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caused by storm, flood, fire, inevitable accident, | improvements as he might require, also make or act of a stranger. * * There are dicta all necessary repairs and to keep the same in and perhaps one decision to the effect that the tenant is not bound to rebuild in case of such de- tenantable order at his own cost." There, struction by the act of God or of destruction by as here, the lessee abandoned the premises, the public enemy. Such a view can be support- claiming that the same had become untenanted only on the theory that the covenant to re-able because of the settling of the rear wall pair, in view of the circumstances under which it was made, is not in the particular case to be construed as extending to injuries so caused, and the authorities show that such a limited construction is not ordinarily placed upon the cove nant. The tenant is liable, under the covenant to repair, in case the premises are injured by third persons, or even if the premises fall on account of defects existing therein at the time of the lease."

To the same effect is Taylor on Landlord and Tenant (9th Ed.) § 364.

Our own Supreme Court, stating the effect of a general covenant to repair in the case of Polack v. Pioche, 35 Cal. 416, 422, 95 Am. Dec. 115, used the following language:

"If the tenant desires to relieve himself from [damages] resulting from any of the causes above enumerated, or from any other cause whatever, he must take care to except them from the operation of his covenant."

In a Texas case in many respects like the one at bar the lease contained the following

covenant:

"It is expressly agreed and understood that the said Martinez [the tenant] shall himself bear all the expenses of repairing or improving the premises hereby leased him during his occupancy of same."

owing to the original defective construction of the foundation. The court, sustaining the right of the landlord to recover the money expended by him in making certain repairs, held that:

"As the covenant was absolute to make all necessary repairs and keep the premises in tenantable order, and no fraud on the part of the landlord having been shown, defendant was bound to make the repairs irrespective of the cause of the defect, and defendant having abandoned the premises without making the repairs the landlord had a right to make them and recover the expenses." Lockrow v. Horgan, 58 N. Y. 635.

[2] Section 1932 of the Civil Code has no application to the facts of this case. That section provides:

*

ing before the end of the term agreed upon "The hirer of a thing may terminate the hirwhen the greater part of the thing hired, or that part which was and which the latter had at the time of the hiring reason to believe was the material inducement to the hirer to enter into the contract, perishes from any other cause than the want of ordinary care of the hirer."

That section is not applicable to a case where the lease itself expressly provides who shall make the repairs; and even if it could he held that this section does apply, the evidence wholly fails to show that the greater part of the thing hired, or that part which was the material inducement to the hirer, was destroyed. We think, therefore, that from no aspect of the case was the tenant relieved from the obligation to pay the agreed rent.

There also the only exception to the lessee's obligation was a covenant on the part of the lessor to make needed repairs to the roof. The building had been condemned by the municipal authorities of Dallas and ordered demolished. Subsequently a resolution was passed by the city council ordering the building to be repaired under the direction of the city engineer. The tenant refused to make the repairs, and they were made at the expense of the landlord, who brought suit to recover the amount expended by him. The court, holding that the landlord was entitled | ARDS, J. to recover the cost of the repairs, used the following language:

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"The contract shows that defendant obligated himself to bear all expenses of repairing or improving the property during his occupancy. This would obligate him to bear the expenses of everything falling within the meaning of repairs or improvements necessary during the term, except as by the other provisions of the contract he may have been released from such liability. *

The judgment is reversed.

We concur:

LENNON, P. J.; RICH

(33 Cal. App. 23) PEOPLE v. GILBRETH. (Cr. 527.) (District Court of Appeal, Second District, California. Feb. 14, 1917.) CRIMINAL LAW 913(1)-TIME FOR ENTRY OF JUDGMENT-RIGHT TO NEW TRIAL-STATUTE.

The work which Thomp-viding that after a verdict of guilty the court As the provisions of Pen. Code, § 1191, proson caused to be done was for the purpose of restoring the house to a sound state or a safe con- 2 nor less than 5 days after verdict, and that must appoint a time for judgment not more than dition, and this was the repairing, the expense the court may extend the time not more than 20 of which the defendant promised to pay." Mardays, where the question of probation is continez v. Thompson, 80 Tex. 568, 16 S. W. 334. cerned, are mandatory, in view of section 1202, requiring judgment to be pronounced on day appointed or to which it is continued under section 1191, and if not rendered within the time fixed the defendant shall be entitled to a new trial, in a prosecution for embezzlement where, after verdict of guilty, plaintiff made oral application for release on probation, and the time for hearing this application and for pronouncing judgment was extended several times, until the court finally denied the application for probation, and en

To the same effect is Markham v. David Stevenson, etc., Co., 104 App. Div. 420, 93 N. Y. Supp. 684.

