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the time of the accident. No interrogatory | tiff, Mrs. Tousley, it must appear from the was submitted as to plaintiff, but the general evidence that it was the personal failure of verdict in her favor necessarily, in view of the plaintiff to exercise ordinary care that the instructions to the jury, implies a finding | caused her injuries." This was a portion of in her favor on the question of contributory a somewhat lengthy instruction informing negligence. It is unnecessary here to con- the jury substantially that if plaintiff was sider the question of the correctness of the riding in an automobile then owned and finding as to Loftus. As already stated, driven by Mr. Loftus, and if she had neither plaintiff was simply a guest of Mr. Loftus control of nor right to control him, the careon this ride, and he was in no way subject | lessness of the driver, if any, contributing to to her control or under her supervision or direction as to the manner in which the automobile should be operated. Under such circumstances, any negligence of Mr. Loftus could not be imputed to her. As said in Fujise v. Los Angeles, etc., Ry. Co., 12 Cal. App. 207, 211, 107 Pac. 317, 319: "In order that contributory negligence shall prevent the recovery of damages for a personal injury, it must appear that the negligence is that of the injured person, or of some one over whom he exercises some control." The only question in this connection, so far as plaintiff is concerned, is whether she exercised ordinary care for her own safety. See Thompson v. Los Angeles, etc., Railway Co., 134 Pac. 709; Fujise v. Los Angeles Ry. Co., supra; Bresee v. Los Angeles T. Co., 149 Cal. 131, 85 Pac. 152, 5 L. R. A. (N. S.) 1059. We have considered the evidence bearing on this question, and find no warrant whatever for holding that, as matter of law, she was in any way negligent.

the injuries of plaintiff, could not be imputed to her so as to constitute contributory negligence on her part; but in such case, to sustain the defense of contributory negligence on her part, it must appear as above stated. The portion complained of was immediately followed by this: "And you are therefore instructed that if you believe that at the time of the accident the plaintiff used ordinary care-that is, the care that an ordinarily prudent person would have exercised under the same or similar circumstancesthen you cannot find that she has been guilty of contributory negligence." The instruction, fairly taken as a whole, means no more than that to sustain the defense of contributory negligence on the part of Mrs. Tousley, she personally, as distinguished from the driver of the car, must have been guilty of want of ordinary care contributing to her injuries, if, of course, the jury found that she was but a guest of the driver, and had no control or right of control over him. We do not think that it is fairly susceptible of the construction claimed for it by defendant, or that it could have been understood by the jury in any other way than we have stated.

[5] It is claimed that the verdict and special verdict are against law simply because they are in violation of two certain instructions given to the jury on the question of contributory negligence. It is manifest from a reading of these instructions that they could in no degree have prejudiced defendant's cause. An objection of this character assumes that an instruction relied on is not correct as matter of law, but that under it the party objecting was nevertheless entitled to a verdict, and that for the failure of the jury to observe it, he is entitled to a reversal. This was the rule declared by this court in Emerson v. County of Santa Clara, 40 Cal. 543, and one or two subsequent cases. This rule has been entirely discredited and overruled in later cases. The rule now is "that while the jury should conform to the instructions of the court upon matters of law, if it appear to the appellate tribunal that an instruction was erroneous, it will not disregard a verdict contrary to such erroneous instruction." See O'Neill v. Thomas Day Co., 152 Cal. 357, 92 Pac. 856, 14 Ann. Cas. 970. "The fact that the court erroneously instruct-bered that a person in great peril, when imed the jury to the contrary does not make the verdict against law." O'Niell v. Law Union, etc., Co., 135 Pac. 1124.

