Meier

The defendant appeals from a judgment for five thousand dollars entered on the verdict of a jury as damages for the death of Mrs. lone Smith, aged twenty-three years, as the result of injuries sustained by her while a passenger on an automobile stage, negligently operated by an employee of the appellant in its business as a common carrier of passengers. The action was prosecuted under the provisions of section 377 of the Code of Civil Procedure, by the mother of Mrs. Smith, in her capacity as administratrix of her daughter’s estate with the will annexed.

The appellant admits the character of its business and that its employee in charge of its stage was negligent. The evidence shows beyond cavil that he did not exercise ordinary, nor, indeed, any care or diligence, to avoid the railroad crossing collision, in which he was instantly killed, and Mrs. Smith, the only other person on the stage, received the injuries which shortly thereafter caused her death. The appellant contends that Mrs. Smith was not a passenger for reward and that under the pleadings there was no right of recovery if its contention in this regard can be sustained. At the time of the accident Mrs. Smith was in…