Botti

This action was brought by the plaintiffs to recover damages for death claimed to have been caused through the negligent operation of an automobile by the defendant.

The plaintiffs are the widow and minor children of Louis Botti, who was struck and killed by the defendant’s automobile while crossing the state highway in San Mateo County.

Defendant denied the alleged negligence and affirmatively charged the deceased with contributory negligence. The case was tried before a jury, which returned a verdict in favor of defendant. Motion for a new trial was made and denied, and this is an appeal from the judgment under section 953a of the Code of Civil Procedure. Insufficiency of the evidence and that the court erroneously instructed the jury to the prejudice of the appellants • are the grounds relied upon for a reversal.

The accident occurred about 11 o’clock P. M. on the night of December 26th, while deceased was crossing the state highway in San Mateo County at a point a few feet north of Ludermann Lane, Lomita Park. The highway runs north and south and the lane intersects it from the west.

There is evidence to show that the deceased on the night of the accident had entertained…