*1 Wahlgren Go. v. Market Street of The absence claimant. making showing upon an therefor is agreement compensated that he not be agree- that an enough. be shown affirmatively must for compensation the services were rendered. made before court, respecting contract” finding that “no an im- November, includes salary was made before 9th findings its plied as express contract, well as an vice-president services rendered within his functions were pay therefor. manager, preclude implied promise any There no could be for services which implied assimpsit There were presumes agreed gratuitously. to render elected director of him after he imposed upon duties corporation, other than virtue by-laws. existed were corporation per- he rendered to the Whatever services formed direction from suggestion, at his own any without directors, per- must held that board of and it expectation formed compen- gratuitously, without sation. be affirmed. and order should judgment J., J., dissenting concurred Beatty, C.

Temple, opinion.

Rehearing denied. 9, 1901.] May Bank. F. In

[S. No. WAHLGREN, MARKET STREET Respondent, EMMA COMPANY, Appellant.

RAILWAY Negligence—Collision Foot-passen- Street-car fob Action — Warranting ger—Evidence In action for negligence Verdict. who causing to collide with was a a street-car foot- sidewalk, showed passenger crossing at the at the rate car-house car was three occurred, no warning the collision per hour when miles kept collision, avoid given, and no lookout was signal concluding jury were warranted negligence. of the defendant’s result collision was from the Negligence Jury.— Contributory — Plaintiff—Question Id. law, said, that it was as matter negli- It cannot be track, to cross which ran gence for over the side- proof; car-house, walk but into the under the circumstances for the to determine. Id.—Negligence, of Conflict- Question when a of Fact—Absence *2 ing question Conclusions.—Negligence ais Evidence—Different jury, fact though for the there is no conflict if rationally upon subject different can be drawn conclusions from impartial man decide evidence. If one sensible and care, ordinary plaintiff the facts that had exercised another that be had not exercised such con- tributory jury. negligence must be left to the Contributory Negligence— — Id.—Refusal Instruction Correct Danger Defendant—Charge of Court.—The refu- Unknown to sal instruction, defendant, of a requested correct subject contributory negligence plaintiff of the of the if there was looking listening, failure to use care and the non- liability injury guilty the defendant for if contributory negligence, plaintiff’s danger actually and the un- defendant, even, known guilty the defendant was negligence, is not all the elements where such in- prejudicial^, ojf ‘ charge struction were included in the the court. — Discovery Danger—Neglect Id. Instruction as to of Plaintiff’s Injury. — An instruc- to Avoid Accident—Proximate Cause tion, employees that if plaintiff’s the defendant’s discovered the danger, plaintiff may notwithstanding negligent, been have in time ordinary care, have avoided the accident the exercise of later employees, any, of the defendant’s prox- is the injury, imate properly given, cause of the where a basis there- laid in the cross-examination aof witness for the defendant. Excessive.— verdict for one thousand dollars Id.—Verdict not excessive, damages appears that, not as the result of negligence, defendant’s arm was broken near wrist, kept months, splints and was two at the time trial, injury, weak, eleven months after the was still subject upon change to attacks of rheumatism of the weather. from a judgment

APPEAL the Superior Court of the City County of San Francisco and from an order denying a. trial. William R. Daingerfield, Judge. new are partly facts stated in the opinion of the court in Bank, and more fully the opinion rendered in Department One. Dunne,

F. and Dunne P. & McPike, for Appellant. failure of the plaintiff to look and listen for a street-car the car-house before entering attempting to cross the track was contributory negligence, which should bar the plaintiff’s ac

