Shipley

From the record before us it appears that James F. Shipley, the husband of Mattie E. Shipley and father of Dorothy Louise Shipley, a minor, was killed at about 6 o’clock on the morning of February 8, 1927, in a head-on collision with a street-car belonging to appellant. The deceased was driving his automobile east on University Avenue in the city of San Diego, county of San Diego, state of California, with its wheels astride of or near the south rail of the track of the appellant. On this street at the point of collision there was but a single track, both fails of which were on the south half of University Avenue. Appellant’s street-car was being operated in a westerly direction by a motorman in the employ of appellant. There was also a conductor on the car.

Respondents sought to recover damages in this action, but after an extended trial the jury returned a verdict in favor of appellant. Respondents made a motion, for new trial, which was granted upon the particular grounds of errors in four instructions to the jury, requested by appellant and given by the court. The correctness of this order is the question to be considered on this appeal.

The first of these instructions was…