Sheean

This is an action for personal injuries sustained by the plaintiff while riding in the automobile of defendant, which left the road and collided with a tree standing near the highway. The cause was tried by a jury and verdict for the defendant returned. Following the entry of judgment thereon plaintiff appeals, urging as a ground for reversal the insufficiency of the evidence to show contributory negligence and the giving by the court of certain instructions.

Defendant Foster was at the time referred to herein the proprietor of a mountain resort at Berry Creek, about eighteen miles from the city of Oroville. Upon the day in question Foster had arranged to go to Oroville and, according to the testimony of defendant, plaintiff said to him, “I would like to go to Oroville with you,” to which defendant replied, “There will be an awful crowd—it'is crowded, and I said: ‘There is four men going and you make the fifth and there would be six in the car, and it would make it awful crowded’ . . . and when I came out (of ice-cream parlor) and she was in the car.”

The circumstances surrounding the injury to plaintiff are depicted in the testimony of defendant, called by plaintiff as a…