CXXXII. Cal.—42 Ry. Cal. v.

658 Mc 137,140; tion. 73 Co., R. R. (Glascock v. Central Pac. 574, 579, 580; Clark v. Friend etc. Co., Graw Lumber 115 Co., 275; v. Ry. Los Everett Bennett, Angeles Co., 125; Cal. 106, v. Market Street etc. 123, Ry. Bailey 320, 116 N. Y. Co., 328, 329; City McClain Brooklyn Ry. 219;1 Buzby v. Pa. St. Co., Carson Federal Street etc. Ry. City St. Paul 126Pa. Co., Traction Downs Philadelphia cotemporaneously are parties Minn. Where both 41.) fault, there can be no recovery. St. Paul (Fonda City 2 not Minn. liable for is not Co., ) 438. if the plaintiff’s after avoiding held The defendant cannot be actually danger was known. case, known. merely ought have liable because 121 Cal. 227, 232.) Southern Pac. (Herbert Powers, & for Respondent. Heller *3 are negligence negligence questions contributory debatable, whether there is conflict jury, fairly for the 434, etc. v. Cal. Co., evidence not. 125 Pac. (Liverpool Southern 627, 634; 125 Cal. v. McKune v. Santa 439; Hennesey Bingham, 121 v. 480; 110 Cal. Co., Co., Herbert Southern Pac. Clara etc. Brothers, 115 Cal. v. San 227; 421; Cal. Buchel v. Gray Carraher 177; 100 Cal. 97 Cal. v. Oddous, 510.) Co., Boyd Francisco Bridge has a passes along right presume One who safe, point cross reasonably may suits being liable to the convenience, imputation negli without 679; N. Y. 90 McGuire v. 91 gence. (Brussov. Buffalo, Spence, 26 56;3 v. Wis. 305; Weisenberg Y. v. Potrero Shea N. Appleton, 414; Co., 44 Cal. Co. v. etc. Chicago R. R. Ry. Ingraham, etc. 659; Ill. Lawson v. N. Y. 131 57 Co., Street Metropolitan Ry. A cable 40 Div. 197; App. 307.) company bound to Supp. men, women, and children have equal right know and sidewalk, the street and its servants are bound to use lookout, and to take reasonable means to avoid acci be 99 v. Kansas etc. dents. Mo. 509;4 City Co, (Winters Ry. 54 Tex. 615;5 v. etc. Co. Anderson v. Ry. Sympkins, Min Houston Co., 42 Minn. 490;6 v. Third Ave Street Fandel Ry. neapolis N. 426; Div. 44 Y. App. Supp. 462, 465; 15 Co., R.R. Law nue 57 N. Y. Co., Street Supp. 997, 1001; son v. 40 Metropolitan Ry. 4 1 Rep. Rep. 727. 17 Am. Am. St. St. 591. 30 5 2 Rep. Rep. 38 St. 341. Am. Am. 632. 70 3 Rep. 39, Rep. and note. 6 18 Am. Am. St. 7 Ry. 659 Co. Street App. respects as Div. 307.) might gross negligence What deal steam-railroad to be done proper be perfectly 1 ing Co., R. R. Heights street-cars. (Bennett v. Brooklyn App. 459; N. Y. 205; Co., Div. 116 McClain v. Brooklyn City Ry. Ober 1059.7) Failure Co., v. Crescent 44 La. Ann. City Ry. look and contributory listen does as apply to street-cars as The rule (Clark se. v. per Bennett, 275.) to negligence same, the motive to street-cars is the whether power is horses, (Cicero etc. electricity, Ry. or cable.

Meixner, 320-325; Co., 160 Ill. Ry. Sahlgaard v. Paul 48 Minn. 232; 349-362; 22 Reid, Denver Col. Tramway Co. White re Co., v. Atlanta etc. 92 The refusal of Ry. 494.) Ga. instructions, quested correct, ground reversal, is not however if the taken charge, whole, as a declares the fully law. (People Gibson, 458; Cal. Gates, Thomas 1.) damages cannot be considered appli excessive rules within cable to the (Aldrich Palmer, case. 24 Cal. 513; Howland Co., 513, v. Oakland etc. Southern Morgan v. 501, Pac. v. Oakland Redfield Cal. 286.) HENSHAW,J.—Upon argument rehear- following the ing in case, this urged, first, that the evidence showed beyond conflict that neg- was guilty This ligence. matter is opinion considered heretofore in Department, rendered and the conclusion ex- was there pressed,' contributory negligence one which, facts, proper the de- termination of the Further jury. consideration serves but to of the Department’s confirm soundness conclusion *4 regard.

