Greeneich

Plaintiff, a widow, sued to recover damages for the death of her minor son, alleged to have been caused by the negligence of the defendant. She was given judgment and the defendant has appealed.

Respondent objects to the consideration of the evidence on the ground that appellant’s request for a- transcript thereof was not filed in time. To uphold the contention would be to affirm the judgment, no error appearing upon the face of the judgment-roll. A decision of the question, however, is unnecessary, as the judgment must be affirmed on the merits.

Plaintiff’s son was of the age of thirteen years and eleven months and was in the eighth grade of the elementary schools. He was in charge of a newspaper route and during the evening of December 9, 1922, he was engaged in delivering papers to residents along Cherokee Lane, a paved highway running in a southerly direction from the town of Lodi. He was riding a bicycle without a light or reflex mirror, the light which he had been accustomed to use being then in a repair-shop. The evening was rainy and the pavement was wet and slippery.

Shortly before 6 o’clock of the same evening the defendant’s son, of the age of twenty years, was…