Jones

The plaintiff, Mabel Jones, is the widow, and the eight other plaintiffs are the children, of Samuel A. Jones, who, while engaged in paving work on a highway in San Benito County, was killed on October 8, 1929, by being hit by an automobile driven by the defendant, Elizabeth M. Hedges.

The action, seeking damages for the death alleged to have been caused by negligence on the part of the defendant, was tried with a jury which rendered a verdict of $40,000 in favor of plaintiffs; and from the judgment entered in that amount, the defendant has appealed.

Besides charging error in respect of evidence and instructions, the defendant presents for consideration the legal status of the decedent as a worker on the highway, and contends that he not only assumed the risk of injury, but was guilty of contributory negligence barring recovery by his heirs, and that the amount awarded by the jury is grossly excessive.

Jones was an employee of the Granite Construction Company, which had a contract with San Benito County for the improvement of certain county roads, and among them a road known as Llewellyn-Bixby Lane, which meets, without crossing, the state highway between Hollister and San…