to recover, even if the servant possessed the utmost degree of efficiency and skill in the performance of his duty. The sole question, therefore, was, What was the conduct of the servant at the time? and this was to be unembarrassed by any consideration of his general qualifications." In the carlier case of Towle v. Pacific Improvement Co., 98 Cal. 342, [33 Pac. 207], the court had declared the same rule, although it was there applied to a somewhat different state of facts. Quoting from 2 Thompson on Negligence, page 804, the court said, in the Towle case, that "the principle is that the question whether a person was at a given time in the exercise of due care is to be resolved upon evidence of what took place at the time, and not upon evidence of the general character he may sustain." (See, also, Spear v. United Railroads, 16 Cal. App. 637, [117 Pac. 956]; Carr v. Stern, 17 Cal. App. 397, [120 Pac. 35]; Minot v. Snavely, 172 Fed. 212, [19 Ann. Cas. 996, 97 C. C. A. 30].) Under instruction 13, the jury was authorized to hold the defendant liable because it had employed an incompetent motorman, even though the evidence of the facts surrounding the accident may not have been sufficient, in and of itself, to show that the motorman had failed to exercise due care. The vice of the instruction is not remedied by the concluding words that "defendant would be liable for any injury proximately caused by its failure in these respects." The argument is that the mere employment of an incompetent motorman could. not proximately cause the injury, if the motorman was not negligent on the particular occasion. But the answer to this suggestion is that the natural effect of testimony of incompetency is to lead the jury to infer that the person whose conduct is in question failed to act properly at the time and in the very matter under investigation. (Wigmore on Evidence, sec. 65.) The error is emphasized by the court's refusal to give the instruction requested by the appellant. The requested charge was designed to limit the jury, on the question of the defendant's negligence, to an examination of the conduct of the motorman at the very time in controversy. As we have seen, the defendant was entitled to have the inquiry so limited.

If there had been no evidence bearing upon the question of the motorman's competency, these errors might, perhaps, be regarded as of little moment. But the bill of exceptions

contains an explicit statement that the motorman, when testifying as a witness, was dull, slow, and hesitating; that he showed a lack of knowledge of the appliances used on the car; and that "the jury might readily have drawn the conclusion from his manner of testifying, and his appearance on the witness-stand, that he was incompetent to serve as a motorman at the time of the collision." As we have already said, the evidence left the true cause of the accident in great doubt. We cannot say that, if this instruction had not been given, the jury ought, nevertheless, to have found in favor of the plaintiffs. We cannot even, after a careful review of the evidence, say that the jury, under proper instructions, would probably have reached a conclusion in favor of the plaintiffs. Under these circumstances, we would not be justified, even under the liberal provisions of section 42 of article VI of the constitution, in disregarding the error, and denying a new trial.

As a guide to the further proceedings which must be had, we may refer briefly to some criticisms directed by the appellant against the remaining instructions of the court. We are not, in this, to be understood to hold that the objections which we find to be good would alone justify a reversal. Instruction 14 states that it is the duty of drivers of street-cars to have their power under control, and so use the control "as to avoid injury whenever possible." The words "whenever possible," put too stringent an obligation upon the operator of the car. His duty is to exercise ordinary care, and the court so instructed the jury, in other parts of its charge. It would be well, upon another trial, to obviate possible confusion by modifying instruction 14.

We think there was no substantial error in instructions 12, 15 and 17, regarding the right of the driver of the automobile to drive upon the part of the street occupied by the street-car track. It is true, generally, and more especially where, as here, the portion of the street beyond the tracks is not passable, that the driver of any vehicle has the right (always subject to the duty to exercise due care), to drive on the part of the street occupied by the street-car rails. The appellant's complaint seems to be based on the proposition that it was negligent for the plaintiff to drive on to the left-hand track. But this subject was covered by other instructions, and was not involved in the instructions now under consideration.

A point is made of an ordinance of the city of San Diego, providing that every person driving a vehicle on any street shall "on all occasions when it is practicable so do to, travel on the right side of such street, and as near the right-hand curb thereof as possible." The ordinance was not intended to prohibit the use of the left-hand side of the street under all circumstances. The only part of the street that was passable was that occupied by the tracks. There was no way for the plaintiff's to pass the east-bound car except by going to the left of it. In a certain sense it was "practicable” for them to remain behind that car, stopping whenever it stopped, and being delayed by it as long as it remained upon the portion of Washington Street that was undergoing repairs. But we do not think that the ordinance should be given so strict an interpretation. Whether it was reasonable, under the circumstances, to hold the driver of an automobile to this inconvenient mode of travel, was, we think, a question for the jury. They may well have concluded that it was not "practicable" for Langford to keep on the right of the road where, by so doing, he would be unduly blocked in his progress.

