Thе plaintiff commenced an action against the defendant to recover damages for the death of his minor child, a boy of the age of four years and eight months, who was struck by a Castro Street cable car on May 9, 1918, and from which wounds the child subsequently died. The plaintiff was awarded a judgment in the sum of twо thousand five hundred dollars, and the defendant has appealed under section 953a of the Code of Civil Procedure.
In his complaint the plaintiff alleged that the defendant’s
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agent negligently operated the car, and by reason of such negligence the child was killed. The defendant answered! denying the material allegations of the complaint and! pleaded the contributory negligence of the child and also) the contributory negligence of the child’s parents. The; points made by the appellant asking for a reversal will be discussed in the order of their presentation by the appellant.
In what we have said above we are not to be understood as holding that either instruction was a sound prоposition of law in all other respects.
The appellant complains of another instruction which is as follows: “If you find that the mother of said child permitted the child to go upon the street in front of the house and across the street therefrom, and that she made frequent trips to the window to watch said child, and if you find that she exercised reasonable care in that regard, and that during one of the intervals of time between the mother going to the window, the said child wandered away from where he had been playing, and that the interval of time was not longer than that which would be ordinarily permitted by an оrdinarily prudent person under the same circumstances, then contributory negligence cannot be imputed to. the parents.” The appellant says that said instruction violates section 19, article VI, of the state constitution, which provides that judges shall not charge juries with respect to matters оf fact, and that it took from the jury the question of ordinary care. The appellant also contends that the instruction states in effect that watching a child at intervals constitutes reasonable care. In reply to this criticism the respondent claims that the instruction particularly defines the meаning of ordinary care, and instructs the jury that if the;'- find that the parent, or parents, of the child, did use ordinary care, then, so far as the parents, or custodians, of the child are concerned, they cannot be held guilty of contributory negligence. We will not attempt to answer the objections made *129 by the appellant. A brief reading of the instruction and of respondent’s explanation thereof, both show that the instruction attempts to define ordinary care. Both show that the definition as tendered is to the effect that ordinary care is reasonable care. However, as reasonable and ordinary are interchangeable expressions the definition does not carry us forward. We will not attempt to frame a full instruction on the subject, and are not to be understood as attempting to do so. However, we call attention at this time to the fact that as an instruction pertinent to the particular facts of this particular case the instruction omits many pertinent matters. It docs not state the age of the deceased child, whether the child was allowed to go out of the house attended or unattended, whether the house is in a thickly populated neighborhood, or whethеr the street and adjacent streets are slightly traveled or busy thoroughfares, nor does it state what is meant by frequent trips to the window. Neither does it state whether the windows were opened or closed, and whether the mother was possessed of good hearing or was very deaf. It seems unnecessаry for us to do more than to mention the foregoing as being elements that would enter into the mind of a reasonably careful mother as quieting her mind with reference to the welfare of her child. It is also quite clear that a material change or addition of any one of the foregoing elements might сause any jury to take a different view of the matter.
The appellant asserts that the verdict of two thousand five hundred dollars was excessive. • In view of what has been said *130 above, we think it is unnecessary for us to pass on that point. A new trial must be had and it should be left to the jury under appropriate instructions to determine the amount without being hampered in any respect by the opinion of this court.
The judgment is reversed,
Nourse, J., and Langdon, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 18, 1922, and the following opinion then rendered thereon:
We approve of that portion of the opiniоn holding that the proceeds of the judgment in favor of the father is community property, but we disapprove of that portion of the opinion to the effect that the proceeds of the judgment pass to the parents, one-half to each. The contributory negligence of the mother is а defense to the action on behalf of the community to recover' for the death of the child, not because of her interest in the community property but because in earing for the child she represents and acts for the community and for the husband as the head of the community, and her negligence in caring for the child is the negligence of the husband. We agree with the balance of the opinion of the district court of appeal, but think that a general definition of negligence would be a sufficient guide to the jury in determining whether or not the mother was guilty of negligence under the evidence..
Transfer denied.
Shaw, C. J., Wilbur, J., Lennon, J., Sloane, J., and Shurt. leff, J., concurred.
Lawlor, J., voted for hearing.