In the case in New York the obligation of the tenant was held to extend even to the repair of dilapidations caused by defects in the construction of the building. In that case the lessee covenanted "to make such

tered judgment 33 days after the date of conviction, defendant was entitled to a new trial.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2137-2139, 2141, 2142, 2145.]

Appeal from Superior Court, Los Angeles County; Gavin W. Craig, Judge.

George W. Gilbreth was convicted of embezzlement, and his motion for a new trial denied, and he appeals. Judgment and order reversed.

A. A. Sturges and Waldo, Root & Dysert, all of Los Angeles (G. E. Waldo, of Los Angeles, of counsel), for appellant. U. S. Webb, Atty. Gen., and Robert M. Clarke, Deputy Atty. Gen., for the People.

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determined

Where court instructed jury in action for servant's injury that expenses of care and nurs ing "are subjects of direct proof and are to be on the evidence," it will be assumed that the jury followed such instructions, and included no sum for any matter not proved.

JAMES, J. The defendant, by verdict of the jury returned on the 14th day of September, 1916, was found guilty of the crime of embezzlement, a felony. He made oral application for release on probation, and the court, without request or consent of the defendant, fixed the time for hearing of this application and for pronouncing judgment at September 28, 1916. On September 28th, at the request of defendant, time was extended to October 5th. Another extension was made from October 5th to October 10th, at the request of defendant. On October 10th, however, without the request of defendant, time was extended to October 17th, which was 33 days after the date of conviction. The court at the latter time denied the appli-County; Curtis D. Wilbur, Judge. cation for probation, and the defendant then made his motion for a new trial, the principal ground being that, under the provisions of sections 1191 and 1202 of the Penal Code, the court had no jurisdiction to pronounce judgment. Sentence being pronounced, this appeal was taken from the judgment and from the order denying the application for a new trial.

[Ed. Note. For other cases, see Appeal and
Error, Cent. Dig. § 3757.]
160-SERVANT'S INJURY-
3. DAMAGES
PLEADING AND PROOF-RECOVERY FOR CARE.
Complaint alleging that plaintiff "expended
much for medicines and treatment and employ-
ment of physicians," in the absence of demurrer,
was sufficient to justify proof of exact amount
expended for care and nursing.

Cent. Dig. §§ 439, 445, 448.]
[Ed. Note.-For other cases, see Damages,

Appeal from Superior Court, Los Angeles

Action by M. P. Abalas against the Consolidated Construction Company. Defendant appeals from judgment for plaintiff, and from order denying new trial. Affirmed.

Jones & Weller, E. T. Sherer, and Emmet H. Wilson, all of Los Angeles, for appellant. Sam B. Dannis and Walter J. Horgan, both of Los Angeles, for respondent.

JAMES, J. Appeal from a judgment in favor of the plaintiff and from an order denying to defendant a new trial.

The requirement of the provisions of section 1191 of the Penal Code, which limit the time for the pronouncing of judgment after conviction, has been before this court and the [1] The plaintiff suffered personal injuries District Court of Appeal for the First Dis- while at work for the defendant in digging a trict heretofore. These provisions have been trench for the laying of sewer pipe. He alconstrued to be mandatory in effect and de- leged in his complaint that he was employed signed to produce speedy determination of by the defendant and earning $2.25 per day criminal proceedings in the trial court. We as a common laborer at the time he suffered refer to the cases of People v. Winner, 160 his injuries, and that he was at work in the Pac. 689, and People v. Boling, 161 Pac. 1169. performance of his duty at the bottom of the The views of this court as declared in the trench, which was about 55 feet deep, when decision first mentioned are in harmony with defendant's foreman negligently caused brick those which find place in the opinion in the to be placed near the opening and immediateBoling Case, which was decided in the Firstly above where the plaintiff was at work; District. In the Boling Case there was a petition for rehearing in the Supreme Court, which petition was denied, thereby giving the adjudication final approval. On the authority of the cases cited, defendant, the pellant here, is entitled to a new trial. The judgment and order are reversed.

