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Causten v. Barnette, 49 Wash. 659, 96 Pac. / 3. CARRIERS 348(11)–CAUSE OF INJURY225; Claflin Co. V. Gross, 112 Fed. 386, 50

QUESTION FOR JURY. C. C. A. 300.

Whether the injury arose from the manner [2] Whether the parties were technically carlessness in standing

too near the edge of the

of operating electric car or from a passenger's partners or not, an accounting was necessary platform held a question for the jury. to determine their respective rights. Garr 4. CARRIERS O347(7) - PERSONAL INJURY v. Redman, 6 Cal. 574. Clearly plaintiff by

CONTRIBUTORY NEGLIGENCE-QUESTION FOR

JURY. reason of contributing his labor and skill in

In a passenger's' action for personal injury the common venture was, under the agree-when thrown from the front platform of an elecment, entitled to his share of the net profits tric car while rounding a curve, the question of of the business the conduct of which, being 5. CABBIERS 347 (7)

contributory negligence held for the jury.

INJURY TO PASSENterminated by defendant, could only be as GÈR-CONTRIBUTOBY NEGLIGENCE. certained upon an examination and settle Independently of statute, it is not negliment of the accounts of the business, pre- gence per se for a passenger to stand on the cisely the same as though a partnership had front platform of a moving electric car. existed. Since the facts alleged and found 6. CARRIERS C348(5) - PERSONAL INJURY

REFUSAL OF INSTRUCTION. entitled the plaintiff to an accounting for the In an action for personal injury when purpose of determining what were the net thrown from the front platform of an electric profits of the venture, the fact that the agree- tion that if the passenger voluntarily and for

car while rounding a curve, a requested instrucment and transactions had between the par- his own convenience was riding on the platform, ties did not, as found by the court, constitute exposed to greater danger than if he had remaina copartnership in the strict sense, is wholly ed in the car, and he could have entered the car

a reasonable time before the accident, he assumimmaterial. In no event, even were errored responsibility for the increased risks, and, conceded, could defendant be prejudiced by if injured in consequence thereof, could not rereason of the ruling.

cover, was properly refused, as it charged the [3] As a result of the accounting had and passenger with the assumption of all increased taken, the court also found that defendant the motorman in the operation of the car.

risks, including any misconduct on the part of was indebted to plaintiff in the sum of $343.- 7. CARRIERS 348(5) - PERSONAL INJURY 55 for his share of the net profits of the busi REFUSAL OF INSTRUCTION. ness during the time it was conducted, and In such case a requested instruction that, if that plaintiff was damaged in the sum of plaintiff was thrown from the

car by any sway

ing motion or sudden jerk ordinarily incident $250 by reason of defendant's breach of the to the running of cars, under the circumstances agreement in wrongfully taking possession of of the case verdict should be for defendant was and removing from plaintiff's shop the stock properly refused, as it made him assume the risk

of such jerk, even if it arose from the motorof goods and manufactured fur garments on man's reckless operation of the car with knowlSeptember 1, 1913, thus preventing a contin- edge of plaintiff's presence on the platform. uance of the business to January 1st in ac-8. CARRIERS OW348(13) — PERSONAL INJURYcordance with the agreement. These findings

INSTRUCTION CONTRIBUTORY NEGLIGENCE.

An instruction that as matter of law, notare based upon conflicting evi ence as to withstanding

the passenger's

place of added perwhich the determination of the trial court | il on the platform, a legal presumption of neglimust be deemed conclusive.

gence arose against the carrier from the fact The order denying defendant's motion for of his injury was erroneous.

9. COURTS 90 (1) · FORMER DECISIONS a new trial is affirmed.

SCOPE GENERAL APPROVAL OF INSTRUCWe concur: MELVIN, J.; WILBUR, J.

The Supreme Court's general approval of the instructions is not a specific approval of an

instruction not criticized. (178 Cal. 171) GRAFT V. UNITED RAILROADS OF SAN

In Bank. Appeal from Superior Court, FRANCISCO. (8. F. 7338.)

