"It further appearing to the board that it is to the interest of the state and to the settlers holding water contracts with said Big Lost River Land & Irrigation Company, Limited, the rights of which latter it is the purpose to secure by the terms of such altered and amended contract, that the request of said George Speer should be granted." into between Speer and the state was a construction contract for the construction of the irrigation project only, and that the bond given by the Title Guaranty & Surety Company was to secure the performance of this conS.struction contract. To hold that covenants tion works are secured by the bond upon other than for the completion of the irrigawhich this action is sought to be maintained, and to allow a recovery thereon, would result in reducing the bond below the 5 per cent. of the estimated cost of the construction, and thereby defeat the purpose for which it was given. But this particular portion of the contract is explained and made entirely clear by the clause immediately following it, namely: "To the end that the said works may be completed as originally proposed, and that the rights of the settlers upon the lands included in said project may be secured." It was for the fulfillment of these covenants that the respondent furnished the bond sued upon here. A careful consideration of the provisions of this contract leads us to conclude that the completion of the irrigation works was the dominant purpose in the minds of the parties to the contract. The interests of the state and the settlers generally had been thoroughly protected in the selection of lands for reclamation under the provisions of the Carey Act and statutes of this state; and the terms of the contract cannot be construed to afford any additional protection to appellant and her assignors, except that they were to be furnished water under the same terms and conditions and at the same price as theretofore agreed upon between them and the Big Lost River Land & Irrigation Company, Limited. [6-8] The bond was given for the sole purpose of guaranteeing the completion of the project. Therefore, under section 1623, supra, upon the failure of the construction company to complete the irrigation works according to the terms and conditions of the contract to the satisfaction of the state engineer, it became the imperative duty of the register to give such construction company written notice of such failure, and if, after a period of 60 days from the giving of such notice, the construction company failed to proceed with the work or to conform to the specifications of its contract with the state, then the contract and the bond of such parties, and all works constructed thereunder, would be forfeited to the state. It was the duty of the state land board to follow the provisions of this statute, to advertise and accept proposals for the completion of the irrigation works, and to proceed to sell the partially completed works and apply the moneys received therefrom as provided by law. In our opinion, under the plain provisions of the statutes, all of the settlers on this project were entitled to the protection of this bond, and the entire amount of it was intended to guarantee the completion of the project. Therefore it cannot be resorted to for the purpose of reimbursing individual locators for damages sustained by the failure to complete the works, but should be resorted to by the state to the end that the irrigation project be completed for the benefit of all locators thereon. If it had been the intention of the state land board at the time the contract was entered into between the state and Speer that other covenants than those pertaining to the construction of the project were to have been secured by the bond, some reference would have been made in the bond to such covenants, and the bond would have been given in excess of 5 per cent. of the estimated cost of construction, or an additional bond would have been required in an amount sufficient to cover these additional covenants and such other damages as might be suffered or sustained by locators on the tract, providing such damages were ascertainable. amination of the bond shows that reference is made to certain covenants for which the bond is given, but no reference is made to any undertaking on the part of Speer or respondent to respond in damages to appellant individually for failure to complete the contract. An ex The demurrer of respondent raises two other questions, namely, misjoinder of causes of action, and the legal capacity of appellant to sue. But since we have reached the conclusion that appellant's complaint, for the reasons herein given, fails to state facts sufficient to constitute a cause of action, and that she cannot recover upon the bond, we do not deem it necessary to discuss these two remaining questions. It therefore follows that the trial court did not err in sustaining respondent's demurrer to the complaint. The judgment of the trial court is affirmed. Costs are awarded to respondent. We have reached the conclusion that the provisions of the contract relied upon by appellant are not such covenants as will sustain a recovery, under the allegations of her complaint, of the damages therein alleged, and that the statutory provisions contained in section 1623 are exclusive, and set forth the liability of respondent under its bond. We SULLIVAN, C. J., and MORGAN, J., con (172 Cal. 638) TAYLOR et ux. v. PACIFIC ELECTRIC RY. man operating an electric street car in a popu CO. et al. (L. A. 3424.) (Supreme Court of California. May 26, 1916. Rehearing Denied June 22, 1916. ) refusal of plaintiff's instruction that a motorlous and traveled part of a city on approaching a street crossing at a rapid rate of speed was required to give reasonable notice of his approach, was not error, where the court instructed that it was the duty of a motorman in the populous part of a city to keep a close lookout and use such reasonable precautions at cross 1. NEW TRIAL 163(2)-Order-FINALITY. An order granting a new trial to plaintiff was final as to a defendant who did not appealings where his view was obstructed as the cirtherefrom. [Ed. Note.