George

As a result of a collision between two automobiles, one of which was owned by Joseph McManus and the other by plaintiff, that of the latter was badly broken and injured. Plaintiff, alleging that the injuries to his car were caused by the negligence of McManus, brought this action to recover damages therefor. Pending suit defendant Mc-Manus died, and upon motion of plaintiff, made under section 385 of the Code of Civil Procedure, the personal representatives of McManus were substituted as defendants.

Judgment went for plaintiff, from which, and an order denying their motion for a new trial, the substituted defendants prosecute this appeal.

In addition to their answer denying the material allegations of the complaint, defendants filed a counterclaim alleging that in said collision and by reason of the negligence of plaintiff in operating his car he caused it to collide with the automobile of Joseph McManus, by reason whereof it was broken and injured and for which they asked judgment against plaintiff for the damages so alleged to have been sustained.

Appellants insist that upon the death of defendants’ testator the action abated, and therefore the court should have granted a…