Thorne

Mr. Chief Justice Murray concurred.

This was an action for damages for injuries sustained by the plaintiff in consequence of the overturning of defendants’ coach.

The complaint sets out a contract on the part of the defendants, in consideration of certain money paid by Mm, to convey the plaintiff safely from Illinoistown to the Franklin House, in Placer County, and avers that by reason of the carelessness and improper and unskillful conduct of the driver, the coach was overturned, and plaintiff seriously injured.

The errors assigned are : 1st. The refusal of the Court to non-suit the plaintiff on motion of defendant, because no contract on the part of defendants, or payment of fare by plaintiff, was shown.

It appears that before the accident, the driver was informed that a passenger was to get out at the Franklin House, and that after the accident, the agent of the defendants informed the driver of a coach which had been provided to convey the passengers from the scene of the overturning, that the plaintiff was to stop at the Franklin House. This was a sufficient recognition of the fact, that the plaintiff was a passenger, to establish prima facie the allegation of…