questions raised by the defendant and appellant are immaterial.

The appellant claims that the complaint does not state a cause of action because it does not allege the relation of passenger and carrier; that the court erred in denying defendant's motion for a nonsuit; that plaintiff had no right by virtue of her tenancy to go to or from the basement in the elevator; that plaintiff's failure to show she was a "passenger" is fatal to her cause of action; that plaintiff was a trespasser and only entitled not to be wantonly injured; that plaintiff failed to show permission to use the elevator; that the instructions that plaintiff was a "passenger" and entitled to the highest degree of care were erroneous; that the use of the basement by consent or acquiescence made plaintiff a licensee only; that if plaintiff was not a trespasser she was a mere licensee and defendant was required to use only ordinary care toward her; that the defendant owed only ordinary care for the further reason that it was a carrier without reward; that the issue as to plaintiff's right to be in the elevator was withdrawn from the jury by the instructions; that whether plaintiff was a passenger was a question of fact for a jury and was made an issue by the pleadings; that the court erroneously refused to instruct that unless plaintiff's right to be in the basement was shown she could not recover; that the jury were erroneously instructed that plaintiff could recover even if guilty of contributory negligence; that the attempted instructions as to last clear chance failed to embrace all the elements and were erroneous; that the last clear chance rule was not applicable to complaint or evidence; that the instruction as to measure of damages was erroneous; that the court erred in admitting evidence of statements by plaintiff's predecessor and of conversations between plaintiff's predecessor and the janitor of defendant; that the court erred in permitting plaintiff to testify as to the present use of the basement and elevator; that the court erred in permitting a former janitor of defendant to testify concerning the use of the basement; that the court erred in refusing to permit the secretary of defendant to be asked whether plaintiff had any permission to go to the basement to attend to the water supply; that it was error to admit evidence of loss of profits from farming certain lands; that the court erred in stating that it would instruct the jury as

to facts proven; and that it was reversible error to permit plaintiff's counsel to make a second argument to the jury after defendant had waived its argument.

In view of the constitutional rule (art. VI, sec. 42) that "No judgment shall be set aside, or new trial granted in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a mis carriage of justice," the case cannot be reversed for these

reasons.

All the errors complained of relate to the right of the plaintiff to recover for the injury which she suffered, and, in view of the fact that she was invited to enter the elevator and accepted the invitation to enter therein and was thereafter injured by the negligent management of the elevator by the employee of the defendant, who knew that she was lying helplessly in a position which must necessarily have resulted in her injury if the elevator was moved before she had an opportunity to withdraw her foot from a position of danger, it is unnecessary to consider in detail the points made by the defendant, for it is clear that there has been no miscarriage of justice in holding the defendant liable for plaintiff's injuries.

[2] The defendant claims that certain instructions given by the court to the jury withdrew the defense of contributory negligence from their consideration. Defendant had pleaded that the plaintiff was guilty of contributory negli gence in that she entered the elevator while it was in motion. The only evidence in that regard is the evidence of the elevator-man that he had stopped the elevator a short distance above the floor of the basement, and that just as she was stepping in he lowered the elevator and her foot caught under the floor of the elevator, so that she stumbled into the elevator. Assuming that this evidence is true, neither her entry into the elevator while it was in motion, if it was, nor her fall was the proximate cause of the injury. The injury was caused by plaintiff's leg coming in contact with the floors of the building above the point where she stumbled and resulted not from the descent of the elevator at the

time she stumbled, but the ascending of the elevator after she was lying upon the floor of the elevator. It can be said as a matter of law that the fall of the plaintiff into the elevator was not the proximate cause of the injury. Therefore, even if the instructions complained of had the effect asserted by counsel of withdrawing the issue of contributory negligence from the jury, they were not erroneous.

The other questions raised by the appellant relate to the measure and amount of damages.

[3] At the time of the trial, more than two years after the time of the accident, the plaintiff was still able to get about only by the use of a wheel-chair. She was unable to bear her weight upon her left leg and suffered some pain when she bore her weight upon her right leg. The physicians who testified in the case agreed that for the time being her injuries were total and were to some extent permanent. The witnesses agreed that, in the absence of an operation to correct the disability, she would not be able to put her left heel to the floor. The physician called by the defendant testified that, while she would suffer some permanent limitation of the functions of the left foot and ankle, such defects could be so far cured by an operation that the total disability of the left leg would be less than ten per cent that is to say, she would ultimately recover more than ninety per cent of the function of the limb. On the other hand, the plaintiff's physician testified that the limb was permanently injured and it was impossible to tell how long it would be before she would be able to walk upon the limb, but that she might at some time be able to walk with the aid of a cane. The jury were at liberty to accept the testimony most favorable to the plaintiff and evidently did so.