-For other cases, see New Trial, Cent. Dig. § 331; Dec. Dig. 163(2).] cumstances required. [Ed. Note.-For_other cases, see Trial, Cent. Dig. § 657; Dec. Dig. 260(8).] 2. APPEAL AND ERROR 1089(5)-REVIEW-7. REASONS FOR DECISION-MOTION FOR NEW TRIAL. Where the giving of an instruction did not constitute a proper ground for granting a new trial, as held by the District Court of Appeal affirming an order of the superior court granting plaintiff's motion for a new trial, the Supreme Court will consider the other grounds relied upon by plaintiff in its motion for a new trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4300, 4301; Dec. Dig. ~1089(5).] STREET RAILROADS 118(11) — INJURIES AT CROSSING-INSTRUCTION-CONTRIBUTORY NEGLIGENCE-PROXIMATE Cause. In such action, an instruction that if defendant was negligent and thereby caused some mistake, fright, or loss of mind on the part of the plaintiff, yet if plaintiff was himself negligent and thereby proximately contributed to his fright, etc., so that their mutual negligence continued up to the time of the collision and proximately caused it, there could be no recovery, was erroneous, as depriving the plaintiff of his right to be excused from responsibility for acts 3. STREET RAILROADS 110(1)-INJURY ON circumstances of sudden danger, even though I done by him solely through his fright under the TRACK-PLEADING-NEGLIGENCE. A count in an action for damages for per-mate cause of the injury. his original negligence was not a direct or proxisonal injuries resulting from a collision between defendant's street car and an automobile driven by the plaintiff, charging that defendant willfully, wantonly, and recklessly propelled its car at a high and dangerous rate of speed along the street and against the automobile with knowledge of plaintiff's peril and that defendant could, by the exercise of ordinary diligence, have avoided injuring the plaintiff, was not based upon negligence, but stated a cause of action based upon willful wrong and injury. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 224; Dec. Dig. 110(1).] 4. APPEAL AND ERROR 1061(3)-HARMLESS ERROR-NONSUIT-SEPARATE COUNT. In such case, error, if any, in granting a nonsuit as to such count was without injury, where everything which could have been claimed for the plaintiff thereunder was included in and disposed of by the trial, in which evidence of the alleged willful act was received and an instruction on the doctrine on the last clear chance given. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4210; Dec. Dig. 1061(3).] 5. STREET RAILROADS 118(3)-INJURY ON TRACK-INSTRUCTIONS-NEGLIGENCE. Where there was some testimony tending to show that after the motorman and the plaintiff were in sight of each other and when the collision was impending the motorman rang his bell, an instruction for defendant that if the plaintiff saw the car while he was in a place of safety and by the exercise of ordinary care could have avoided the collision, it was immaterial whether the bell on the car was rung, as the only purpose of ringing it would be to give knowledge of the car's approach, was not dealing with the last clear chance doctrine, and was not objectionable by reason of the use of the words "at any time," and the word "only," since such words would not prevent the jury from inferring that the motorman knew of plaintiff's danger and could have avoided the collision by stopping the car in the exercise of ordinary care instead of using the time in uselessly ringing the bell. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 261; Dec. Dig. 118(3).] 6. TRIAL 260(8)—REQUESTED INSTRUCTION -GIVEN INSTRUCTION. In an action for injuries from the collision of a street car with plaintiff's automobile, the 118(11).] [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 268; Dec. Dig. 8. STREET RAILROADS 102(2)—INJURIES AT CROSSING-CONTRIBUTORY NEGLIGENCE. If plaintiff was guilty of negligence contributing to the collision and operating continuously up to the time of the collision, there could be no recovery, even though the defendant or its motorman might have been negligent. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 219; Dec. Dig. 102(2).] 9. TRIAL 200-INSTRUCTIONS-PROVINCE OF JURY. In an action for personal injuries from a collision of a street car with plaintiff's automobile, where the testimony of the motorman placed the car at about 150 feet from the point of the collision when he cut off the power, and the testimony of plaintiff placed it at about the same distance when he first observed it, the words "at any time" in an instruction that if by the exercise of ordinary care plaintiff could have avoided the collision, it was immaterial whether the bell on the car was rung as its "only" purpose would be to give notice of the car's approach did not invade the province of the jury, since the ringing of the bell in such circumstances was immaterial, and had no cause or connection with the accident. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 471; Dec. Dig. 200.] 10. STREET RAILROADS 102(1)—INJURIES ON TRACK-LAST CLEAR CHANCE. In such action, the effect of the application of the doctrine of last clear chance would be to eliminate from consideration all questions as to the proximate cause of the plaintiff's peril; for, if the motorman had actual knowledge of such peril, and by the exercise of ordinary care had an opportunity to avoid the accident, but negligently failed to do so, such negligence would be the proximate cause of the injury, making defendant liable. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 186, 194, 200, 203; Dec. Dig. 102(1).] 11. STREET RAILROADS 118(15)—INJURIES AT CROSSING-INSTRUCTION-CONSTRUCTION. An instruction that if the plaintiff's automobile was moving at less than 15 miles per hour when it turned toward an approaching car and the motorman then saw it, and if such an auto For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes mobile could in the exercise of ordinary care be turned at such speed and place without swinging over the track, the motorman might assume that it would not swing over the track and was not bound to apply the brakes or attempt to stop the car until, in the exercise of ordinary care, he became aware that it would not clear the track, was addressed to the situation existing before the motorman became aware or should have become aware that plaintiff had negligently placed himself in a perilous position, and was not an instruction on the doctrine of last clear chance, but applied a general rule of negligence to facts independent of that doctrine. In Bank. Appeal from Superior Court, Los Angeles County; B. F. Bledsoe, Judge. Action by Robbins B. Taylor and wife against the Pacific Electric Railway Com[Ed. Note. For other cases, see Street Rail-pany and R. Middleton. Verdict for defendroads, Cent. Dig. 88 258, 268; Dec. Dig. ant corporation. From an order granting a 118(15).] new trial, defendant corporation appealed. The District Court of Appeal affirmed the order of the Superior Court. On application for hearing in the Supreme Court granted, and order affirmed. 12. STREET RAILROADS NEGLIGENCE. 81(1)-OPERATIONThe law does not require a higher degree of care of a motorman than is required of other users of the public streets, and the reasonable care which is required must be measured by all the conditions, rights, and circumstances of each particular case. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 172, 173; Dec. Dig. 81(1).] 13. STREET RAILROADS 90(4)—OPERATIONNEGLIGENCE-KNOWLEDGE OF DANGer. The mere fact that a motorman sees an auto J. W. McKinley, R. C. Gortner, and Frank Karr, all of Los Angeles, for appellant. Leonard B. Slosson, of Los Angeles, and Clayton B. Taylor, of Pasadena, for respondents. LAWLOR, J. This court granted the application of the defendant corporation for a mobile does not require him to take added pre-hearing after decision in the District Court cautions to avert a collision, but to require such of Appeal for the Second District, which afprecautions it is essential that he should have firmed the order of the superior court grantseen that it was in a position of danger, and, as ing the plaintiffs' motion for a new trial. he might assume that it would stop before coming to the track, such realization of danger The hearing was granted because of the conwould arise only when it appeared either that clusions reached by the District Court of the automobile was being driven in ignorance Appeal in regard to instructions Nos. 7 and or disregard of the possibility of meeting an ap-31, given to the jury, and which shall be proaching car, or that it had gotten so near the track that it could not be stopped. presently considered. The rest of the opin [Ed. Note. For other cases, see Street Rail-ion, which we hereby approve and adopt, is roads, Cent. Dig. §§ 190-192; Dec. Dig. as follows: 90(4).] 14. STREET RAILROADS ON TRACK-INSTRUCTIONS. 118(15)-INJURIES Where plaintiff's requested instruction that if the motorman saw, or ought to have seen, the automobile in a place of peril it was his duty to use ordinary and reasonable effort to have his car under control, and that the motorman's care was measured by the dangers of the situation, treated as intended to cover the doctrine of last clear chance, was properly modified by omitting the words "or in the exercise of reasonable care ought to see." [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 258, 268; Dec. Dig. 118(15).] 15. TRIAL 296(4, 5) — INSTRUCTION - OмISSIONS SUPPLY BY OTHER INSTRUCTIONS. Treating such instruction as not presenting the doctrine of last clear chance, the omission of such words was not error, where the omission was supplied by other instructions. [Ed. Note.-For other cases, see Trial, Cent. Dig. 709; Dec. Dig. 296(4, 5).] 16. APPEAL AND ERROR 1066-REVIEWHARMLESS ERROR-INSTRUCTIONS. Where it was not questioned but that the motorman actually saw the approach of the automobile in time to act, the omission of such words, "or in the exercise of reasonable care ought to see," from an instruction, was not prejudicial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. 