City and County of San Francisco; Geo. A. (Supreme Court of California. April 16, 1918.) Sturtevant, Judge. 1. CARRIERS 348(13) - PASSENGERS - PER

Action by Warren Graff against the UnitSONAL INJURY - MISLEADING INSTRUCTION. ed Railroads of San Francisco. Judgment

In an action for injury when thrown from for plaintiff, accepted by plaintiff as reducthe front platform of an electric car to the ed, motion for a new trial denied, and ground, an instruction that where an injured passenger is riding in an unusual position, from the order and judgment defendant which increases his danger, the doctrine of res appeals. Reversed. ipsa loquitur does not apply, and no presumption arises that the resulting injury was due to the

Wm. M. Abbott and Wm. M. Cannon, both carrier's negligence, was misleading, in view of of San Francisco (Kingsly Cannon, of San possible proof that the injury arose from the Francisco, of counsel), for appellant. Suloperation of the car.

livan & Sullivan and Theo. J. Roche, of 2. CARRIERS 316(1) - PERSONAL INJURY BURDEN OF PROOF.

San Francisco, for respondent. Where personal injury to a passenger arises from carrier's operation of car, there is a prima SHAW, J. [1, 2] In the decision of this facie case of negligence, and burden is on the

TIONS.

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case in department the judgment was recarrier to show that the thing done by it causing the injury was not the result of its negli- versed because of the instruction which apgence.

pears in the latter part of the opinion upon

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

the subject of the presumption arising from, utory negligence beyond doubt, and that the an injury to a passenger while on board a court erred in refusing to instruct the jury to railroad car. In commenting upon this in- tiff, it appears, was familiar with the tracks

return its verdict in favor of defendant. Plainstruction the opinion contained the follow- over which he was traveling and with the curves ing:

thereon. He was on the front platform of the "The rule of law is that where an injured pass the car which permitted the ingress and egress

car near an open door on the right-hand side of senger is riding in an unusual position, which of passengers. "He

was in conversation with a position increases his danger, the doctrine of friend. He turned his head slightly to speak to res ipsa loquitur does not apply, and no pred this friend, when the car took the curve and sumption arises that resulting injury was due hurled him through the open door. to the negligence of the carrier."

He was

standing next to another door opening into the The rehearing was granted because it body of the car, and so far as he remembered, was considered that this statement might though his memory was not good, he was not be misleading. The concluding sentence of leaning against it nor holding to anything. He the opinion is also misleading. It is obvious on the cars of that particular line, and was

was accustomed to ride on electric cars and that the proof may show that the passen- standing, balancing himself. The evidence was ger was riding in an unusual position which conflicting as to the speed with which the car increased his danger, and may also show jury believed that it was at an undue speed,

took the curve. It will be assumed that the that the injury arose from something done and that the motorman was guilty of negligence, by the carrier in operating the car. In such a | in view of the fact that to his knowledge pascase a prima facie case of negligence is made, sengers were standing on the front platform. and the burden rests upon the carrier to plaintiff was, or apparently was, holding on to

Though witnesses for the plaintiff testified that show that the thing done by it which caused the iron gate or a handrail of the car, and that the injury was not the result of its negli- he also was leaning with his back against the gence. The true rule on the subject is stated door, it is said that by virtue of plaintiff's own

testimony this evidence is not sufficient to raise in the Steele Case, cited in the opinion, and in a conflict. We think, however, that it is, and Wyatt v. Pacific, etc., Co., 156 Cal. 174, 103 that we are bound to assume that the jury eonPac. 892.

clyded that the plaintiff was doing both of these [3] It is true that this instruction has been common experience that a man who has receiv

things, and this is so because it is a part of approved in a number of cases decided by ed so tremendous a shock as that which this this court, but it will be found that in each plaintiff sustained frequently comes through his case there was no dispute over the proposi- injuries with no clear memory of the accident

itself or the events that occurred immediately tion that the injury arose from the manner antecedent thereto. This truth is one of comof operating the car. When that is the case, mon knowledge, and is universally recognized the instruction, although it does not fully in this regard is, 'At the present time, since this

in the medical books. Plaintiff's own testimony state the doctrine, is correct when applied accident, my memory is pretty bad. to such a case, and the court would not re "It is said that it was plaintiff's duty, even if verse the judgment because of the failure obliged to stand temporarily on the front platto give the modifications which might be form, to enter the body of the car and thus

make his position safe when opportunity prenecessary if the evidence were of a different sented itself so to do; that such opportunity did character. In the present case there was a present itself, and plaintiff was guilty of condispute over the question whether the in- tributory negligence in not making use of the Jury arose from the manner of operating tion of the car, however, the evidence is in dis

opportunity. Upon the question of the condithe car, or from the plaintiff's carelessness pute; that of the plaintiff going to show that in standing too near the side thereof, and in the body of the car every seat was occupied, the question as to which was the cause of six or seven more were standing on the platform

that passengers were crowded in the aisle and the injury should have been left to the jury where he was. Under these circumstances instead of being taken from them by the ab- again, the determination of these disputed facts

is for the jury. With this explanation of the concluding ing that the mere presence of a passenger upon sentence, and the passage above quoted and an electric car on the platform when there is the authorities cited in support of it elimi- space for him within the body of the car is connated, we adhere to the opinion rendered clusive upon the contributory negligence of the

plaintiff, and to this effect it is contended are in department. It is as follows:

