Bethurum

This is an action for damages resulting from an alleged assault and battery upon the person of the respondent by the appellant. The record shows that on the fifth day of September, 1928, the parties hereto had an argument in the council chambers of the board of trustees of the city of Redlands. They afterward met in a public market in the city of Redlands and an altercation followed which resulted in an affray and this action for damages. A trial was had before a jury, which returned a verdict in favor of the respondent in the sum of $400. Appellant made a motion for a new trial, which was denied. He then appealed from the judgment and from the order denying his motion for a new trial. Since the amendment of section 963 of the Code of Civil Procedure in 1915, an appeal does not lie from an order denying a motion for new trial.

Appellant relies upon two grounds for a reversal of the judgment. He maintains that the evidence was not sufficient to support the judgment and complains of two instructions given by the court. Under his first contention there is presented a very usual state of facts, in that the evidence for the two parties is directly conflicting. In deciding this point…