We concur: CONREY, P. J.; SHAW, J.

that one of the brick being dislodged fell and struck the plaintiff on the head. This allegation followed:

"That by reason of the negligence and careap-lessness of defendant as hereinbefore set out plaintiff was hurt in his health, strength and activity, and received a profound shock to his nervous system, and received a fracture of the skull, and plaintiff is informed and believes and upon such information and belief states that the

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

injury to his head is permanent, and that he amount expended or incurred on the several will never regain his former health, strength, accounts. However, assuming that there was and activity, and that plaintiff has lost much

time and expended much for medicines and no evidence sufficient to authorize any allowtreatment and employment of physicians." ance on account of nursing or medical chargThe prayer attached to the complaint ask-es, still, as has been stated, it must be assumed that the jury gave heed to the instruction of the court and included no allowance on any account not fully established by the evidence.

No other errors are pointed to as supporting the case for appellant.

ed for judgment in the sum of $20.000. The judgment as entered upon the verdict of the jury was for the sum of $2.000. No demurrer was made to the complaint. But two points are presented as ground for the contention that the judgment and order should be reversed, to wit: (1) That the complaint did not state facts sufficient to constitute a cause of action. (2) That the court erred in instructing the jury on the matter of the amount of damages which might be assessed. It is contended that as the specific amount of LYNCH v. PACIFIC ELECTRIC RY. CO. damages suffered is not alleged in the body

The judgment and order are affirmed. We concur: CONREY, P. J.; SHAW, J.

(Civ. 2211.)

(32 Cal. App. 689)

ifornia. Feb. 5, 1917.)

1. MASTER AND SERVANT 137(4)-INJURY TO RAILROAD EMPLOYÉ-NEGLIGENCE. Defendant electric railway company's failure to furnish sufficient power to move a train, causing a car to back onto an employé, does not establish negligence, especially where employés knew the condition of the power supply. Servant, Cent. Dig. §§ 269, 270, 274, 277, 278.]

of the complaint, no cause of action was stat- (District Court of Appeal, Second District, Caled which would entitle plaintiff to any recovery. As already noted, the complaint did contain an allegation describing in general terms the injuries suffered (and there was no special demurrer interposed), and the complaint concluded with a prayer for a specific amount of damages. It has been held that a plaintiff in such a case need not allege particularly the amount of damage he has suffered, and that a complaint which contains a statement of such amount in the prayer only sufficiently states a cause of action. Riser v. Walton, 78 Cal. 490, 21 Pac. 362; Tucker v. Cooper, 158 Pac. 181.

[2, 3] The court instructed the jury as to the measure of damages, and stated that the elements entering into damage were, first, "such sum as will compensate him for the expenses he has paid or incurred in caring for and nursing him during the period that he was disabled by the injury, not exceeding the amount alleged in the complaint." After enumerating other elements, such as the value of time and impaired power to earn money in the future and for pain suffered, the court advised the jury as follows:

"The first two of these elements are the subjects of direct proof, and are to be determined by the jury on the evidence they have before them."

It is the contention of appellant that it was neither pleaded nor proved that there had been any expense paid or incurred for care and nursing. We must assume that the jury included in their computation no sum for any matter which had not been proved before them; the court expressly told them that the first two elements defined were the subjects of proof and to be determined upon | the evidence before the jury. Had the defendant demurred specially to the complaint, plaintiff would have been required to particularize the amount expended for nursing; but in the absence of such a demurrer and under the authorities which are cited above, the complaint undoubtedly was sufficient to entitle plaintiff to introduce evidence to prove the

[Ed. Note.-For other cases, see Master and

2. APPEAL AND ERROR 973-DISCRETION OF LOWER COURT WITHDRAWING CASE FROM JURY.

An order, directing a verdict for defendant after the entire case has been presented, will not be reversed, unless the court abused its discretion.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3846.]

3. NEGLIGENCE 136(31)-INJURY TO RAILROAD EMPLOYÉ-DIRECTED VERDICT.

The trial court did not abuse its discretion

in directing a verdict for defendant electric railway company, where an employé stepped between two cars of a train for some unknown reason and shortage of electricity caused one portion to back against him, although St. 1911, p. 796, allowed recovery where employé's negligence was slight and employer's gross.

Appeal from Superior Court, Los Angeles County; Curtis D. Wilbur, Judge.

Action by Elizabeth Lynch, administratrix of William Edward Lynch, against the Pacific Electric Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

E. B. Drake, of Los Angeles, for appellant. Frank Karr, R. C. Gortner, and A. W. Ashburn, all of Los Angeles, for respondent.