1066.] "This is an appeal from an order granting plaintiffs' motion for a new trial. The complaint is in two counts and the plaintiff's prose cute this action to recover damages for personal injuries received by them, resulting from a collision between a street car of the defendant company and an automobile owned and driven by the plaintiff Robbins B. Taylor. Further demand is made on account of expenditures incidental to the personal injuries received and on account of damages to the automobile. The first count of the complaint charges that the defendants negligently and carelessly propelled their street car at a high, dangerous, and unsafe rate of speed along the street and upon and against the automobile. The second count is like the first, except that, instead of charging negligence upon the part of the defendants, it charges that the defendants willfully, wantonly, and recklessly propelled their street car at a high and dangerous rate of speed along said street and against said automobile, and that this was done by defendants with knowledge of plaintiffs' peril and the car was so propelled after defendants, knowing of the danger to plaintiffs, could with the exercise of ordinary diligence have avoided injuring plaintiffs. The answer, after denying the several allegations of the complaint in which the plaintiffs' causes of action are set forth, also alleges facts constituting the defense of contributory negligence. behalf of the plaintiffs, defendants moved for [1] "At the close of the evidence introduced on judgment of nonsuit on the ground that there was no proof establishing or tending to establish any negligence on the part of the defendants or either of them, and on the further ground that the proof affirmatively established contribu tory negligence on the part of the plaintiffs di-think I took a second turn on the control wheel, rectly and proximately contributing to the acci- very likely. I cannot explain it any other way.' dent. The motion was granted as to the second The street car was going upgrade. 'I intended cause of action and denied as to the first cause to shut off the power; whether I did so or not, of action. Thereafter, the cause having been I do not know. My foot may have submitted to the jury upon the first cause of missed it as I went to put it down. It was action, their verdict was returned in favor of the pretty exciting time.' Again he said: "The bell defendants, and judgment was entered accord- had not been rung on that car when I saw it. ingly, in favor of the defendant railway com- I am absolutely certain of that; at least, I did pany. The defendant Middleton, who was the not hear it, and I think I would have heard it, motorman operating said street car, was ignored because I was watching for it. * * * I will in the judgment and we shall not further refer swear I did not hear-I think I did hear it when to him as a party to the action. The order I got on Sunset boulevard. I think under norgranting a new trial is final as to Middleton, mal conditions I could have made the turn all since he did not appeal therefrom. The notice right. If I had not got excited, I could have of appeal is given by and on behalf of 'the de- stopped my automobile in 15 feet at the outside, fendant.' Counsel on both sides by their briefs at the rate I was going, if my purpose had been have assumed that the defendant referred to in to stop the automobile, or if my foot had struck the notice of appeal is the defendant railway the-cut off the power-I could not tell, I did company, and we make the same assumption. the best I could; God knows. If I had not [2] "The motion of plaintiffs for a new trial missed the clutch I could have stopped; I did was based upon several assignments of error the best I could under the circumstances.' Recovering the order granting the motion for non- called for further testimony, Taylor said: 'I suit and several alleged errors in giving, and do not think I could have stopped in 12 or 15 others in refusing, instructions to the jury. The feet. I do not know; I never tried. I think order granting the motion for new trial is as under normal conditions I could have stopped follows: 'It is ordered that the said motion be, within 50 feet.' and it is hereby granted on the ground of error committed by the court in giving instruction No. 20, requested by defendant.' Since it is our opinion, as hereinafter stated, that the giving of instruction No. 20 did not constitute a proper ground for granting a new trial, it is our duty to also consider the other grounds relied upon by plaintiffs in their motion for a new trial. Weisser v. Southern Pacific Ry. Co., 148 Cal. 427, 83 Pac. 439, 7 Ann. Cas. 636. * "Mrs. Taylor testified: 'As we approached Highland avenue, I saw a car after my husband had commenced to turn the automobile, and it was coming at a terrific speed. I was in the rear seat behind my husband. * Ι did not hear any bell prior to that time. The bell may have rung, but I did not hear any bell at all.' Several witnesses testified to the fact that no bell was rung on the street car as it approached Sunset boulevard, and that the car was traveling at a very great speed, variously described as 'terrific,' 'fast,' 'very fast,' 'swiftly.' [3, 4] "It may be doubted whether the second count of the complaint is based upon negligence at all; rather than that, it seems to state a cause of action based upon willful wrong and injury. It was so held in the somewhat similar case of Tognazzini v. Freeman, 18 Cal. App. 468, 123 Pac. 540, where the action arose out of a count be construed as one stating a cause of action arising out of willful, wanton, and reckless negligence, and if in that view the nonsuit should not have been granted, it follows that the error was without injury for the reason that everything which could have been claimed for the plaintiffs under that count and on that theory