street when Langford drove his automobile on to the northerly track, and that the motorman driving said car was not, and could not have been, aware of Langford's presence on the north track in time to enable him to stop the street-car. The appellant does not claim, and we do not suggest, that the evidence was not sufficient to support the verdict of the jury. Upon the whole record, however, there is room for serious doubt whether responsibility for the accident in reality rested upon

Langford or upon the defendant. Under these circumstances any substantial error, if such there was, in the instructions defining the relative rights and obligations of the driver of the automobile and the person in charge of the street-car, must be regarded as prejudicial.

The

Among other instructions, the court gave the following: "You are further instructed that it is and was the duty of the defendant corporation to employ competent and careful persons to manage its street-cars, and that it was and is the duty of the motorman in charge of the street-cars of the defendant to exercise proper care, and keep a proper lookout, in order to avoid, if possible, all accidents and injury, and the defendant would be liable for any injury proximately caused by its failure in these respects." The court refused to comply with the defendant's request to instruct the jury: "Plaintiffs do not here complain that the motorman on defendant's west-bound street-car-was incompetent or inexperienced, and the only question for you to consider with reference to him is whether on the occasion of the accident he acted with the care and prudence which a reasonably prudent man under the circumstances would have exercised." appellant assigns as error the giving of the one and the refusal to give the other instruction. These assignments are well taken. The question of the compétency or incompetency of the motorman was not an issue, nor could it have been made an issue, in the case. The great weight of authority supports the rule that in actions of this kind the competency of the person claimed to have acted negligently, or his reputation for care, is not a subject of inquiry. The decisions in this state are definitely in accord with this view. In Cunningham v. Los Angeles Ry. Co., 115 Cal. 561, 564, [47 Pac. 452], the court said, in dealing with this question: "Defendant was responsible to plaintiff for a want of ordinary care only, and whether it was in the exercise of such care was to be determined from a consideration of what actually occurred at the time of the alleged negligent act, regardless of any fact affecting the general character of the servant for skill or proficiency in the discharge of his duty. The question was, Did the servant exercise ordinary care to avoid the injury? If he did, the plaintiff could not recover, no matter how wanting the servant may have been in general competency; while if he did not exercise such care, plaintiff was entitled