Appellant’s complaint is, second that the following instruc- tion proposed refused court: “A defendant cannot be charged damages with for injury to plaintiff, not- withstanding there be such, unless, plaintiff, danger of the plaintiff was actually time, to the defendant so that the injuries known could have been the exercise of and ordinary care; avoided a defendant, circumstances, is not liable in damages, such be- merely to have ought cause known danger, and of it could have but remissness on his known a de- part: Rep. 32 Am. By. fendant in such case must the plain- have actually known tiff’s If, danger. case, using therefore, plaintiff in this her track, senses care as she ordinary approached could have observed the track in to moving car on time avoid but danger, failed look or listen, the exercise ordinary care, though you even should find that the defend- ant did not know of her presence accident, and prior should further find that the defendant, lookout, by keeping or using other precaution care, exercise ordinary could made have itself of her danger, aware none your verdict, the less, be for should the defendant.”

This instruction, it may conceded, a correct exposition is governing the exceptional rather rare and cases which (See it applies. Herbert v. Southern Pac.

227.) But in the present instance the giving this instruc- injection would have been the into the case of no new element. but the legal elaboration of the proposition the court in parts which different of its instructions had sev- eral the jury. jury times declared to Thus the were instructed: of the railroad “Assuming duty company anticipate walk persons along would sidewalk and cross the at the track door, also, there and awas, car-house duty the part here, of this under the evidence to exercise reasonable care in approaching crossing ordinary track; the railroad appear if it should in the company, exercise observed, have but did not ordinary observe, approached track, in time to ac- avoid nevertheless, if it should further cident, appear plain- herself, ordinary care, by tiff exercise using eyes her struck, could or ears before she was have ap- observed the track, car on such so have avoided the acci- proach such care, failure to exercise dent, her thus to use make ears, is contributory negligence, eyes of her and in such must be for defendant.” the verdict And again they event “If find from the you told: the plaintiff in approaching care track at failed to use the car- to the time that she door, up was struck, and if house you find that the railroad further did not employees observe bell though rung, whatever then, her, verdict But the defendant. the be for whether a must bell determine, fair rung considera- the question whether the entire tion of bell *5 By. further rung you.” they for And still have been is also the plain- advised: “If find from the were you at tiff track the car- injured cross this attempting was while house, near, in front a car which approaching dangerously knew, she care could using her faculties with near, have known, dangerously was which have in passed her for a seconds before paused she few safety, of contribu- making cross, guilty then attempt tory defendant, must be for your verdict did company that the railroad you should believe place maintain lookout at of this ring any bells or accident.” whole,

Indeed, considering as a reading instructions giving omitted no point which entitled, justice as favorable the defendant as could permit. opinion

Therefore heretofore rendered Department and the adopted approved judgment and ap- order from are affirmed. pealed

Harrison, Van J., Dyke, J., Garoutte, J., McFarland, J., J., concurred. Temple, is the opinion rendered in Department One, — 17, 1900:

September GRAY, C.—Judgment plaintiff for one thousand dol- and from an lars, from which order it a denying new trial de- appeals. fendant was twenty-six years who age, and had been cook the vicinity for

employed some two at years, night o’clock on proceeding foot, eleven in a westerly direction, south side of Sacramento Street, between Street, and Walnut Central Avenue and in crossing the track of the defendant front of its car-barn, she a cable-car as it struck approaching the barn door, down, and ás result her arm knocked was broken, and she and injured. otherwise bruised defendant contends plaintiff’s that the verdict favor one thousand dollars evidence; that there contrary was no evidence to show negligent; that defendant was the evidence, without was the conflict, showed result of ordinary care. want *6 By. Wahlgren Co.

The evidence warranting the in their conclusion the accident was the negligent connection with to be found the as as testimony employees, its well own in that of the plaintiff.