of the case was equally well included in and disposed of by the trial which proceeded to completion as a trial on the issues raised by the first count of the complaint and the answer thereto. The only wanton, willful or negligent acts of the defendants which the plaintiffs' evidence tended to show, consisted in violations of the duty of the motorman to use due care to avoid injury to the plaintiffs after he discovered that they were or were about to place themselves in a place of danger. With respect to such situation the evidence was received and the jury was fully instructed thereon, and those instructions covered what is known as the doctrine of the 'last clear chance' to avoid impending danger. "On July 16, 1911, the plaintiff R. B. Taylor, and his wife, the plaintiff Angie L. Taylor, with three other persons, were traveling west on Sunset boulevard in the city of Los Angeles in an automobile belonging to Mr. Taylor and were approaching Highland avenue. Mr. Taylor was driving the machine at a speed of a little under 15 miles per hour. At that time a street car of the defendant company was coming north on Highland avenue approaching Sunset boulevard. The view of the plaintiffs south-collision between automobiles. But if the second ward on Highland avenue was obstructed by buildings and trees until they approached close to the east line of Highland avenue. R. B. Taylor was 'just a trifle' hard of hearing. The car tracks on Highland avenue were laid in the street as a double-track system, but for some reason the east track was not then in use, and the street car was coming north on the left-hand or westerly track. Mr. Taylor slowed down when he reached a point about 75 feet from the railroad tracks and listened, but heard nothing and saw nothing. He slowed up the machine and pushed out the main clutch so as to shut off the power, then hit the clutch in and almost immediately, looking to the southwest, saw the car coming up Highland avenue. He jerked his wheel around, endeavoring to turn his automobile to the north to go up Highland avenue. Testifying he said: 'I put one foot on the brake, and one foot-threw off the power, but I cannot say whether I did or not. Now, whether I took a second turn or not I cannot tell; I do not remember; I do not know, but I know it curved around to the right, and I think the [5] "We have stated the fact that the court in left front wheel had either got up close to the granting plaintiffs' motion for new trial did so track the car was coming on-possibly the specifically on the ground of error committed in front wheel had passed over it a little, but 1 giving instruction No. 20, requested by the dewas running north practically, but at a little fendant. This instruction was as follows: 'I angle to the west.' The car struck the automo- charge you that if from the evidence you bebile and, according to some of the testimony, car-lieve that the said Robbins B. Taylor saw the ried it along Highland avenue 81 feet from the point of collision before the car stopped. Taylor also testified that when about 50 feet from the east rail of the track on which the street car was running, he was traveling at about 12 miles an hour; that at that point he jerked his wheel so as to turn his automobile to the right as quickly as he could on seeing the car approaching at 'terrific speed.' 'I do not * defendant's said car while he was still in a place of safety, and that by the exercise of ordinary care, such as would have been exercised by a reasonable person under the circumstances, either in applying the brakes on said automobile, or in turning the same, he could have avoided the said collision, then it becomes immaterial in this case whether or not the bell on said car was rung at any time, for the only purpose of fright or loss of presence of mind the plaintiff makes a mistake which prevents him from escaping the danger and injury, then as a necessary legal consequence he shall be responsible for the mistake so made, and this shall be considered as negligence proximately causing the injury, even though his original negligence was not a direct or proximate cause of the injury. The instruction is complicated, misleading, and wrong." ringing the bell would be to give knowledge of, a dangerous emergency, and if through sudden the car's approach, which knowledge the said Robbins B. Taylor in that event would already have obtained by seeing it.' Counsel for respondents make no criticism on the wording of this instruction, except the use of the words 'at any time,' and (in the following clause) 'only,' near the end of the sentence. They claim that by the use of these words the jury were prevented from drawing the inference from the testimony, if they were so disposed, 'that the motorman knew of the respondents' danger and could have avoided the collision by stopping the car in the exercise of the ordinary care required of him in such a situation, instead of using the precious seconds in the useless procedure of ringing the bell.' There was some testimony tending to show that after the motorman and the plaintiffs were in sight of each other and when the collision was impending, the motorman rang his bell. They contend that by reason of the error above noted in instruction No. 20 they were deprived of the benefit of the rule requiring the defendants to duly utilize their last clear chance to avoid the collision. The answer to this contention is that the instruction in question was not dealing with that phase of the case relating to the doctrine of last clear chance; that