Zumwalt

This was an action for damages for injuries sustained by plaintiff, when struck by an automobile operated by defendant’s employee, McNamee. The said McNamee, having died prior to the trial, the case proceeded against defendant E. H. Tryon, Inc., alone. The case was tried by a jury, which returned a verdict for plaintiff for $12,500; thereupon said defendant moved for a new trial, the same being denied, judgment was rendered for plaintiff and against said defendant for said sum. From this judgment said defendant appeals.

This accident occurred on the 21st of April, 1930, on the afternoon of a clear day, at a point on the Pacific highway, and according to the testimony of respondent’s witnesses about 150 feet south of a county road which enters said highway from the west known as the Bowman road. It appears that respondent and a boy named Davis were in charge of a band of sheep as herders, and had driven them through a gate and into a field some 50 feet south of where the said Bowman road enters said highway; that in doing this, one of the lambs escaped from the band and remained on said highway.

These two herders, aided by their dog, were endeavoring to chase the lamb from said…