Ramsey

This is an action for damages by the widow and minor children of Irvin Edward Ramsey, who, they allege, was killed while crossing a public street in the city and county of San Francisco .through the negligent driving of an automobile by defendant Guiseppe Pasini. The defendant in his answer denied the material allegations of plaintiffs’ complaint, and as a separate defense pleaded contributory negligence. The jury rendered a verdict in favor of plaintiffs for the sum of $12,500. From the judgment thereon defendant appeals. It is his contention that there is sufficient evidence in the record to warrant a jury in finding for him on the issue of contributory negligence, but that this defense was prejudiced through inaccurate doctrines of law presented to the jury by the court in its instructions. It is also his contention that the court further erred in instructing the jury on a question of fact.

Among other instructions given on the subject of contributory negligence the court gave the following:

This is admittedly a correct statement of the law, but it is strenuously urged by appellant that such an. instruction should be given only when there is in the record no evidence of the…