the doctrine mentioned was fully discussed in other instructions given by the court; and that there is no reasonable probability that the jury would put upon the instruction as stated the strained construction insisted upon by the respondents. [6] "The plaintiffs offered and the court refused to give the following instruction: 'It is the duty of a motorman operating an electric street car in a populous section or much traveled portion of the city, on approaching a street crossing at a rapid rate of speed, to give reasonable warning of his approach.' Instruction No. 25, as given by the court, closes as follows: 'It is the duty of a motorman while operating an electric street car in a populous or much used portion of a city to keep a close lookout and he should use such reasonable precautions at crossings where his view is obstructed, as the circumstances require, and it is negligence on his part not to so do.' In view of the instruction given, we think that respondents were not injured by the refusal of the instruction asked for by them. "The objection of respondents to instruction No. 3 manifestly refers to a clerical error which cannot reasonably be supposed to have misled the jury. [7, 8] "Instruction No. 18, given at request of the defendant, reads as follows: 'If you find from the evidence that defendants were negligent in the commission or omission of some act, and that thereby said defendants caused some mistake, fright, or loss of presence of mind on the part of said Robbins B. Taylor, still I instruct you that if the said Robbins B. Taylor was himself negligent, and by such negligence on his part contributed directly or proximately to a mistake, fright, or loss of presence of mind on his part, and that thereby by the mutual fault both of said Taylor and said defendants operating and continuing up to the time of the collision the said accident directly and proximately resulted, then no recovery can be had herein and your verdict must be for the defendants. It is the law, as stated in instruction No. 23, that if the plaintiff was guilty of contributory negligence, and if such negligence on his part contributed directly or proximately to the collision, and operated continuously up to the time of the collision, there can be no recovery, even though the defendant company or motorman may have been negligent.' But this instruction No. 18 attempts to transmute a more remote cause of the accident into a proximate cause and to deprive the plaintiff of the right to be excused from responsibility for acts done by him solely through his condition of fright under the circumstances of sudden danger. In substance it is a statement that if the mutual neg [9] Before discussing instructions Nos. 7 and 31 the suggestion may be added to the comment of the District Court of Appeal in regard to instruction No. 20, that while the expression "at any time" might, under other circumstances, be improper, still under the testimony here it was not susceptible of misconstruction and did not invade the province of the jury. The testimony of the motorman would place the car about 150 feet from the point of the collision when he cut off the power. He testifies that it was at this juncture he rang the bell. The version of Mr. Taylor places the car about the same distance away when he first observed it. So that "at any time" is confined to the space intervening between Mr. Taylor's first view of the car and the collision. Assuming, therefore, in favor of the facts as stated in the instruction, the ringing of the bell was immaterial and had no causal connection with the accident itself. Lambert v. Southern Pacific R. R. Co., 146 Cal. 231, 79 Pac. 873; Starck v. Pacific Electric Co., 156 Pac. 51. This also disposes of the objection to the word "only" used in connection with the purpose of ringing the bell. [10, 11] The seventh instruction is, in part, as follows: "If you believe from the evidence that the said automobile was moving at a rate of speed less than 15 miles per hour at the time the said Robbins B. Taylor turned it toward the right, and that the motorman then saw such automo bile and the turn that was being given it, and if you further believe from the evidence that an automobile of that class and make could easily, by the exercise of ordinary care, be turned at said speed and at said place without swinging over in the vicinity of or in dangerous proximity to said track on which said car was running, then I instruct you that the said motorman had a right to assume that the said automobile would continue to swing to the right and would not come into dangerous proximity to said car, and said motorman was under no obligation to apply the brakes or to attempt to stop the said car until such time as he became aware, or in the exercise of ordinary care should have become aware, of the fact that said automobile would not succeed in making the said turn or would come in dangerous proximity to said car. If you believe from the evidence that said automobile was about 40 feet from the said track when the said Robbins B. Taylor saw defend, ant's car, and that said automobile was running at a speed of 15 miles per hour or less, and that an automobile of the said class, and make, running at such speed, could be stopped by the exercise of ordinary care before reaching said tracks or before coming in dangerous proximity thereto, then I instruct you that the motorman had a right to assume that the said automobile, if going at said rate of speed, would be stopped before going upon said track or in dangerous prox |