mining properties, his application to the [properly if not necessarily included the right president for written permission so to do, the to take ore samples. The purpose of the written instructions of the president to the examination is to arrive at the value of the superintendent in charge of the mine, all in property in which the stockholder is interestcompliance with the law. Civ. Code, §§ 588, ed. Broadly speaking, that value is compos589. Further plaintiff pleaded the superin- ed of two elements, the economical or untendent's expressed desire to comply with the economical working of the mine, and the expresident's letter of instruction and an agree-tent and richness of the ore body. One emment as to the day when plaintiff was to be allowed to examine the mine. He began his examination under the guidance of James Meehan, foreman of the mine, delegated to the performance of this duty by the superintendent. The foreman, declaring that he was acting under instructions from his superintendent, refused to allow plaintiff to take any samples of the ore or ore bodies of the mine. Plaintiff pleaded that these samples were a necessary part of his proposed examination, and that it was impossible to make a full and complete examination without taking such samples. Basing his demand for judgment upon this asserted refusal of the superintendent to comply with the law, he asks a monetary judgment in the sum of $1,000, a further judgment compelling the officers of the corporation to discharge the superintendent, and finally an injunctive judgment forbidding the corporation from ever thereafter employing the superintendent and from paying him any salary after the 29th day of April-the date of the breach of the statutory duty.

A general demurrer to this complaint was interposed and sustained. Plaintiff declining to amend appeals from the judgment which followed. The governing law has received consideration from this court in Eyre v. Harmon, 92 Cal. 580, 28 Pac. 779, and very recently in Hobbs v. Tom Reed Gold Mining Co., 164 Cal. 497, 129 Pac. 781, 43 L. R. A. (N. S.) 1112. For the scope and purpose of the law, for its dual character as being remedial and penal, it will suffice to refer to these two cases. Unquestionably the action here brought addresses itself to the penal side of the law. The cause of action rests upon the asserted violation of a right which the statute gives to plaintiff as a stockholder of defendant. The "relief" sought (to employ the word which the Code uses) is the recovery of the monetary penalty prescribed by the law, with the imposition of the additional penalties which the law imposes and inflicts upon the offending officer.

[1, 2] Section 588 of the Civil Code in express terms gives a stockholder the right "to examine such mining property, accompanied by an expert, take samples and make such other examination as he may deem necessary." Hereby is given the right of examination, and within that right of examination, by its very definition, is included the right to take samples. Indeed, if this were not expressly conferred, if the statute gave no more than a right of examination, it would require no straining of the meaning of the word as applied to mining properties to say that it

ploying an expert to examine a mining prop-
erty would view with amazement a report
that declared there was an ore body of given
dimensions, but that the expert had taken
no samples, caused no assays to be made, and
could place no valuation upon that ore body.
Section 588 of the Civil Code then defines
the right of examination of a stockholder.
Section 589, dealing with the same matter,
prescribes the penalties for a refusal to ac-
cord to the stockholder the right which the
law gives him. Section 589 declares that any
stockholder "is entitled to visit
and examine the mine"; that upon applica-
tion the president must issue his instructions
to the superintendent "commanding him to
show and exhibit such parts of said mine or
mines as the party named in said order may
desire to visit and examine." Statutes im-
posing penalties are, for humane reasons, sub-
jected to strict construction. Subjecting this
statute to such construction, the learned
judge of the trial court, under the conviction
that because section 589 did not in terms
provide a punishment for a failure to allow
the taking of samples, and as the taking of
samples did not come within the strict defini-
tion of inspection and examination, for a
violation of the stockholder's right to take
such samples this action to enforce a penalty
did not lie, the stockholder's sole right being
in mandate to compel a performance of the
duty. In this we think the court erred. The
sections of the Code are in reality but dis-
jointed parts of a single act. Stats. 1905, p.
584. The division into Code sections while
not illogical is nevertheless arbitrary. The
connection between the two sections still re-
mains most intimate. The examination
which the stockholder is of right entitled to
make by section 588 is the same examination
for the refusal to allow him to make which
the officers of the corporation become liable
to the penalties of section 589, and the de-
murrer upon this ground was improperly
sustained.

[3] Respondent in support of the ruling, however, argues further that the case comes within the rule that the penal provisions of a statute will not be enforced in the case of contracts made or acts done outside of the boundaries of the state where the law is enacted, and herein it relies upon such cases as First National Bank v. Price, 33 Md. 487, 3 Am. Rep. 204, Bettys v. Milwaukee, etc., Ry. Co., 37 Wis. 323, and State of Indiana v. John, 5 Ohio, 217. But these and all like cases go only to the extent of saying that the courts of one state will not impose or inflict penalties provided by the laws of another

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1260, 1270, 1273, 1274, 1276 Cent. Dig. §§ 351-368; Dec. Dig. 123.] 1280; Dec. Dig. 314.]