Hodler v. Public Service Ry. Co., 85 N. J. “Plaintiff charged that while a passenger up- Law, 346, 88 Atl. 1071, and Ward v. Internaon an electric car of the defendant and riding tional R. Co., 206 N. Y, 83, 99 N. E. 262, Ann. on the front platform thereof the motorman pro- Cas. 1914A, 1170, but whatever may be the rule pelled the car around a curve at a greatly exces- in these jurisdictions, such is not the rule in sive speed, causing him, the plaintiff, to be this state, nor in the majority of states, nor yet thrown violently from the car to the ground, do we conceive it to be the rule independently the car passing over both of his legs, necessi- of statute in the state of New York, for it is tæting amputation of both. Defendant answer- said in Nolan v. Brooklyn City, etc., Ry., 87 ed by denial, and affirmatively charged that the N. Y. 63, 41 Am, Rep. 345: "The rule is settled injuries sustained by plaintiff were due to his that independent of the mandate of the statute own negligence. The jury rendered a verdict * it is not, even in the case of steam for plaintiff. On defendant's motion for a new cars, negligence per se for a passenger to stand trial the court reduced the verdict, and plain- on the front platform of a moving car.' Kelly tiff accepted the reduction. The motion for a v. Santa Barbara R. R. Co., 171 Cal. 423, 153 new trial was then denied, and defendant ap- Pac. 903, Ann. Cas. 19170, 798; Pruitt v. peals from the judgment and order so doing. Santa Barbara, etc., R. R. Co., 161 Cal. 29,

[4] “Defendant's first contention is that 118 Pac. 223, 36 L. R. A. (N. S.) 331 ; Holplaintiff's own evidence establishes his contrib- I loway y. Pasadena, etc., Ry. Co., 130 Cal. 177,

62 Pac. 478; Babcock v. L. A. Traction Co., , Pac. 712, is relied on by respondent as authori128 Cal, 173, 60 Pac. 780; Seller v. Market St. ty for the giving of this instruction under these Ry. Co., 139 Cal. 268, 72 Pac. 1006; Lynn v. circumstances. It is true that this instruction Southern Pac. Co., 103 Cal. 7, 36 Pac. 1018, was there given. It is also true that this court 24 L. R. A. 710; 6 Cyc. p. 653; 3 Thompson, declared that the jury was ably and painstakNegligence, g 2954.

ingly instructed, but no objection was made to (6, 7) The defendant proffered and the court the giving of this instruction, and under famil. refused to give the following instructions: iar principles the court's general approval of

" "(1) If the plaintiff voluntarily and for his the instructions was not a specific approval of own convenience was riding on the platform of an instruction not criticized. The injury workthe car at the time and place in question, and ed by this instruction is most apparent. It diwas thus exposed to dangers which he would not rected the jury in its deliberations by telling bave encountered had be entered and remained them that as matter of law, notwithstanding within the car, and that he could have entered the place of added peril which the plaintiff had the car a reasonable time before the accident voluntarily assumed, a legal presumption of neg. and remained therein until the time of the acci- ligence arose against the defendant by virtue of dent, I instruct you that the plaintiff assumed the fact that he sustained injury." responsibility for the increased risks, if any,

The judgment and order appealed from which he thus voluntarily exposed himself to, and, if he was injured solely in consequence of are reversed. such increased risk, I instruct you that he cannot recover, and your verdict must be in favor We concur: ANGELLOTTI, O. J.; SLOSS, of the defendant.

J.; WILBUR, J.; MELVIN, J.; RICHARDS, ***(2) If you find that the plaintiff was thrown Judge pro tem. from the car either by any swaying motion or any sudden jerk, and that such motion or jerk is ordinarily incident to the running of cars. un

(178 Cal. 166) der the circumstances of this case, you are in GUMPEL V. SAN DIEGO ELECTRIO RY. structed that your verdict must be in favor of the defendant.'