[6] Complaint is made of a portion of an instruction given on the subject of contributory negligence, reading as follows: "But in law, to sustain the defense of contributory negligence on the part of the plain

137 P.-3

[7] We see no good objection to the instruction marked "Court's 27." Fairly considered, it told the jury no more than is conceded by learned counsel for defendant to be the law, viz., that the conduct of the plaintiff when she found herself placed in sudden peril by the negligence of the defendant, if she was so placed, was to be judged in view of the circumstances and surroundings, and not by the standard applicable to one not conscious of being in a position of danger. The jury was told that she was required to use ordinary care to protect herself, which, it was further told, was the care that an ordinarily prudent person would use under the same or similar circumstances, considering the danger, proximity of the car, speed of the car, her position in the automobile, and all other circumstances proven to have occurred at the time of the accident. "It must be remem

mediate action is necessary to avoid it, is not required to exercise all that presence of mind and carefulness which are justly required of a careful and prudent man under ordinary circumstances." Harrington v. Los Angeles, etc., Ry. Co., 140 Cal. 521, 74 Pac. 17, 63 L. R. A. 238, 98 Am. St. Rep. 85.

[8] We are of the opinion that the trial

court was Justified in refusing to give de- SLOSS, J. This is an action to recover fendant's requested instruction No. 26. The damages for personal injuries sustained instruction was clearly in part an instruc- through the alleged negligence of defendant. tion as to facts, an instruction upon matters The plaintiff was driving an automobile that it was within the exclusive province which collided with one of defendant's elecof the jury to determine, in view of the evi-tric cars. The plaintiff recovered judgment dence. in the sum of $2,000, and the defendant apThe judgment and order denying a new peals from said judgment and from an order trial are affirmed. denying its motion for a new trial.

We concur: SLOSS, J.; SHAW, J.

(166 Cal. 404)

In the collision which gave rise to this action, Mrs. D. Augusta Tousley, who was riding in plaintiff's automobile as his guest, also suffered injuries, on account of which she brought an action against defendant. The

LOFTUS v. PACIFIC ELECTRIC RY. CO. defendant's appeals in that action, which

(L. A. 3221.)

(Supreme Court of California. Dec. 3, 1913. Rehearing Denied Jan. 2, 1914.)

resulted in a judgment in favor of plaintiff therein, have just been disposed of in Tousley v. Pac. Elec. Ry. Co. (L. A. No. 3222) 137 Pac. 31. So far as the points here in

1. RAILROADS (§ 327*)-CROSSINGS-CARE RE-volved are concerned, the evidence in the QUIRED OF TRAVELERS.

An electric railroad track on the company's private right of way, except at street crossings, is of itself a sign of danger, and a traveler approaching the track with intent to cross it must look and listen to ascertain whether cars are approaching.

[Ed. Note. For cther cases, see Railroads, Cent. Dig. §§ 1043-1056; Dec. Dig. § 327.*] 2. NEGLIGENCE (§ 136*)-CONTRIBUTORY NEGLIGENCE QUESTION FOR COURT OR JURY.

Whether one sustaining a personal injury was guilty of contributory negligence is for the jury, and is for the court only where the facts are undisputed, and then only where on such facts reasonable minds can draw but one conclusion.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] 3. RAILROADS (§ 348*)-COLLISIONS-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.

A conflict in the evidence on the issue of the contributory negligence of a traveler struck by an interurban car at a street crossing must be substantial; and where the established facts make it plain that a traveler, looking and listening, must have seen or heard the approaching train, the testimony that he looked and listened, but did not hear or see, will not support a verdict in his favor.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.*] 4. RAILROADS (§ 350*) — INJURIES IN COLLISIONS CONTRIBUTORY NEGLIGENCE QUES

TION FOR JURY.

Whether a traveler struck by an interarban car at a street crossing was guilty of contributory negligence held, under the evidence, for the jury.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*]

Department 1. Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge.

Action by William M. Loftus against the Pacific Electric Railway Company. From a judgment for plaintiff, and from an order de nying a new trial, defendant appeals. firmed.

Af

J. W. McKinley and R. C. Gortner, both of Los Angeles, for appellant. E. B. Drake, of Los Angeles, for respondent.

record now before us is identical with that shown in the Tousley Case. We may, therefore, refer to the opinion in that case for a general review of the facts surrounding the

collision.