3. CARRIERS 333-STREET RAILROADS-INJURIES TO PASSENGERS-Contributory NEG

Where, on cross-examining witnesses, their signed statements were produced and read to them with the design of impeachment, but with [Ed. Note. For other cases, see Appeal and no preliminary foundation and without intrError, Cent. Dig. §§ 4089-4105; Dec. Dig.ducing the statements in evidence, the testimony 1040.1 so elicited was inadmissible, as was that of an

other witness who took the statements, since impeachment by prior conflicting statements of witnesses requires that a foundation be laid before admitting them.

Railroad Company, a corporation. From a judgment for plaintiffs and an order denying new trial, defendant appeals. Affirmed. Arthur L. Levinsky, of Stockton, for appel

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 1233-1242, 1246; Dec. Dig. lant. D. M. Young, of Stockton, for respond388.]

14. WITNESSES 393-IMPEACHMENT.

Where, on proper foundation, testimony of a witness given at a coroner's inquest was read to him, and he denied its correctness, but no further effort was made to impeach him, the admission of the testimony read was not error. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 1252-1257; Dec. Dig. 393.] 15. CARRIERS 348-STREET RAILROADS RIGHTS OF PASSENGERS.

In an action for death of a street car passenger, an instruction that, if a passenger is injured without fault on his part while on the steps of a moving car, the burden is on the company to show absence of negligence, is not erroneous for declaring that a passenger has a right to be on the steps of a moving car, since that is his right in entering and preparatory to leaving the car.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1403-1405; Dec. Dig. 348.] 16. CARRIERS 321 - STREET RAILROADS NEGLIGENCE-BURDEN OF PROOF.

An instruction that injury from the operation of a car raises a presumption of negligence on the part of the company, and that the burden is on the company to prove itself free from negligence and to show contributory negligence of the passenger, was correct.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1247, 1326-1336, 1343; Dec. Dig. 321.]

ents.

HENSHAW, J. Eva Froeming, traveling at night upon an electric street railway car of the defendant corporation in the city of Stockton, stepped, fell, or was thrown from the car, sustaining injuries which caused her death. Her husband and her minor children, through their father as guardian ad litem, brought their action to recover damages for that death. The verdict of the jury was in plaintiffs' favor. The judgment followed the verdict, and from that judgment, and from the order denying its motion for a new trial, defendant appeals.

Saving the conductor of the car, whose testimony is disputed, there was no eyewitness to the manner in which the deceased sustained her injuries. There was no doubt but that the deceased had signaled to the conductor to stop the car for the purpose of allowing her to alight. The place of stoppage would be at or upon the next street which the car was approaching-Eighth street. There is no doubt, either, but that the motorman of the car, under the conductor's signal, slowed his car for the purpose of making this stop. There is also no doubt but that the deceased arose from her seat, which was upon the open rear end of the car, and stood either upon the platform or upon one of the steps, in readiness to alight. But whether the car actually came to a stop and then suddenly, and without giving the deceased time to alight, lunged forward with a jerk, or whether after slowing down and coming almost to a stop it did this same thing, with

18. NEGLIGENCE 141-INSTRUCTIONS-CON- out actually stopping, plaintiffs' witnesses TRIBUTORY NEGLIGENCE-BURDEN OF PROOF. were in doubt. Wherefore plaintiffs charged Under the rule that, where plaintiff's evidence establishes his contributory negligence, the burden of proving it is removed from defendant, an instruction merely that if the jury found "from the evidence" that plaintiff was contributorily negligent sufficiently indicated that all evidence, plaintiff's as well as defendant's, should be examined on that question.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. 141.] 19. DEATH 99-EXCESSIVE DAMAGES.

A verdict for $18,000 for the wrongful death of a street car passenger, who was married and left three girls of tender age, and a husband, and who was an accountant and aided her husband in figuring on contracts in his business, and was working to help maintain the home, was not excessive.

[Ed. Note.-For other cases, see Death, Cent. Dig. 88 125-130; Dec. Dig. 99.]

in separate counts, one count alleging that the car, after stopping, suddenly started, the other count averring that after the car had slowed down and arrived near or at the place where it usually stopped to allow passengers to debark, and while the deceased was attempting to alight therefrom, the defendant's agents and servants negligently caused the car to be suddenly and violently jerked and started forward.

of the fact that the court overruled his de[1] Appellant's attorney complains bitterly murrer to this complaint, but no more bitterly than he complains of every ruling, act, and happening at the trial. the counts are inconsistent, meaning by this He complains that that it could not be true that the deceased Department 2. Appeal from Superior could both have been thrown from the car Court, San Joaquin County; J. A. Plummer, by a sudden jerk before it stopped and Judge. thrown from the car by a sudden jerk after Action by August Froeming, on his behalf it stopped. This is quite true. He supports and as guardian ad litem of Olga Froeming his argument that the demurrer should have and others, against the Stockton Electric been sustained by showing, that, after the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

evidence of plaintiff had been taken at the trial, the court granted his motion for a nonsuit as to the count charging upon the stoppage of the car. Therefore, he argues, if his demurrer had been sustained and plaintiffs had been put to their election and had elected to stand upon the count charging that the car had been stopped, defendant would have prevailed in the action. But underlying this most specious argument is found the very reason why inconsistent counts are permitted. Stockton, etc., Works v. Glen Falls Ins. Co., 121 Cal. 167, 53 Pac. 565. The result of appellant's success in having the demurrer sustained and the plaintiffs' unfortunate choice of counts in the election thus forced on them would have meant that it prevail in the action, but it would also have meant that the plaintiffs would have lost a meritorious cause of action and right of recovery through some overrefined principle of pleading. However, suffice it to say that the principle which appellant invokes as existing does not exist. This was a single action for a recovery growing out of injuries negligently inflicted by defendant upon deceased. It was open to plaintiffs to charge this negligence in separate counts, as occurring in as many ways as they believed their evidence would show, and plaintiffs are entitled to recover if any one well-pleaded count was supported by sufficient evidence. Jenson v. Dorr, 159 Cal. 742,

