Runnels

This action was prosecuted by the heirs at law of John W. Runnels, deceased, to recover damages from the defendant for having unlawfully occasioned his death. The appeal presents hut a single point. Herein the appellant contends that the evidence established as matter of law the contributory negligence of the deceased, and that the court therefore erred in not instructing the jury to that effect and directing its verdict.

The following are the facts: Defendant operates a double track line of electric street railway along Haight Street, in the city and county of San Francisco. Haight Street extends easterly and westerly and is bisected by Pierce Street and to the west of Pierce Street by Scott Street, distant 412% feet therefrom. ■ The bisecting • streets cross Haight Street at right angles. The accident occurred on the evening of January 4, 1912, near 6 o’clock P. M. It was dark. Deceased, who was a teamster, at the end of his day’s work, was driving a gentle team of horses attached to a heavy sand wagon, coming from the north on Pierce Street to cross Haight Street. He had proceeded on his way until his horses were upon the southerly tracks of the electric line on Haight Street,…