Straten

The action was for damages for personal injuries alleged to have been caused by the negligent driving of an automobile by defendant, Elizabeth Spencer, on the main street of Placerville on August 24, 1918. The machihe collided with plaintiff while he was crossing the street on foot. The answer denied any negligence by, said defendant, pleaded contributory negligence on the part of plaintiff, and by way of cross-complaint said defendant asked damages from plaintiff for injuries suffered by her in consequence of his negligence. The verdict of a- jury was in favor of plaintiff for the sum of $5,000, and the appeal from the judgment is under the alternative method.

Appellants state that the appeal "is based upon the errors made by the court in modifying and giving instructions, and because of the insufficiency of the evidence to justify the verdict and because of excessive damages appearing to have been given under the influence of passion and prejudice. ’ ’

We may follow the example of appellants and consider first the last mentioned assignment. There was no motion for a new trial, as is usually the case, and therefore the point was not presented to the trial judge. In considering…