But two points are made by the appellant. It is claimed, first, that there was no evidence to justify the finding that the defendant had been guilty of negligence. The views expressed in the Tousley Case, where the question is fully considered, furnish a sufficient answer to appellant's claim in this connection.

The only other contention urged is that, on the evidence, the plaintiff was, as matter of law, guilty of contributory negligence, and that, accordingly, his right of recovery should not have been submitted to the jury. While plaintiff's negligence was not a matter for decision in the other case, much light is thrown upon the issue by what is said in the opinion in that case. It appears, as is there pointed out by Mr. Justice Angellotti, that the evidence was such as to justify the inference that a person on or over the westerly rail of the westerly track would not be able to see a car approaching the crossing on the easterly track until it had come to within 400 or 500 feet. There was also evidence that the car of defendant was going at the rate of 40 miles an hour, or about 60 feet a second. At this rate it would traverse 400 feet in seven seconds, or thereabouts. The plaintiff, according to his testimony, slowed down and looked before he got onto the west track, but saw no car approaching. He looked again when he got "about the middle of the west track," and saw the electric car, "about three or four pole lengths down." (The poles were 90 feet apart.) He then, as he testifies, used every effort to stop his automobile, but failed

to do so in time to avert a collision. The extreme front of the automobile extended some six feet beyond the driver's seat. The electric car had an "overhang" of 23 inches beyond the rails, the steps extending 4 inches

further. The space between the tracks was a verdict in his favor.
9 feet. Assuming that the tracks were stand- supra, and cases cited.
ard gauge 4 feet, 81⁄2 inches-it was neces-
sary for the front of the automobile to trav-
erse a distance of only about 3 feet in order
to bring it to the line covered by the extreme
width of the electric car. It cannot be said
that the plaintiff was necessarily at fault in
not bringing his automobile to a stop in this
distance. He testified that he was going at
a rate of two or three miles an hour, and
there was evidence that his automobile, or
one like it, could, if moving at a rate of
three miles an hour, be brought to a stop
"within three or four feet."

[1] The claim of contributory negligence must, then, rest upon plaintiff's prior conduct in approaching the defendant's track as he did. It is unnecessary to enlarge upon the well-settled rule that a railroad track is in and of itself a sign of danger, and that one approaching such track with intent to cross it is bound to exercise his faculties of sight and hearing in order to ascertain whether a train is approaching. Herbert v. S. P. Co., 121 Cal. 227, 53 Pac. 651; Zibbell v. S. P. Co., 160 Cal. 237, 116 Pac. 513. While these requirements of care have usually been applied to persons seeking to cross the track of a steam railroad, they are also fairly applicable to crossings over the track of an electric railway, constructed and operated as the defendant's road was. Heitman v. Pac. E. Ry. Co., 10 Cal. App. 397, 402, 102 Pac. 15; Simoneau v. Pac. E. Ry. Co., 159 Cal. 494, 504, 115 Pac. 320, Ann. Cas. 1912C, 1205.

