Balero

As the surviving widow and minor children of the decedent John Balero, the plaintiffs commenced an action to recover damages for his death. The defendant answered and the action was tried before the trial court sitting with a jury. The jury returned a verdict in favor of the plaintiffs and from the judgment entered thereon the defendant has appealed. After the action had been tried the entire record was burned in the fire that destroyed the courthouse at San Jose. The parties have stipulated to a copy of the judgment-roll and have stipulated to the facts constituting a bill of exceptions. On the record so made up this appeal was taken.

After the evidence was taken counsel made their arguments and thereafter the court instructed the jury. It gave numerous instructions tendered by the parties. Thereafter the trial court added some oral instructions. The defendant claims that said oral instructions were prejudicially erroneous. The proceedings were as follows:

Acting upon the request of the defendant, the trial court gave an instruction as follows: “In other words, if you shall find from a preponderance of the evidence that the defendant was negligent in the driving of his car, but…