Complaint is made of the action of the court in instructing the jury upon the "last clear chance" doctrine. It is exceedingly doubtful whether there was any evidence to which these instructions were applicable. We do not, however, express any definite view on this point, as the evidence may be different upon another trial. We do not agree with the appellant's contention that facts showing the applicability of the "last clear chance" rule must be alleged in the complaint. The appellant relies upon Esrey v. Southern Pacific Co., 88 Cal. 399, 406, [26 Pac. 211]. The decision did not turn upon the question of pleading, and what is said in the opinion on this point is little more than a passing intimation. On the second appeal in the same case (Esrey v. Southern Pacific Co., 103 Cal. 541, 546, [37 Pac. 500]), the court seemed to view with doubt the suggestion, made on the first appeal, that the complaint should have charged that the defendant acted willfully and wantonly, but was compelled to accept it as binding under the "law of the case" rule. Well-considered cases in other jurisdictions hold that the plaintiff may rely upon the "last clear chance" doctrine where he has made proper allegation that his injury was caused by the defendant's want of reasonable care, and the defendant has denied this allega

tion. (Nathan v. Charlotte etc. Ry. Co., 118 N. C. 1066, [24 S. E. 511]; Crowley v. Burlington etc. Ry. Co., 65 Iowa, 659. [20 N. W. 467, 22 N. W. 918].) As was said in the North Carolina case, "In contemplation of law, the injury is not attributed to the wrongful act unless it is shown to be the. immediate and proximate cause. So that the allegation by the plaintiff that the injury was due to the defendant's carelessness, and the denial of that, coupled with the averment by defendant that the contributory negligence of the plaintiff was the cause, necessarily involves the question whether the defendant negligently omitted to avail itself of the last clear chance to avoid the accident by the performance of a legal duty."

Instruction No. 19, given at the request of the plaintiffs, contained the statement that "street-cars with proper appliances are easily stopped." This declaration should have. been omitted. In the first place, it involves a charge upon a matter of fact. Next, it was misleading, in that it suggested to the jury that the sufficiency of the appliances on defendant's cars was involved, whereas no such question was presented by the pleadings or the evidence. Still further, the words "easily stopped" are too uncertain to furnish a standard of any value. One person might think that a car was "easily stopped" if it could be stopped within forty feet, while another might think it could not be easily stopped unless brought to a standstill after running ten or fifteen feet.

Some other instructions are criticised, but we think that on a reading of the charge as a whole, the objectionable matter pointed out by the appellant is not such as to have caused any material misunderstanding on the part of the jury.

The judgment and the order denying a new trial are reversed.

Shaw, J., and Lawlor, J., concurred.

Hearing in Bank denied.

[L. A. No. 3778. Department One.—April 4, 1917.]

G. L. BRYANT, Respondent, v. PACIFIC ELECTRIC RAILWAY COMPANY, Appellant.

NEGLIGENCE-DRIVER OF AUTOMOBILE-INJURY TO PASSENGER-ERRONEOUS INSTRUCTION.-In an action for personal injuries caused by one of the defendant's electric cars colliding with an automobile in which plaintiff was riding and which was driven by his twenty-nine year old son, it was error to instruct the jury, as a matter of law, that the negligence of the driver of the automobile, if any, was imputable to the plaintiff, where there was evidence that the plaintiff had no control or direction mechanically in the driving or management of the machine at the time of the accident, but the same was under the full control and direction of the son, who was an experienced driver of automobiles, notwithstanding the existence of the relationship between the parties and the fact that both were employed by or interested in the same corporation.

10.—IMPUTABLE NEGLIGENCE-RULE.-In order that the negligence of one person may be properly imputed to another, they must stand in such relation of privity that the maxim qui facit per alium facit per se directly applies, since no other rule is consistent with section 1714 of the Civil Code, wherein it is declared that every one is responsible for an injury occasioned to another by his want of ordinary care, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.

APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. J. P. Wood, Judge.

The facts are stated in the opinion of the court.

J. W. McKinley, Frank Karr, R. C. Gortner, E. E. Morris, and A. W. Ashburn, Jr., for Appellant.

E. B. Drake, for Respondent.

LAWLOR, J.-G. L. Bryant brought this action to recover damages for personal injuries alleged to have been caused by one of the defendant's electric cars colliding with an automobile in which he was riding. At the time of the accident the plaintiff's son was driving the machine. A trial was held before a jury which resulted in a verdict for the defendant, but, on motion by the plaintiff, a new trial was granted

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