Zibbell v. S. P. Co.,

[4] We think the present case is not one in which it can be said that the uncontradicted evidence forces the conclusion that the plaintiff approached the track without exercising the care which an ordinarily prudent man, situated as he was, would have exercised. Before he turned his automobile to cross the track, he brought his machine to a stop, or nearly to a stop, and, as he testified, looked and listened to ascertain whether a train was approaching. At that time the train was still at such a distance and so placed as, under the evidence, to justify the inference that it could not be seen or heard by one in plaintiff's position. As he advanced, after turning to cross the tracks, the point beyond which the easterly track was hidden by the line of poles was constantly coming nearer to him, as was the train. Under all the circumstances, there is nothing unreasonable in the inference that the train could neither be heard nor seen by plaintiff from the time he first slowed down until he reached the point, on the west track, where, as he says, he became aware of the fact that a train was approaching. This being so, the jury had the right to believe, from the plaintiff's story, that he took advantage of every opportunity to learn of the possible approach of a train, and that, notwithstanding his precautions, he could not, and did not, know that a train was nearing the crossing until he was in a position of danger from which he was unable, by the exercise of Bilton [2] Ordinarily, of course, the question ordinary care, to extricate himself. v. S. P. Co., 148 Cal. 443, 83 Pac. 440. The whether a plaintiff has been guilty of contributory negligence is one of fact for the question of contributory negligence "was one jury. It becomes a question of law for the upon which reasonable men might well differ. decision of the court only where the facts This being so, it was a question for the jury." The court did are undisputed, and, even then, only where, Hoff v. L. A. P. Co., supra. on those facts, reasonable minds can draw not, therefore, err in submitting this issue but one conclusion on the issue of plaintiff's to the jury, and the verdict thereon cannot be said to be contrary to the evidence. negligence. Herbert v. So. P. Co., supra; The judgment and the order denying a new Johnson v. S. P. R. R. Co., 154 Cal. 285, 97 trial are affirmed. Pac. 520; Hoff v. L. A. P. Co., 158 Cal. 597, 112 Pac. 53; Zibbell v. S. P. Co., supra. "It has often been said by this court that it is very rare that a set of circumstances is presented which enables a court to say, as a matter of law, that negligence has been shown. As a general rule, it is a question # " Seller v. of fact for the jury. Market St. Ry. Co., 139 Cal. 268, 271, 72 Pac. 1006.

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We concur: ANGELLOTTI, J.; SHAW, J.

(166 Cal. 446)

In re WALDEN'S ESTATE. MONRO et al. v. LATIMER et al. (L. A. 3418.)

(Supreme Court of California. Dec. 3, 1913. Rehearing Denied Jan. 2, 1914.)

REVIEW.

[3] These observations are subject to the qualification that, in this class of cases as in others, the conflict of evidence which creates 1. APPEAL AND ERROR (§ 1011*)—FINDINGS— a question of fact for the jury must be substantial and real. If the established facts and conditions are such as to make it plain that a plaintiff, looking and listening, must have seen or heard an approaching train, his testimony that he looked and listened, but did not see or hear, is not enough to support

A finding by the trial court as to matter of heirship, in a proceeding to determine the right of succession when based on conflicting evidence, cannot be reviewed on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3983-3989; Dec. Dig. 1011.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

2. APPEAL AND ERROR (§ 1011*) - REVIEW FINDINGS-ABUSE OF DISCRETION.

Even though all the testimony was given by deposition, a finding of fact by the trial court will not be disturbed on appeal unless an abuse of discretion appears.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. 8 1011.*]

3. EVIDENCE (§ 295*) — HEARSAY-DECLARATIONS-HEIRSHIP.

Statements by members of decedent's family concerning family history and relationship, made after the controversy as to the right of the estate of decedent had arisen, and in reply to questions propounded to elicit evidence, are inadmissible; such declarations being admissible to prove pedigree or relationship only when made naturally and spontaneously before any controversy arises.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1153; Dec. Dig. § 295.*]

4. JUDGMENT (8 736*) - CONCLUSIVENESS MATTERS CONCLUDED.

A decree distributing the estate of a decedent is not conclusive on the question of the heirs of the sole distributee, where she subsequently died, and plaintiff claimed to be entitled to her estate even though plaintiff, if the heir of the sole distributee was entitled to share in the estate of the first decedent, for right to inherit from the distributee could not have been determined in that proceeding.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1264, 1265; Dec. Dig. § 736.*] 5. NEW TRIAL (§§ 104, 105*)-RIGHT TO NEW TRIAL-NEWLY DISCOVERED EVIDence.

The trial court, in its discretion, may deny a new trial sought on the ground of newly discovered evidence, where it is merely cumulative, or tends only to impair the credibility of the evidence of the prevailing party.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 183, 218-223, 229; Dec. Dig. 88 104. 105.*1

Department 1. Appeal from Superior Court, Los Angeles County; James C. Rives, Judge. In the matter of the estate of Matilda Walden, deceased. Proceeding between Martha Monro and others and William Latimer and others to determine the succession. From a judgment for plaintiffs,, defendants appeal. Affirmed.

pealed from this judgment and from an order denying their motion for a new trial.

