Parkin

The cause of action is for damages arising out of the alleged violation of the following ordinance of the city of Oakland: “No person shall leave or allow any horse or mule to he or remain standing upon any of the public streets of the city of Oakland unless such animal is in some way properly secured either by hitching or being under the personal control of some person of suitable" age.” This .is the second appeal taken- by the defendant in the .case and is from the judgment and order denying motion for a new trial in an action for personal injuries. The decision on the first appeal is reported in 157 Cal. 41 , [ 106 Pac. 210 ].

In its opening brief appellant makes a statement of facts which is sufficient to give an understanding of the case, although respondent says that it is inaccurate in some not very important matters, inasmuch as the errors claimed relate to instructions given or refused. We shall use the statement as made by appellant:

1. It is contended that the court erred in giving the following instruction, number 22:

The evidence was that the strap was fastened in the bit of the black horse next to the telegraph post.

Appellant makes several objections to this…