Roberts

This is an action to recover for personal injuries suffered by plaintiff while a passenger upon defendant’s ears. The cause was tried by a jury and plaintiff had a verdict for $5,760, on which judgment was entered accordingly. Defendant appeals from the judgment and from the order denying its motion for a new trial.

The complaint alleges that defendant was, at the times therein mentioned, operating a steam railway for the carriage of passengers and freight for hire, between the town of Tuolumne and the town of Jamestown in Tuolumne county, and also between Jamestown and the town of Angels in the county of Calaveras, and during all said times defendant was and now is a common carrier of persons and freight for hire; that on Jnne 26, 1906, defendant received plaintiff as a passenger on its said railway at the town of Tuolumne and, in consideration of the regular fare paid by plaintiff, the said defendant agreed to transport plaintiff as a passenger over its said lines from said Tuolumne to said Angels by way of said Jamestown; that plaintiff boarded the train of defendant at Tuolumne and proceeded to Jamestown and, on his said ticket purchased at Tuolumne, again boarded the train…

I dissent from the order denying a rehearing of this cause.

The trial court erred in refusing to give instruction No. 11, referred to in the opinion of the district court of appeal; As requested it reads as follows:

This instruction presented the sole and entire defense to the action, and there was evidence to sustain the hypothesis upon, which it was based, viz., a careful examination of the car at the time defendant received it upon its road (which was the day before the accident). The defendant had a right to invoke a finding of the jury upon this, its sole defense on the merits, and if the finding had been in its favor it was entitled to a verdict. (McCall v. Pacific Mail S. S. Co., 123 Cal. 42 , [ 55 Pac. 706 ].)