The decedent, Matilda Walden, a childless widow, was the last survivor of the five children of William Wilson and Martha Wilson. The names of the five brothers and sisters were John Wilson, George Wilson, Matilda Wilson, Eliza Wilson, and James Wilson. John, George, and Eliza died childless. The controversy in this case arose over the question whether or not James, the other brother, died without issue. The court decided that he had children, of whom the said Martha Monro and the children of Jane Ross aforesaid are the only survivors. These, being the next of kin, were awarded the succession to the estate. The principal contention of the appellants is that this decision is not sustained by sufficient evidence.

[1, 2] There is no ground upon which this court can interfere with the decision of the court below upon this question. The fact that James Wilson was a brother of the decedent, and that the above-mentioned persons are his surviving child and grandchildren, was established by the testimony of said Martha Monro, Robert Ross, Sarah Warren, Robert Wilson, Eliza Roe, Thomas Jones, Richard Kells, and John Morton. There is nothing in this case to distinguish it from the ordinary case where a decision is rendered upon conflicting evidence. While it is true that the witnesses did not, upon cross-examination, sustain themselves to the entire satisfaction of the appellants, nevertheless, their testimony, if true, was sufficient to prove the validity of the claims of the respondents, and the decision of the court below as to their credibility is conclusive upon this court. Even if we concede the claim of the appellants that the appellate court may weigh the evidence where all of the testimony is given by deposition, it is not of such a character that we would be justified in reversing the decision of the trial court upon the ground that it was an abuse of discretion. Unless such abuse appears, the finding must stand.

Elon G. Galusha, of Los Angeles, for appellants. C. M. Stephens, Geo. P. Adams, Wil- [3] The testimony of the appellants' witliam T. Kendrick, Leland S. Bower, Wil-ness Miss Leckey to conversations she had in liams, Goudge & Chandler, Charles Cassat Davis, Ball & Ball, and Trusten P. Dyer, all of Los Angeles, for respondents.

SHAW, J. This is an application, under section 1664 of the Code of Civil Procedure, to have the succession to the estate of Matilda Walden determined. The court adjudged that Martha Monro was a niece of the decedent, and was entitled to one-half of the estate, and that the five children of Jane Ross, deceased, who was also a niece of the decedent, were entitled to the remaining half. William Latimer and five other persons, claiming as descendants of James Latimer, a deceased uncle of the decedent, have ap

Ireland with members of the Wilson family, in which it is claimed they made statements concerning the family history and relationship, was properly excluded by the court below. The conversations took place after this controversy over the succession to Matilda Walden's estate arose. Such declarations are not admissible to prove pedigree or relationship, except when they are made by the members of the family as natural or spontaneous declarations on the subject and before any dispute has arisen over the question or any claim has been made to the establishment of which the declarations would be material. Estate of Hartman, 157 Cal. 213, 107 Pac. 105, 36 L. R. A. (N. S.) 530, 21 Ann. Cas.

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1302; 2 Wigmore on Ev. § 1483. Here it ap- | to be presumed that there was no contest pears that the purpose of the conversations over the question upon the settlement and was to obtain evidence concerning the heir- distribution of the estate of John Wilson, since ship to this estate, and hence they were with- the appellants have not presented any record out the sanction which the law requires in disclosing such contest. order to make them admissible.