CO. (L. A. 4136.) "It was justified in so doing, for both of these (Supreme Court of California. April 16, instructions contain a declaration not warrant

1918.) ed in law. By the first the jury would have been 1. CARRIERS 314(1) PERSONAL INJURYtold that the plaintiff 'assumed responsibility

SUFFICIENCY OF COMPLAINT. for the increased risks' occasioned by his pres- An amended complaint, alleging that plainence on the platform, and 'if he was injured tiff was a passenger for hire on defendant's solely in consequence of such increased risk,' street car; that while it was rounding a curve, he could not recover. Something of what has at a speed of 20 miles and more per hour, he heretofore been said points out the error in law

was thrown from the car, and alleging neglihere declared. Specifically the vice of the instruction is that it charges the plaintiff with gence in respect to excessive speed and failure the assumption of all increased risks, whereas, as the car ran on to the curve it gave a sudden

to provide straps for passengers; and that the only increased risks which he assumed were and violent jerk by which he was thrown from those occasioned by his position and arising the car and injured-stated a cause of action. from the due operation of the car by the motorman who had knowledge of that position. He 2. CARRIERS 320(19)—PERSONAL INJURYdid not assume the increased risks of any mis- CONTRIBUTORY NEGLIGENCE-QUESTION FOR conduct upon the part of the motorman in such

JURY. operation. The specific legal flaw of the second

In such case held, on the evidence, that deinstruction justifying its refusal is that it fendant's negligence was for the jury. charges the jury that plaintiff assumed the re- 3. CARRIERS Ow347(7) — CONTRIBUTORY NEGsponsibility of injury from any 'sudden jerk or. LIGENCE-QUESTION FOR JURY, dinarily incident to the running of cars under In such case plaintiff's contributory neglithe circumstances of this case,' and here again gence in not guarding himself from being is the implication, if not the statement, that thrown from car held, on the evidence, a questhe plaintiff assumed the risk of such a jerk tion for the jury. even if it arose from the reckless operation of 4. DAMAGES 216(8) PERSONAL INJURY-FU. the car by the motorman who had knowledge of TURE SUFFERING AND Loss OF EARNING bis presence on the platform. Making reference POWER. to the discussion of this question in Kelly v. San- In such case an instruction to consider the ta Barbara R. R. Co., 171 Cal. 415, 153 Pac.extent of plaintiff's injury, the pain and suf903, Ann. Cas. 1917, c. 67, nothing further need fering he had undergone by reason of the in: here be added.

jury resulting from defendant's negligenco, and [8, 9] "Finally, the court instructed the jury any future pain and suffering traceable to and in the following language: 'Contributory neg- resulting from the injury and to consider the ligence on the part of a passenger cannot be loss of time and earning power resulting from presumed from the mere fact of injury, but must the injury, and any future loss resulting from be proved. On the other hand, the proof of an the injury, correctly stated the elements of injury to a passenger on the car of a common damages and those permissible under Civ. Code, carrier casts upon the common carrier the bur

8 3283. den of proving that the injury was occasioned 8. TRIAL em 260(1) - REFUSAL OF INSTRUCby inevitable casualty or some other cause which human care and foresight could not pre

TIONS-GIVEN INSTRUCTIONS, vent, or by the contributory negligence of the where the subject matter was sufficiently cover

The refusal of instructions is not error, passenger, unless the proof on the part of the ed by the instructions given. passenger tends to show that the injury was occasioned by the contributory negligence of the passenger, or by inevitable casualty, or some

Department 1. Appeal from Superior other cause, which human care and foresight Court, San Diego County; C. N. Andrews, could not prevent. A consideration of Steele v. Judge. Pacific Elec. Ry. Co., 168 Cal, 375, 143 Pac.

