Mr. Justice Burnett
delivered the opinion of the court.
1. The order setting aside the judgment and ordering a new trial is appealable: Section 548, L. O. L. The standard by which the correctness of the trial court’s action in such cases is to be judged is thus laid down by Mr. Justice Moore in L. C. Smith & Bros. Typewriter Co. v. McGeorge, 72 Or. 523 (143 Pac. 905):
“Under the provisions of this statute, the right of a Circuit Court to set aside a judgment and grant a new trial can be exercised only when in the trial of a cause an error has been committed which is so prejudicial to the defeated party that the judgment rendered against him would, if allowed to remain in force, be reversed on appeal. When the trial court, within the time allowed, discovers that such a mistake of law has been made, it may, sui sponte or on motion, correct the error by setting aside the judgment and granting a new trial, thereby avoiding the necessity of and the expense that would be incurred by an appeal: De Vall v. De Vall, 60 Or. 493 (118 Pac. 843, 120 Pac. 13, Ann. Cas. 1914A, 409, 40 L. R. A. (N. S.) 291); Taylor v. Taylor, 61 Or. 257 (121 Pac. 431, 964); Sullivan v. Wakefield, 65 Or. 528 (133 Pac. 641).”
2. That negligence is a question of fact to be determined by the jury is stated in Palmer v. P. Ry. L. & P. Co., 56 Or. 262 (108 Pac. 211); Sullivan v. Wakefield, 59 Or. 401 (117 Pac. 311); Kovachoff v. St. Johns Lbr. Co., 61 Or. 174 (121 Pac. 801).
3. It is contended that error was committed in the refusal of plaintiff’s requested instruction No. 2. That is an adaptation of language used in Doyle v. Foster, 128 App. Div. 281 (112 N. Y. Supp. 675), and Berler v. Kane, 139 App. Div. 76 (123 N. Y. Supp. 836), cited by the plaintiff. In those cases the trial court had *436proceeded upon the theory that as a matter of law a person standing in a street in the city of New York was guilty of such contributory negligence as would defeat his right to recover, and it was about this situation that the courts used the language substantially embodied in the request of the plaintiff here under consideration. When applied to the case there, the statement of the rule is correct; but the converse is not true. We cannot say conclusively that under all conditions a man is in the exercise of due care when he uses his privilege of standing in the street. Remembering that the- question of negligence is one of fact for the jury, this instruction, if given, would have been misleading because it implies that as a matter of law the plaintiff would not be negligent under the circumstances if he stood in the street after having looked for approaching vehicles. A footman might look out into the street and see a runaway team coming, but it would be negligent for him to claim his right to stand in the thoroughfare and go out in front of the team. Yet the application of the instruction asked by the plaintiff would permit just such conduct. .
4. The vice of instruction No. 6 is predicated in part upon the hypothesis that there was excessive speed involved, whereas no such charge is made in the complaint; and hence in that respect the instruction was abstract. It was not framed according to the issues raised by the pleadings. It was properly refused in the first instance.
5. Again, it is faulty in assuming as a legal conclusion that the failure of the driver of a vehicle to give warning of its approach is negligence. This would invade the province of the jury. We cannot draw the conclusion as a matter of law that there is, in all cases, negligence where one fails to give warning that his *437wagon is coming. It depends upon the circumstances of the case and must be left to the consideration of the jury.
6. The defect in plaintiff’s requested instruction No. 5 as propounded by him is in the use of this language :
“And it is the duty of travelers by vehicles to keep the same under control so as not to injure pedestrians in the proper exercise of their rights. ’ ’
Again we note that the defendant is not charged with losing control of its vehicle, and the court properly struck out the excerpt quoted, and in lieu thereof added this:
“And it is the duty of each to exercise reasonable care under the circumstances. ’ ’
The language of the request which we have noted would seem to impose a duty on the driver without reference to the reciprocal obligation of the footman. The amendment cured the partiality of such words, and properly declared the rule applicable to such cases.
A review of the instructions given by the court at the trial convinces us that no error was committed therein, and that nothing contained in the charge would have worked out a reversal of the judgment in this court on appeal. Correct as the court was in the •first instance, it was wrong for it to overturn its own conclusion. Having a case with regular pleadings, no error being assigned upon the reception or rejection of testimony, the jury, under proper instructions about the law, rendered its verdict for the defendant, and that constitutes a final determination of the facts involved. A corresponding judgment is inevitable.
Department 2; Statement by Mr. Justice Harris.
An order granting plaintiff’s motion for new trial was reversed and remanded on defendant’s appeal, and the defendant now moves to retax the costs.
Motion Denied.
Mr. John C. Shillock and Mr. John J. Fitzgerald, for the motion.
Mr. Alex Bernstein, contra.
The order setting aside the first decision and granting a new trial will therefore be reversed and the canse remanded, with instructions to the Circuit Court to enter judgment for the defendant on the verdict.
Reversed and Remanded.
Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur.
Denied June 15, 1915.
On Motion to Retax Costs.
(149 Pac. 317.)
Mr. Justice Harris
delivered the opinion of the court.
1, 2. This is a motion to.retax costs. Having prevailed in this court, the appellant filed a cost bill, which includes an item of $50.90 for the transcript of the testimony. The appeal was from a judgment in an action at law, and a firmly established rule has denied the right of an appellant to have the expense of transcribing the testimony in an action at law taxed as a dis*439bursement in this court: Ferguson v. Byers, 40 Or. 468, 477 (67 Pac. 1115, 69 Pac. 32); Allen v. Standard Box & Lumber Co., 53 Or. 10, 19 (96 Pac. 1109, 97 Pac. 555, 98 Pac. 509); Sommer v. Compton, 53 Or. 341 (100 Pac. 289); Boothe v. Farmers & Traders’ Nat. Bank, 53 Or. 576, 588 (98 Pac. 509, 101 Pac. 390); McGee v. Beckley, 54 Or. 250, 254 (102 Pac. 303, 103 Pac. 61); De Vall v. De Vall, 57 Or. 146 (109 Pac. 755, 110 Pac. 705). It is contended that the practice sanctioned by repeated decisions must of necessity be changed because by the terms of Article VII, Section 3, of the state Constitution as amended in 1910, “either party may have attached to the bill of exceptions the whole testimony. ’ ’ A decision of the identical question presented by this motion has been made and is now stare decisis. In West v. McDonald, 64 Or. 203, 209 (128 Pac. 818), this court said:
“It has been held many times by this court that the expenses incurred by the appellant in procuring a transcript of the evidence in the Circuit Court must be taxed there, and will not be included in the cost bill in this court. * * And the situation is not changed by the fact that now the transcript of testimony in law cases may be transmitted to this court on appeal. The appellant, having no opportunity to present his costs to the Circuit Court, after a reversal of the case and the return of the mandate to that court, has an opportunity to file his cost bill for the costs incurred in that court; and there is no reason to change the rule announced in the cases above cited.”
The motion to retax costs is therefore denied.
Motion Denied.
Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Burnett concur.