[4] The record shows that a statement signed by Matilda Walden was "offered in evidence," and it then proceeds as follows: "The paper was produced from the court files in the estate of John Wilson, which estate was distributed to decedent as the only heir of John Wilson in 1898, and the decree of distribution was offered in evidence." It appears to be assumed that this is a sufficient statement that the decree was made by a court of competent jurisdiction in a proceeding regularly and duly had before it. It does not appear that the decree was actually received in evidence, and counsel differ upon this point. Assuming that it was so received, appellants make the following as their sole argument thereon: "The decree of distribution in the estate of John Wilson is conclusive on the heirs of John Wilson, deceased, including Martha Monro. Quirk v. Rooney, 130 Cal. 508 [62 Pac. 825]." The case just cited declares the principle that a decree of distribution, duly made, is conclusive upon those who may thereafter claim the property as heirs of the person whose estate was thereby distributed. But it also recognizes

[5] We cannot say that the court below abused its discretion in denying the motion for a new trial so far as it was based on newly discovered evidence. All of the new evidence presented comes within the wellestablished rule that the trial court may, in its sound discretion, refuse a new trial upon this ground, where the new evidence is merely cumulative, or where it tends merely to impair the credibility of the evidence of the prevailing party. Chalmers v. Sheehy, 132 Cal. 462, 64 Pac. 709, 84 Am. St. Rep. 62; People v. Goldenson, 76 Cal. 352, 19 Pac. 161; Wood v. Moulton, 146 Cal. 322, 80 Pac. 92; Stoakes v. Munroe, 36 Cal. 388; People v. Weber, 149 Cal. 350, 86 Pac. 671. These comprise all the questions presented in the briefs.

The judgment and order are affirmed.

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In re PRAGER'S ESTATE. (Supreme Court of California. 1. WILLS (8 782*) - COMMUNITY ESTATE

ELECTION OF WIDOW.

-

The second paragraph of a will directed that all realty owned at testator's death, located outside a certain city, be distributed to persons named, and provided that, if any of them be dead at testator's death, then the share to which such person would be entitled should be distributed to his heirs; and the third paragraph provided that all the rest of testator's estate, including all realty owned in such city and all personal property, was given to his wife absolutely. The total value of testator's real estate was $630,321, and the real estate situated outside the city was valued at $179,928, all of this being community property; and there was other community property, largely within the city valued at $54,000. The seppersonalty, valued at $16,000, and two lots arate property consisted of land in the city appraised at $380,000. Held, that the widow was not required by the will to elect whether she should take her interest in the community property or take under the will, but could take both.

the rule that such a decree is not conclusive as to the facts on which such heirship depends when they arise collaterally in another action. That case was a second appeal; the previous case appearing as Lynch v. Rooney, 112 Cal. 279, 44 Pac. 565. In the case last cited it appeared that the court, in distributing the estate of one Bryan Lynch to Catherine Clark, had found and adjudged that she was the sister and sole heir of Bryan Lynch, in effect, adjudging that, as to that heirship, there were no other brothers or sisters, or descendants of any, living at the death of Lynch. Yet it was there averred and proved that a brother Patrick and the children of a sister Nancy had also survived Bryan, and that the children of Patrick were entitled to a part of the property by virtue of a trust declared therein by Catherine Clark's grantee. In the present case the right to inherit the estate of John Wilson is clearly not the same thing as the right to inherit the estate of Matilda Walden. The latter right could not have been adjudicated until after it accrued. When such an issue was presented for adjudication, it must necessarily have been determined upon the evidence then pre-nity property. sented. The fact of relationship, upon which it depends, may be the same as in the case of the estate of John Wilson; but the former adjudication as to John Wilson is not con- That a provision made for testator's wife clusive as to kinship upon the inquiry as to is very liberal would not justify the conclusion that it was intended to be in lieu of her inMatilda Walden, although it may have been terest in the community estate as survivor, so admissible as evidence on the subject. It is as to require her to elect; she only being ⚫For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 2018-2033; Dec. Dig. § 782.*] 2. WILLS (§ 486*)-PROPERTY DEVISED-PRE

SUMPTIONS.

It is presumed that a will was made with knowledge that testator's power of disposition did not extend to his widow's interest in the community property but only to his separate property and an undivided half of the commu

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1016-1022; Dec. Dig. § 486.*] 3. WILLS (§ 782*)-ELECTION BY WIFE.

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