The car-house is in the middle Central block, between Avenue and Street, Walnut on the south side of Sacramento Street. To the east of car-house, the and it and Cen- between tral Avenue, is a lot, which, vacant across the southeast from to the on northwest, the path, runs which reaches sidewalk Sacramento Street corner about feet east the northeast seven of the car-house. It is from corner fifty-six about feet the to the the building house, through door of this door and run two car the one to the tracks, curving right sharply the the the left, other to connecting both switch with by nearest of along the main tracks Sacramento running two Street. main connecting There is also a the two switch-track the track just tracks west the westernmost curved from the car-barn the main track. connects with southernmost the feet sidewalk front of car-house about fifteen wide, and it is about feet from the to the nearest curb twelve rail running along of the main track Street, Sacramento thirty feet from is about where the track connects curved the main track the sidewalk curve. just without conflict that the car had appears come from had passed barn, the the ferry, switched back from was the track, the north to south and on track ran down switch, second stopped where it was while conductor and looked into the barn to see a car down went also to see if clear way, in the sidewalk was of people, switch, He then returned to the he second raised says. as the gripman let the car run lever, signal back- barn, into the to return gravity intending soon wards the right-hand track, and make main track curved an- car It was while the its trip ferry. other was thus on into at barn, going across way rate hour, plaintiff that the three miles was struck and injured. conductor, switch, while at the and after the car had a position that he could him, not see passed any track on the curved approaching sidewalk from person at gripman, being grip space the open and the end east, not, says, see whether car, sidewalk was By. Market Street according to dear or not. gripman, Neither the conductor nor after their until testimony, time saw that she car had testifies knocked her down. lot, came to the vacant Sacramento Street across path opposite first she saw car that struck her when on and the northeast corner of the that she barn; walked on the first knew curved track in front of the barn she Street; car going Sacramento down car was then so near her, that could not get away, just she tried to do “I says: so back. stepping She like I track, this, and I car stepped coming, saw back and tried get back, but I did not clear of the track get *7 me, side, enough, and the car my struck and I fell on left hand my me—my was doubled left hand—and up broken. I minutes, wrist was on the for some lay some men came me when out of the car-house and brought there. No warnings signals or had been given me, nor given rung, any bells or notice coming been that this car was off the track onto curve; this present nobody warn me at the time. I could not tell who on the I car; did not see one. is My eyesight good.” think the

We jury fully warranted their conclusion that the the result of negligence having defendant’s no one where they could keep a lookout and endeavor avoid running over people Certainly, cannot a say, law, sidewalk. we as matter of that it negligence plaintiff to track as endeavor cross did. “ is, that negligence question The rule is a of fact for the there is no conflict in jury, evidence, different subject can upon be conclusions rationally drawn from the This has been proposition evidence. declared frequently (Fernandes court. v. Sacramento R. R. Co., etc. 52 Cal. 45; R. Co., Market Street R. McKeeverv. Chidester v. Co., Cal. 197; etc. House Consolidated v. 100 Cal. Meyer, 592.) is general, appellant presents The rule very long list of the rule has been stated. The cases which effect of all is If one can but conclusion reasonably the same. be reached question it from the law for the court; but if man impartial decide one sensible that the plain- care, ordinary and another had exercised equally tiff sensible v. impartial man that he had not exercised Clara must be left Santa jury. (McKune vary care Cal. 480.) proper Our be ideas as to would what experience. according knowledge, to temperament, judge notions party peculiar not be held to regarded can be only as to what be care. That would enforced or recognized as a standard or rule which would be formulated judges, all learned and conscientious stan- common no such things, into rule. In nature of reasonable be reached in dard can cases In such the facts. opposite men can reach conclusions Ind. Co., 128 said in Mann Belt Railroad cases was obtain of the highest said to be the effort ‘it is 138, com- community, average men of the of twelve judgment men whose education, men of little learning, men of prising seen have themselves only consists of what learning laborer,—as mechanic, the farmer and merchant, heard,—the ” case.’ does or does not exist negligence to whether In support Pac. 227.) Southern (Herbert the truth of statement must assume we verdict the ques- her. That rung warning given and no bells were left of fact to be here proper recent de- shown the verdict Babcock Los Angeles, this court: cisions Co., 127 Cal. 608; George etc. Electric Ry. Oakland Johnsen *8 126 etc. Ins. Co., 357;8 Cal. Co. v. Liverpool AngelesRy. Los Cal. Abrahams Los Co., 434; Angeles 125 Southern Pacific 411; Bennett, Cal. Clark v. 123 Cal. Co., 275; 124 Traction 55;9 Cunningham Con. St. Ry., Oakland Fox v. Co., Everett Los Angeles 115 Ry. Angeles Los Omnibus Cable 114 Finkeldey 28. the requested defendant and refused by instructions The far sound and to the they pertinent so as were case court, the evidence, refused, properly the were because they presented Some of the instructions substance, already given. in were, pertinent; instance, not was unnecessary were refused concerning rule as to not jury any negligence the enlighten to to the injury, plain because that contributing proximately all, at negligent negligence contributed if was plaintiff Rep. Rep. 62 Am. 216. Am. St. May, unnecessary It was

