Cunningham

Plaintiff sought to recover damages for the death of his minor son, Charles N. Cunningham, Jr., alleging that said death was caused by the negligence of the defendant in operating his automobile. Defendant denied any negligence on his part and pleaded contributory negligence on the part of the deceased boy. The cause was tried with a jury and a verdict was rendered in favor of the defendant. From the judgment entered upon the verdict plaintiff appeals.

The accident occurred at approximately 7:20 on the night of January 29, 1931, on the Saratoga-San Jose road. This road runs in a general westerly direction through an orchard section of Santa Clara County from San Jose to Sara-toga. A short distance westerly from the scene of the accident said road is intersected by the Saratoga-Mountain View road. There is an interurban ear track in the center of the road situated in the middle of a strip of asphalt surfacing about nine feet in width. The balance of the improved portion of the road consists of two concrete strips, each about ten feet in width, located on either side of and immediately adjoining the asphalt strip. Both the defendant and the deceased boy lived in the vicinity of the…