Action by Arnold Gumpel against the San 718, will establish the inapplicability and the injury of this instruction,

Froeming Diego Electric Railway Company. From a v. Stockton Elec. R. R. Co., 171 Cal. 401, 153 judgment for plaintiff and from an order de

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

was

nying its motion for a new trial, defendant, hill above the curve going very fast, about appeals. Judgment and order affirmed. 20 miles an hour. He had a package under

Read G. Dilworth, of Coronado, and litus his right arm, and was trying to get hold of & Davin, of San Diego, for appellant. James the piece that runs down from the roof to E. O'Keefe and C. H. Van Winkle, both of the floor. The car made a terrible jerk at San Diego, for respondent.

the curve and threw him off. The plaintiff

also testified that he had been accustomed to RICHARDS, Judge pro tem. This is an route, and knew that the hill and curve were

ride on this car along this portion of its appeal from a judgment in plaintiff's favor there. There was other testimony supportand from an order denying the defendant's motion for a new trial, in an action for dam- ing plaintiff, to the effect that the car was ages for personal injuries sustained by the going at a more rapid rate of speed than

usual as it approached the curve. There plaintiff through being thrown from a street car of the defendant while it was rounding was also evidence on the part of the defend

ant, contradicting that of the plaintiff as to a curve at the corner of First and Spruce the rate of speed of the car and as to a Jerk streets in the city of San Diego.

at the curve, which it is not necessary to re[1] The appellant assails the plaintiff's cite in detail, for it is evident that there amended complaint as not stating a cause of action. The plaintiff in his said complaint, of the plaintiff's case to make it a proper

was sufficient evidence presented in support after averring that he was a passenger for case for the jury, upon the authority of Babhire upon the defendant's car, goes on to al cock v. Los Angeles, etc., Co., 128 Cal. 173, lege that the said car "proceeded in a north: 60 Pac. 780, and Graff v. United Railroads, erly direction on its said street car line, and 172 Pac. 603. at that certain point on the corner of First

[3] It is next contended by the appellant and Spruce streets, while said car

that the plaintiff was guilty of contributory rounding said curve, and while the same was negligence as a matter of law, in not taking traveling at a rate of speed of 20 miles per hour or thereabouts, plaintiff was thrown the danger of falling or being thrown from

proper precautions to guard himself from from said car and injured as hereinafter set the car as it approached a curve, the existforth." The plaintiff then proceeds to al

ence of which he knew, and at a rate of lege: “That the said defendant company was pegli- cites numerous cases from this and other ju

speed of which he was aware. Appellant gent in the premises, in this : * (b) In rounding said curve at an excessive rate of risdictions which it claims supports this pospeed, to wit, 20 miles per hour or thereabouts; sition. But upon this point also the most re(C) in its failure to provide straps or other cent and approved decisions of this court facilities for passengers standing to hold on to.

* That by reason of the negligence afore-are to the effect that under like circumstancsaid. plaintiff was thrown from said car, as es to those disclosed in the case at bar the herein before alleged, and struck the ground with question of the plaintiff's contributory neg. great force, and by reason thereof, and by rea; ligence is one which should properly be subson of said' negligence, received a severe injury," mitted to the jury. The most recent utteretc. At the trial the plaintiff further amended ance of this court upon the subject, citing

and sustaining earlier cases, is that of Graff his complaint by alleging that as the car

v. United Railroads, supra. ran onto the curve "it gave a sudden and vio

[4] The appellant further urges that the lent jerk, by reason of which and at which time plaintiff was thrown from said car and court erred in giving the following instruc

tions: injured." We are of the opinion that the complaint as thus amended sufficiently stat- account, if you find that he, by reason of the

"In fixing the compensation you take into ed a cause of action.

negligence of the defendant, had been injured, [2] The appellant next contends that the then you take into account the extent of his evidence is insufficient to justify the verdict, injurics, and whatever pain and suffering, ei

ther physical or mental, he has undergone by in that it fails to show that the accident was

reason of that injury, resulting from the neg. the result of any negligence on the part of ligence of the defendant, and what pain and defendant company. The plaintiff himself suffering he will yet undergo which can be tractestified in relation to the accident that he ed, and is the result of that injury.

"You also take into account his loss of time, had boarded defendant's car at the corner of that is, his inability to earn money, which B and Third streets at some time after 11 has resulted from the injury which he received o'clock on the night of his injury. It had by the pegligence of the defendant, whatever

has been raining. The car was very crowded. loss of timc, loss of ability to earn money,

resulted up to this time, and whatever loss Persons were standing on the front and rear of time or loss of ability to earn money will platforms and on the steps of the car. He result in the future, and which can be traced gained standing room on the rear platform, by you to the result of this injury, and due to

the negligence of the defendant." and, as some of the passengers got off, was able to step over to the door of the car, but It is the appellant's contention that these could not get inside because of its crowded instructions violate the rule laid down in the condition. He was standing leaning against case of Melone v. Sierra Railway Co., 151

jury to speculate upon the future pain and Department 1. Appeal from Superior suffering of the plaintiff, and also as to his Court, San Diego County; C. N. Andrews, loss of time and ability to earn money, and Judge. do not confine these elements of damage to Action by Edgar B. Levi, as receiver, that detriment which would be certain to against James A. Chesley. From a judgment result from the plaintiff's injury. The differ- for plaintiff, defendant appeals. Judgment ence between the instructions which were the modified, and trial court directed to modify subject of the court's criticism in the Melone its finding and judgment in accordance with Case and those above quoted is clear upon a the viewe expressed. comparison of the two sets of instructions. In the Melone Case the instructions as to

