Learned

This is an appeal from a judgment in favor of plaintiff in an action for damages for injuries sustained by her in a collision between a motor-bus of the defendant, upon which she was a passenger, and a street-car of the municipal railroad of San Francisco. The jury returned a verdict in plaintiff’s favor for the sum of six thousand dollars, for which judgment was entered; but the court, upon defendant’s motion for a new trial, ordered that, unless the plaintiff should consent to a reduction of this amount to two thousand dollars, a new trial would be granted. The plaintiff consented to this reduction, whereupon the new trial was denied.

The defendant appeals from the judgment as thus modified, and urges four points upon appeal: (1) That the court’s instruction upon the burden of proof was erroneous; (2) that its instruction concerning future suffering was erroneous ; (3) that the motion for a new trial upon the ground of newly discovered evidence should have been granted, and (4) that the damages were excessive.

The instruction upon the burden of proof of which the defendant complains reads as follows: "Contributory negligence on the part of a passenger cannot be presumed from…