It is claimed that the judgment is excessive. The rule on that subject on appeal is thus stated in Hale v. San Bernardino etc. Co., 156 Cal. 713, 715, [106 Pac. 83]: "The amount of damages in such cases is committed first to the sound discretion of the jury, and next to the discretion of the judge of the trial court, who, in ruling upon the motion. for a new trial, may consider the evidence anew, determine anew the facts, and set aside the verdict if it is not just. Upon appeal, the decision of the trial court and jury on the subject cannot be set aside unless the verdict is 'so plainly

and outrageously excessive as to suggest, at the first blush, passion or prejudice or corruption on the part of the jury.' We cannot say that the verdict is excessive as a matter of law.

[4] It had been stipulated that both parties could have an hour in which to present their case to the jury. After plaintiff had closed its opening argument, the defendant waived its argument and the court permitted the plaintiff to further argue to the jury. This is claimed to be error. The plaintiff had evidently planned to have Mr. Meldon open and Mr. Gett close the argument, each to take onehalf hour, and was undoubtedly surprised by the defendant waiving argument. The plaintiff thereupon requested that William A. Gett be permitted to address the jury for onehalf hour. The court thereupon stated that he would grant the request and offered to allow the defendant to withdraw its waiver of argument and to proceed with its argument for one hour, in accordance with the stipulation, if defendant desired to do so. After consultation, defendant's counsel declined to argue the case, contenting themselves with an objection to the plaintiff's further argument. The court, over defendant's objection, thereupon permitted plaintiff's counsel to argue the case further to the jury. If, after stipulating that each side should have an hour for argument before the jury, the defendant, without previous notice to the plaintiff, waives argument and thus take the plaintiff by surprise, the court, in the exercise of a sound discretion, should allow the plaintiff whatever argument to the jury is necessary in order to overcome the effect of the surprise. And, similarly, should allow the defendant whatever argument was necessary in order to prevent any prejudicial result flowing from the fact that it waived argument before it knew that the court would permit further argument by plaintiff. This was done in this case. The ruling of the court was not erroneous, but proper.

[5] In the appellant's reply brief we are asked to take judicial rotice that an elevator is fitted so closely into the shaft as to leave practically no space between the edge of the floor and the wall of the shaft, and that it was a physical impossibility to run the elevator to the top story and back again, as described by plaintiff, because there was barely room enough for clearance of the elevator itself. Appellant

states: "Plaintiff's recital of the accident was manifestly not only grossly exaggerated but actually untrue, as it is clear that her injury must have occurred through her limb striking the ceiling of the basement. These embellishments were obviously added by her for the purpose of arousing the prejudice and sympathy of the jury." As no punitive damages were asked or allowed, the question of how many times the elevator was moved up and down is immaterial except as it indicates the amount of suffering inflicted upon the plaintiff and the degree of negligence of the elevator-man, and the truth or falsity of the plaintiff's testimony was to be determined by the jury. We cannot take judicial notice that it was false.

Judgment affirmed.

Waste, J., Shaw, C. J., Lennon, J., Sloane, J., and Shurtleff, J., concurred.

[S. F. No. 9935. In Bank.-December 19, 1921.]

SEID PAK SING et al., Respondents, v. HARRY B. BARKER et al., Appellants.

[1] MORTGAGE-FORECLOSURE SALE-APPEAL-STAY OF PROCEEDINGS.A decree declaring the amount due on a mortgage and providing for its payment within seventy days and, if not paid, that the property be sold in satisfaction of the indebtedness and a judg ment entered for the deficiency, if any, is a judgment directing a sale of real property within the meaning of section 945 of the Code of Civil Procedure, and a stay bond on appeal is necessary to stay the sale.

[2] ID.—APPEAL BY MORTGAGEees-Portion of Judgment

Supersedeas.

A writ of supersedeas will not issue to stay a foreclosure sale because of the mere fact that the mortgagees also took an appeal from the portion of the judgment fixing the amount due on the mortgage, since the determination of the appeal could not reduce the judgment below the amount allowed.

APPLICATION for a Writ of Supersedeas to stay foreclosure sale. Denied.

The facts are stated in the opinion of the court.