Breidenbach

This is an action for damages resulting from an injury suffered by plaintiff’s testate. The action was originally brought by deceased in her lifetime and, after her death and after the appeal was taken, the executrix of her last will was made plaintiff by substitution.

At the close of plaintiff’s evidence defendants moved for a nonsuit on the sole ground “that negligence on the part of the defendants has not been shown,” whereupon the court granted the motion and entered judgment in favor of defendants. Plaintiff moved for a new trial which was denied. The appeal is from the judgment and order denying plaintiff’s motion for a new trial.

The facts in this case are the same as in Breidenbach v. McCormick Co., 20 Cal. App. 184 , [ 128 Pac. 423 ], decided by this court, October 22, 1912. The plaintiff, Nellie Breidenbach, in that ease and her mother, Mrs. Remfree, plaintiff’s testate in the present case, were riding together and were injured at the same time and by the same cause as in the former case. At the oral argument it was suggested by appellant that there is a distinction between the two judgments rendered, in this—“In the Remfree ease (the pending ease) we are entitled to…