Negligence—Street Bailroad—Collision between Cars of Different Companies—Presumption of Negligence.—Where a passenger on the car of one street-railway company is injured as the result of a collision with a car of another company, no presumption of negligence on the part of such other company arises from the mere fact of the collision.

Id.—Liability for Joint Act of Negligence.—Where the negligence of the managers of both vehicles contributed to the injury, the party injured may recover from the proprietors of either or both.

Id.—Negligence when Question of Fact.—Negligence is a question of fact for the jury, even when there is no conflict in the evidence, if different conclusions upon the subject can be rationally drawn from the evidence.

Id.—Negligence of Motorman in Approaching Crossing—Failure to Slow Down of Car Having Bight of Way.—It cannot be held, as a matter of law, that a motorman having under his absolute control an electric ear of great power and weight, acted as an ordinarily prudent man and with the exercise of ordinary care, in approaching the intersecting track of another street-railroad, while a ear of such other road was approaching the intersection on a level track and was within a few feet thereof and in plain sight, in such manner and at such a rate of speed that he could not stop his car in time to avoid a collision in the event that the other car continued to advance upon its track to the intersection; and this is so, even though he knew that under an established custom of the two roads, his ear had the right of way and the other ear should stop and allow him to pass, and even although the other car had slowed down.

Id.—Sufficient Evidence of Negligence—-Passenger on Other Oar.— Evidence of such conduct on the part of the motorman of the car having the right of way is a sufficient showing of negligence to sustain a verdict in favor of a passenger on the other car who was injured as the result of a collision between the ears.

Id.—Amount of Damages.—Kimic v. San Jose-Los Gatos Interwrban My Co., ante, p. 273, approved, to the effect that the verdict in favor of the plaintiff is not excessive.

Id.—Instruction—Damages for Possible or Probable Injuries.—In an action to recover damages for personal injuries, where the evidence is conflicting as to whether the plaintiff was then afflicted with a certain disease by reason of the injuries received, and, if so as to the permanency of such condition, an instruction to the effect that the jury were the sole judges as to the extent and severity of the injuries, the then condition of the plaintiff in the respect specified and the probability of its permanency, and that in all these matters the burden was on the plaintiff to establish his ease by a preponderance of the evidence, which contains no intimation that damages might be awarded for future losses which were only possible or probable and not reasonably certain to ensue, is not erroneous.

Id.—Earning Capacity of Plaintiff—Evidence.—In such an action, after the plaintiff had testified without objection that his time and business and earning capacity before the accident was a certain amount a day, and that he had not been able to attend to business since the accident, it is not a prejudicial error to permit him to answer in the negative to a question whether since the accident he had been able to earn that amount in his business.

Id.—Evidence of Orders of Company to Motorman—Cross-Examination.—In an action against two railroad companies to recover damages for personal injuries occasioned to a passenger as the result of a collision between their respective cars, after a motorman of the car other than the one on which the plaintiff was riding, who was called by the plaintiff as a witness, had testified fully -on direct examination as to the custom between the two companies under which his employer’s cars had the right of way, evidence of the orders he may have received, from his company respecting the right of way at the crossing is incompetent and not proper cross-examination, and the sustaining of an objection to such evidence, interposed by the co-defendant alone, is proper.

Id.—Court May Exclude Incompetent Evidence.—Even in the absence of any objection, the court has the right to exclude proposed evidence which is incompetent and inadmissible for any purpose.

Id.—Bes Gesm—Statements Made by Motorman After Accident. —Where such motorman, on his direct examination, had testified that some seven or eight minutes after the collision he “spoke” to the man on the other ear, and that he had not discussed the accident with any one since its occurrence, and on cross-examination, admitted that immediately after the accident he had discussed the matter with the motorman of the other car, it is not proper, on cross-examination, to question him as to the substance of such conversation, if the object of the proposed evidence was not intended for purposes of impeachment. Such conversation was not part of the res gestae, and was incompetent and inadmissible as against the co-defendant.

Id.—Statement as to Cause of Accident.—A statement by the motorman of the ear on which the plaintiff was a passenger as to the cause of the accident, made about seven minutes after its occurrence, is hearsay and not part of the res gestae, and not admissible against his employer.

Id.—Graduate Nurse—Expert—Evidence as to Weakness of Patient.—A graduate nurse, who has been constantly engaged in the calling of a professional nurse for five years, may testify as an expert that the reason why he gave certain stimulants to his patient was because the patient was weak.