proximately injury. to her directly that to confuse the distinctions minds of the jury did not naturally arise in the case. instruction to objects part the plaintiff

given find that at “If plaintiff’s to request, you wit: then track, and was the guilty of in to cross negligence trying em- changing if defendant’s back, her mind and turning yet danger her ployees, by the use of ordinary discovered thereafter, time, and car had a clear to opportunity stop turn- or cross to accident, trying otherwise then prevent part ing if back, not any, was employees, but the later of defendant’s is the any, proximate injury.” cause of the tend- objection there evidence is, that it assumes that was to ing of defendant knew employees show to objection presence being There is prior her struck. law, that it is not sound ground instruction assump- As to think none can made. properly we think counsel instruction, we interested argue right employees did not see they witnesses, both testified they no obstruction injury, yet, being before her plaintiff from was must her view, the conductor have seen looking if he him, the car was passed switch before testimony seem to im- as his would approaching pedestrians, was laid the cross-examina- argument basis for ply. entitled to the conductor. was tion of this cross-examination. developed by on the theory instruction the case court covered We think instructions together read will developed as error. free from be found Plain- for a thousand dollars was excessive.

The verdict wrist, near the kept splints broken arm tiff’s three after the before months months. for two her and then she work, compelled return trial, At the time of the arm. eleven months broken favor left hand “My testified: injury, after its former and shape; it has recovered size hurt; one I much I the other. use other as as strong not as it is *9 if I to lift I can’t one, try anything because and favor can, of the change weather, and if there is always, it, do Estate of Marti. cold, rheumatism sets and I in the hand in, cold get change of the weather.”

The judgment and order should he affirmed. C.,

Smith, C., Haynes, concurred. For the reasons given opinion in the foregoing judg- ment order are affirmed.

(cid:127)Harrison, J., J., Garoutte, Van J. Dyke, [S. F. 11, 1901.] No. In May Bank. In the Matter of the Estate of MARTI, MELCHIOR Deceased. MARTI,

ELIZABETH J. AMELIA Appellant, v. AN- S. et al., DERSON Respondents. of

Construction Will—Absolute Devise Tes- to Wife—Desire tamentary Disposition of Half—Estate not Qualified—Trust. — devise, will, estate, in a of all of the residue of testator’s consisting wife, community property, of appointed to his who was bonds, disposition power executrix without full estate, management of the vests in her entire residue abso- lutely, and her qualified title thereto is not a subsequent inde- expression pendent upon the desire of the testator her death property bequeathed one half to her shall be devised her thereby to his relatives. No trust created heirs favor of the testator. Precatory Words.—Precatory may may words or not Id.—Effect trust, according particular create circumstances of case. trust, They regarded creating appears are not to be unless impose imperative obligation, that the testator intended option in the exercise of discretion or to exclude reference to question. act in Imperative upon Id.—Expression of Desire Executor—Estate expression Legatee not Limited.—The desire of the testa- disposition imperative his estate is to be construed as tor for executor; independent expression to his but a addressed mere desire, legatee, is not to addressed to be construed as a limita- expressly interest legatee an estate or vested bequest A clear and distinct or terms. desire cannot absolute by any equally distinct, in- other clear or words affected parts argument from other will. ference