This remark, to which an exception was taken, is urged as error. The order appointing August Froeming guardian ad litem, offered in evidence, is objected to, amongst many others upon the ground that the defendant cannot be bound by the allegation set forth in the petition for the appointment of guardian. The court properly admitted the order, limiting the admission with care for the purpose of only showing the fact of appointment and not the truth of any of the matters contained in the petition. Exception to this is taken. These may serve as exemplars showing the inutility of a detailed consideration of all, for most of them are of the same general character. Of the few that merit consideration, one is the exception to the introduction of McCarty's Tables of Life Expectancy without a foundation being laid therefor. But courts take judicial notice of the standard tables of life expectancy, and so, of course, take judicial notice of the tables that are standard tables, and any such table satisfactory to the court may be introduced without foundation proof. Valente v. Sierra Ry. Co., 151 Cal. 539, 91 Pac. 481.

to wait until it stopped, saying to her, "Lady, wait for the car to stop." She made no reply and stepped to the bottom step and then stepped off. He saw her fall and immediately swung off after her. Appellant's argument upon its motion for a nonsuit and the argument which it here addresses to this court is that plaintiffs were bound by this testimony, since they had called the conductor as a witness, and that, if it be thought there is a conflict between this testimony and that of the other witnesses who did not actually see the occurrence, then the testimony of the other witnesses must be utterly discarded as incredible and unworthy of belief. The statement of appellant's position in this regard demonstrates its unsoundness. There was substantial testimony before the trial court and before this court supporting plaintiffs' charge. It was not for the trial court upon the hearing of the motion for a nonsuit, nor yet for this court upon appeal, to cast out of consideration all of that evidence. It was the duty of the trial court to submit it, as it did, to the consideration of the jury, and the verdict of the jury establishes that they regarded it as trustworthy and true. What has been said touching the [13] The three principal witnesses for the motion for a nonsuit sufficiently answers plaintiffs had each been interviewed by an appellant's next contention, elaborately ar- emissary of the defendant, a notary public, gued, that the evidence is insufficient to jus- who took down their statements in writing. tify the verdict. The argument here is bas- These statements, after having been so taken ed upon the same grounds as those above down, were read to these witnesses. The noted the incredibility of plaintiffs' wit-witnesses were uncertain whether it could nesses other than the conductor, who was be said that they had sworn to these statenot called by them to testify upon any of these matters, and the assertion that the plaintiffs must be bound by the testimony of the conductor which testimony appellant itself brought out on so-called cross-examination. But as it was cross-examination on matters not touched upon in the testimony in chief, under familiar principles the appellant made the conductor its own witness upon these matters. For, as has been said, all that plaintiffs sought to elicit by their examination in chief of the conductor was the fact, not even in controversy, that Eva Froeming had been a passenger upon his car at the time of the accident.

ments. They said they were asked whether they would swear to them and replied that with certain corrections they would. They did not seem to understand that they had in fact sworn to them. Upon cross-examination of these witnesses these statements were produced and extracts from them read to the witnesses. Objections were from time to time interposed to the method of cross-examination, upon the ground that, if it was sought to impeach the witness by showing contradictory statements, the proper foundation for the questions had not been laid. Complaint is made of the court's rulings upon this matter and of its further rulings against admitting the testimony of the witness for the defense who had taken down these statements. The court's rulings were to the effect that, if it was designed to impeach the witness by showing that he had made contradictory statements embodied in the writing, the proper foundation therefor had not been laid. The attorney for the defendant is no novice at the bar and needed no enlightenment as to the proper course to pursue in the matter. That he failed to pursue it, as unquestionably he did, forces the inference that the statements contained in the "Mr. Levinsky, allow me to suggest, when you writing were not contradictory to the staterepeat the witness' testimony, you give the wit-ments given by the witnesses upon the stand,

[9-12] We are asked to consider some 63 asserted errors in the reception and rejection of evidence. It would be profitless to review them all. Thus, exception is taken to the court's refusal to allow a witness to testify to what the conductor did and said after the accident, the purpose of the inquiry being to show that the conductor voiced some explanation as to how the accident occurred. The ruling was proper. Such ex post facto evidence forming no part of the res geste and being usually self-serving is not admissible. Again, the court suggested:

ness a chance to state whether that was his testimony or not. I did not so understand his testimony."

and that the efforts of the attorney were directed to establishing the imputation and