CONREY, P..J. The plaintiff, as administratrix of the estate of her deceased husband, William Edward Lynch, prosecutes this action against the defendant to recover damages on account of the death of her husband, which she alleged was caused by negligence of the defendant employer of said Lynch. The charge is that, on the 29th day of April, 1913, "while the defendant was attempting to draw a gravel train of cars over its tracks on a steep upgrade, near Redondo Beach, Cal., the

defendant negligently failed to furnish suffi- | grade toward Clifton. After they started cient electricity, the motive power thereof, to from the gravel pit the train was stopped pull said train, so that while the two or three times on account of lack of said William Edward Lynch was in the act power. When it arrived at a point 100 feet, of passing between two cars of said train, more or less, from the top of the grade, the the front part of said train slipped back train stopped again and Lynch decided that against him and caught him between said it would be better to detach car No. 2, detwo cars, crushing him so that he immediate- liver car No. 1 on a siding at the top of the ly died therefrom." The complaint also al- grade, and go back later for car No. 2. leged negligent failure of the motorman to Lynch, while standing on top of car No. 2. put on brakes as a proximate cause of the set the hand brake and then climbed down accident. After the evidence had been re- and disconnected the air brake between cars ceived as offered by the respective parties, Nos. 1 and 2. Next he gave a signal, in the court, on motion of the defendant, in- response to which the motorman slackened structed the jury to find for the defendant. the pull on car No. 2 so that a coupling pin This the jury did, and judgment was render- could be drawn. This was accomplished by ed accordingly. From that judgment the Lynch by pulling a lever at the side of car plaintiff has appealed. No. 2. This he was able to do, and did do, At the commencement of the trial, counsel without going between the cars. The signal for plaintiff abandoned his claim of negli- was received by a man who stood by the side gence on the part of the motorman, and ad- of the motorman and who transmitted the mitted that at the time in question the mo- signal to the motorman, the latter not being torman did throw on the power as quickly in position where he could see Lynch's sig as he could, but that before he could put on nals. Lynch then signaled for the motorcar the power the car slipped back and caught and car No. 1 to move ahead, and this was Mr. Lynch between the two cars, whereby | done, car No. 2 remaining stationary on the he was killed. The case was tried upon the track. When the two cars had moved about charge that the defendant negligently failed three feet the power went off, and the moto furnish power to make it sufficiently safe torcar with its attached car No. 1 started for him to work. The circumstances were as back toward car No. 2. In the meantime, follows: The defendant was operating a line for some reason or impulse not explained, of electric cars from Los Angeles to and Lynch had moved into the space between the through Redondo and to a place called Clif- rails, immediately in front of car No. 2 and ton, a short distance south of Redondo. Its between the coupling apparatus of that car passenger cars did not run beyond Clifton. and car No. 1, and as the cars came together At a point a half mile or more beyond Clifton he was crushed between them. Hearing defendant had a gravel pit to which it had Lynch's cry of distress, the man opposite the extended a track on which a motor and cars motorman called to the motorman, who as were operated for the transportation of quickly as possible sent his cars forward, the gravel. This track ran on an upgrade from electric power having at that moment rethe gravel pit toward Clifton. Power was turned to the line. Lynch was thereby reobtained through a trolley wire running over leased, but he had received fatal injuries. the track down to the gravel pit, which trol- There is no direct evidence showing why the ley wire was continuous with the wire used power under which the train was moving was by the passenger cars running to Clifton, and lost during the brief interval in which this carried the same supply of power. The re- accident occurred. It does appear, however, sult was that sometimes, when cars were ac- that the supply of power available for the tually running on what was called the Clifton use of the gravel train varied on account of section, their consumption of power reduced the movements of the passenger cars; that the supply of power available for the gravel the men of the gravel train were in the cars, and there was not always sufficient | habit of timing their work according to their power to bring the gravel cars upgrade. A knowledge of the arriving and leaving time cluster of electric lights on the motor car of the gravel train was utilized by the operatives of the gravel train to show them whether at any given time there was or was not power available for their purposes. On the [1] The defendant by its answer denied day of the accident Lynch was the foreman that it had negligently failed to furnish sufin charge of the gravel train, and had under ficient electricity to pull the train. This was his direction the motorman and two other an admission that the amount of power was employés. The cars were started upgrade not entirely sufficient; the admission being toward Clifton in the form of a train the coupled with the denial that such failure was parts of which were in the following order: | negligent. The evidence showed that this The motorcar was at the north end (toward insufficiency was known to Lynch who, for Clifton); car No. 1 was attached to the motorcar, and car No. 2 was attached to car No. 1, and the train was being pulled up