Hoff & Chatterson, of San Diego, for appelthe plaintiff's future injuries were phrased lant. Riley & Heskett, of San Diego, for re in the subjunctive, and it was in this that

spondent. their vice consisted; while in the case at bar the court instructed the jury that, in es- RICHARDS, Judge pro tem. This is an aptimating the compensation which the plain-peal by the plaintiff in the action to recover tiff could recover as a result of his injuries, possession of personal property in which it could take into account "what pain and judgment went for the defendant, and a mo suffering he will get undergo, which can be tion for a new trial was denied. The facts of traced and is the result of that injury''; and, the case were these: One Paul E. Lavoice, as to the plaintiff's future loss of time and who was a tenant upon the ranch of the deof ability to earn money, the court confined tendant Chesley, purchased from one Adolph the jury to that "which can be traced by you Levi 30 cows, giving a mortgage to secure the to the result of this injury and due to the purchase price of said cows upon them, and negligence of the defendant." These are, in also upon some 43 other head of cows upon effect, instructions to the jury that the plain said ranch, and of which he was as such tentiff was to be limited in his right to recovery ant of Chesley in possession, but which in as to these elements of damage to such dam- fact belonged to the defendant. Not long ages as it was reasonably certain he would after this transaction the defendant Chesley suffer in the future, and they are thus with discovered that his tenant Lavoice was disin the rule declared to be the correct rule for posing of the cattle upon his ranch, and he the admeasurement of such elements of dam- accordingly ousted him from it, and obtained age in the Melone Case, and to such as are his conviction and incarceration in the state permissible under section 3283 of the Civil prison. Subsequently, upon foreclosure of Code.

the mortgage, the plaintiff, Edgar B. Levi, [5] The appellant finally contends that the was appointed receiver, and as such comcourt erred in its refusal to give certain in- menced this action against the defendant, structions requested by the defendant and Chesley, for the alleged conversion of 21 of the dealing with particular phases of the evi- 30 cows for the purchase price of which the dence in the case. It is not necessary to set said mortgage was given. The defendant deforth in detail these instructions nor refer nied having possession of or having converted to the argument or authorities cited by the said cattle, except that he admitted being appellant in their support, for the reason in possession of one of said cows which he that the court, after a careful examination had offered to deliver to the plaintiff prior to of the whole body of instructions given by the institution of the action and still stood the trial court, is of the opinion that they ready to deliver. upon the trial of the cause sufficiently cover the points emphasized by the evidence was conflicting as to the identity the defendant in its suggested instructions, of the cows, for the conversion of which the and that, upon the whole, the Jury were ful- plaintiff sought to recover, with the exceply and fairly Instructed as to the rules of tion of the one cow which the defendant conlaw by which they were to be governed in ceded and the court awarded to the plainarriving at their verdict; and hence that tiff, and with the exception also of one other there was no error committed in refusing to cow which the plaintiff, we think, sufficiently give the instructions requested by the de- showed to have been one of those included in ferdant.

the mortgage. Judgment and order affirmed.

[1, 2] The only points which the appellant We concur: SLOSS, J.; SHAW, J. presents upon appeal relate to the sufficiency

of the evidence to sustain the findings of the

court. Under the well-established rule, this (178 Oal. 145)

court will not disturb the findings of the trial LEVI v. CHESLEY. (L: A. 4178.)

court when the evidence is in substantial (Supreme Court of California. April 15, 1918.) conflict. This disposes of every question in APPEAL AND ERROR 1011 (1)-REVIEW the case except as to the right of plaintiff to FINDINGS ON CONFLICTING EVIDENCE.

The Supreme Court will not disturb the the possession or value of the one red Dur. findings of the trial court when the evidence is ham cow, which, we think, the proofs suffiin substantial conflict.

ciently showed plaintiff to be also entitled. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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