Muther

This is an action in tort to recover damages for alleged negligence on the part of the defendant. The action grows out of the death of Anna Muther, who was the wife of Ernest Muther, plaintiff herein, caused by injuries received by her by being run over by an automobile owned and driven by the defendant. The plaintiff sues individually and as guardian ad, litem, for his minor children. Judgment was given on a verdict for plaintiffs for the sum of fifteen thousand dollars. The defendant has appealed, and assigns as error, among other things, certain instructions given by the court to the jury over the objections of defendant.

The trial court instructed the jury as follows:

This instruction evidently was prompted by the. provisions of section 22 of Act 2331b of the general laws of the state of California, which reads in part as follows:

We think this instruction was not warranted by the evidence as disclosed in the record. There is no evidence in the record that the view of the defendant was obstructed. On the contrary, the evidence of plaintiffs’ own witnesses is that there was nothing to prevent the defendant from seeing the de ceased. The only evidence relied upon by…