of the passenger cars on the Clifton section; and that as to whether they had electricity off or on, they judged by the lights on the motor car. ·

that reason, had caused car No. 2 to be detached. Under all of these circumstances it cannot be that defendant was guilty of neg

ligence causing the injury and death of Lynch, unless it can be maintained that it was the defendant's duty to furnish a supply of power at all times sufficient to move the train, and that it owed this duty to its employés, notwithstanding that they had full information concerning the actual condition of the power supply. This would be a more extreme rule than is necessary to meet the requirement that the employer shall use reasonable care to provide its employés with safe appliances with which to do their work. We have not been referred to any decisions enforcing such extreme rule.

[2, 3] At the time of the accident to William Edward Lynch there was in force an act, approved April 8, 1911, commonly known as the Roseberry Act. Under section 1 thereof it was provided that in any action to recover damages for death resulting from personal injury sustained within this state by an employé while engaged in the line of his duty or the course of his employment as such, in which recovery is sought upon the ground of want of ordinary or reasonable care of the employer, "the fact that such employé may have been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employé." Stats. 1911, p. 796. In addition to its denial of any negligence on its part, the defendant pleaded contributory negligence of the deceased. Appellant contends that by reason of the above-mentioned statute this defense was not available to the respondent, and that it was solely for the jury to determine the amount or degree of negligence of the employer and employé, or of both, so that the terms of the statute might be applied to the facts thus found. Upon the facts of this case, which we have stated very fully, it probably was very difficult for the trial judge to avoid the conclusion that the gross negligence, comparatively speaking, shown by the evidence, was that of the deceased, rather than of the defendant. For reasons which we are about to state, the judge was authorized to take these facts into consideration in determining how he would instruct the jury, or what he would direct the jury to do.

It is true that, as claimed by appellant, usually in actions of this kind the question of negligence of the defendant should be determined by the jury, and that the court may not grant a nonsuit on the evidence introduced by the plaintiff if that evidence tends to establish the fact of negligence. But the court here directed a verdict for the defendant after the entire case had been presented. This being so, the situation is very much the same as where the jury has returned a verdict and the judge has set aside that verdict

as not sustained by the evidence. If the trial court has not abused its discretion in making such order, the order will not be reversed. So here, under like circumstances, the court's order directing a verdict for the defendant should be sustained. The condition of the evidence was such that the judge determined that he would not be justified in allowing the verdict to stand if it deprived the defendant of the defense of contributory negligence to which it seemed well entitled in this case, or he determined that there was not sufficient proof of negligence on the part of defendant. In acting upon this determination his discretion was properly exercised, upon either or both of the grounds above stated. "To withhold a case from the jury is no greater interference than to set aside their verdict." Bohn v. Pacific Electric Ry. Co., 5 Cal. App. 622, 91 Pac. 115, and cases there cited.

The judgment is affirmed.

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1. HIGHWAYS

186-COLLISION - FAILURE

TO STOP AND ASSIST-PROSECUTION-SUFFICIENCY OF EVIDENCE.

Evidence on prosecution under Pen. Code, § 367c, of driver of automobile for not stopping and rendering assistance to occupants of vehicle collided with by him, held sufficient to justify conviction as against contention of defendant that he did not, at the time, know of the collision.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 476, 477.] 2. WITNESSES -SCOPE.

274(2)-CROSS-EXAMINATION

Asking witnesses who had testified to the reputation for kindness and gentleness of defendant, as bearing on the likelihood that his failure to stop and assist occupants of a motorcycle, struck by his auto, was with knowledge of the accident, whether they had heard that he had been arrested for picking chickens alive, and at another place had run down a boy or man, and had a direct bearing on the issue, and in the had been arrested for unlawfully killing an elk, absence of a showing of bad faith, was within the proper bounds of cross-examination. [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 966.]

3. CRIMINAL LAW

1036(2), 11701⁄2(5)—APPEAL-HARMLESS ERROR.

making and permitting inquiry of character witPrejudicial error cannot be predicated on the nesses for defendant, charged with not stopping to assist occupants of a vehicle with which his auto had collided, as to whether they knew of his arrests and pleas of guilty and fines for unlawful speeding on other occasions; in most cases no objection or assignment of misconduct being made to the questions; most of the witnesses stating that they had never heard thereof; no request for admonition or instruction to disregard the evidence being made; and the good

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