Id.—Evidence as to Conversation with Plaintiff and Third Person—Cross-Examination—Immaterial Evidence. — Such nurse, on direct examination, testified from memory to the condition of the plaintiff while he attended him, and on cross-examination by the appellant company he testified that he had burned his charts, which he always did unless the patient wanted them, and that when he left the plaintiff’s home he asked him if he wanted the charts, and that the plaintiff said he would not need them as there would be no lawsuit. On redirect examination by plaintiff, he testified without objection as to the remainder of the conversation between himself and the plaintiff, saying that the plaintiff told him therein that the reason there would be no lawsuit was that the vice-president of the co-defendant had promised to do the right thing by him and give him everything he wanted, and he thought he would do so. Ho further testified that such vice-president had called on the plaintiff while he was nursing him. On reeross-examination by the appellant he was asked if he, the witness, was present when the original conversation between the plaintiff and such vice-president took place. Selct, that the sustaining of an objection to such question was not erroneous; that the substance of such conversation between the plaintiff and such vice-president was not competent except in so far as it might tend to affect the weight of the evidence of the witness as to his reason for destroying the charts, and that as bearing on that matter, its exclusion was not prejudicial.

Id.—Medical Evidence—Shamming by Plaintiff..—Where a medical witness for the plaintiff had testified that he had no opinion to offer as to whether the plaintiff was now shamming any symptoms, it is not error to permit the plaintiff, in explanation of such testimony, to elicit further evidence from the witness that he had no intention to intimate that the witness was shamming, but that he meant that from a medical standpoint it was difficult and probably impossible to say whether or not he was shamming.

Id.—Permanency of Injury.—It was permissible for a medical witness for the plaintiff to testify that in the case of a man of sixty-two years of age, which was the age of the plaintiff, the chances were that the injury complained of would be permanent if a muscle or a blood vessel were ruptured, or if there were an extravasation of blood amounting to a quart, as to all of which there was evidence.

Id.—Erroneous Evidence of Damages Cured by Eemission from Verdict—New Trial.—The admission of indefinite evidence as to the amount of the medical expenses incurred by the plaintiff by reason of the injuries, is cured, if the plaintiff remits from the verdict the amount of such expenses, as a condition to the denial of a new trial.

Id.-—New Trial—Affidavits on Information and Belief—Misconduct of Jury.—An affidavit in support of a motion for a new trial on the ground of the misconduct of the jury, which is made solely on information and belief, is unavailing.

Id.—Affidavits of Jurors—Impeachment of Verdict.—An affidavit of a juror cannot be received to show misconduct of the jury, in order to impeach their verdict, except upon the single ground that the verdict was the result of a resort to the determination of chance. The same rule is applicable to the affidavits of third persons, detailing subsequent conversations with jurors tending to impeach their verdict.

Id.—Prejudicial Influence of Knowledge Acquired by Misconduct. —Jurors cannot be heard to deny the prejudicial influence on their minds of knowledge acquired by misconduct. Affidavits of jurors may be used to disprove or explain the alleged misconduct, but cannot, admitting the misconduct, be used to show that the verdict was not influenced thereby.

Id.—Immaterial Misconduct of Jurors.—A new trial will not be granted on account of misconduct of the jury, where such misconduct was of such trifling nature that it could not in the nature of things have been prejudicial to the moving party, and where the fairness of the trial has been in no way affected by such impropriety, the verdict will not be disturbed.

Id.—Collision of Street Cars at Crossing—Unauthorized Inspection of Brakes by Jury.—In an action involving the question of the liability of two street railroads for a collision of their respective cars at a crossing, in which no issue was involved respecting the sufficiency of the mechanism of the brake of the appellant’s car, it is not misconduct warranting a new trial for the jury, while on their way to visit the scene of the accident, under an order of court limiting their inspection to the crossing, to make a cursory examination of the brake mechanism of the appellant’s car on which they were riding.

Id.—Bemark by Juror During Inspection—Cause of Accident— Non-Assumption of Prejudice.—In such an action, a casual remark made by one of the jurors during the inspection at the time a car of the appellant was approaching the crossing, to the effect that “that is the way the plaintiff was injured, if the tracks were wet he could not have stopped his car before said crossing,” although reprehensible and in violation of the instructions of the court, cannot be assumed to have influenced the other jurors who may have heard it; and the trial court was warranted in assuming, so far as concerned the juror making the statement, that it did not necessarily show a prejudiced mind, or a desire to influence the other jurors, or to affect the juror’s mind in reaching a verdict.