James

This is an appeal from a judgment for seventeen thousand five hundred dollars damages for personal injuries. The appellant admits that there is a conflict in the evidence upon the question of the negligence of the defendant ’ and that that issue may not be reviewed here. The appeal is based upon asserted errors in the giving of instructions to the jury.

The first instruction complained of is as follows: “The law imposed upon the defendant, Frazee, at the time and place of the accident, the duty of operating his automobile in a careful and prudent manner with due regard to the rights of others who might have the lawful use of the highways. If you believe from the evidence that the defendant Frazee failed in his duty in any of these respects, then and in that event he was negligent. ” It is urged that this instruction should have contained a statement of the standard of conduct of the average reasonable and prudent man. Other instructions are criticised for a like reason. It is urged with reference to several instructions that they apply one test to the duty of defendant and a different test to the duty of plaintiff, when the conduct of both should be governed by the same test.…