This action was brought by the widow and six children of Florence Mahoney, deceased, to recover damages for his death, which they allege was caused by the negligence of the defendant.

A verdict of ten thousand dollars was rendered, and this appeal is taken by the defendant from the judgment and from an order refusing a new trial.

The defendant was engaged in operating a street railway on which cars were propelled by electricity, by the overhead or trolley system. The accident occurred on the old mission road—a public highway—within the city and county of San Francisco, at about 10 o’clock, upon a dark and foggy night. Deceased and three companions were driving along on the highway and took no pains to keep clear of the track, although there was sufficient space to enable them to do so. The driver testified at the trial: “The road was plenty wide „there; there was plenty of room to keep away from the track. I kept closer to the track than the gulch to be sure. I could not tell when I would strike a boulder in the road. 1 did not drive far enough from the track to clear the car; my intent was to clear the ditch on the right hand side without reference to the track. I did not aim to keep clear of the track at all. I depended upon the lights coming along so we could see it or hear something and then turn out of the way. I intended to rely upon hearing or seeing. I did not stop at any time to look or listen, for the reason I had people behind and depended upon them. The noise of the vehicle and of *475 the wind might to some extent interfere with my hearing an approaching car, but still we did not stop.”

The road at that point was descending at the rate of about two hundred and ninety feet to the mile, in the direction in which the party was traveling. Defendant’s car, coming up behind, was proceeding by gravitation down the grade at a rate variously estimated as from ten to twenty miles per hour. It struck the wagon in which deceased and his companions were, killed the deceased, and very seriously wounded two others.

Appellant contends that the judgment should be re-' versed because it was not shown that the deceased was without fault, and because it is so clear from the evidence that there was contributory negligence that no other rational conclusion can be drawn from it.

This contention cannot be maintained. The defendant had no exclusive use of any portion of the highway. Its right was to a use in common with the public, being peculiar only so far as its inability to move from its track made it so. Travelers upon the highway had a right to presume that it would use its franchise in view of the rights of others. If the light of the car was liable ■ to go out because the trolley frequently jumps the wire, other lights should have been employed; and, if an obstruction cannot be seen by its light in time to stop the car, it should move at less velocity. Other travelers should use reasonable diligence to avoid obstructing the track, and it may be that under some circumstances a jury would be justified in finding it negligent for one to travel along the track; but it certainly is not negligence ■ per se, and I see nothing in this case which would justify our reversing the verdict; on the contrary, I do not see how the jury could have found otherwise. The law applicable to the matter is correctly stated in Shea v. Potrero etc. R. R. Co., 44 Cal. 414 .

There was no error in giving or refusing instructions to the prejudice of appellant.

Appellant claims a great many errors of law committed by the court at the trial. Most of them seem to *476 be trivial. It was, however, in my opinion, clear error to allow plaintiffs to prove that the children of the deceased (plaintiffs here) had no means of their own. Such testimony could have been offered for no other purpose than to create prejudice, and should have been excluded.

I think the judgment must be reversed for irregularity on the part of the court. As appears from affidavits filed on the motion for a new trial, after the jury had been out for about four and one-half hours, they were brought into court, when the following occurred:

It will be seen that, after finding out that the jury stood eight to three, the court called attention to the fact that all the expense would fall on the plaintiff, who was not well off. The judge then said: “If the jurors who cannot agree upon a verdict differ,” etc. Who were these jurors ? For, evidently, certain jurors were meant, and not all. But the judge made this matter evident, for when a juror said: “ We do not understand what this gentleman wants to get at; he wanted to have your charge reread,” the court asked, “ What do the •other two say about it?” Why did he not say “the other eight ”; for they were as much failing to agree as the two. Evidently, it must have appeared to the jury that the court was insisting that the three, or one of them, should yield to the eight, for he proceeds to say *480 that plaintiff requires nine jurors. He only had eight, it seems; for why did he say plaintiff requires nine? Why not the defendant, or why specify either party? He finally said: “lam going to send you out once more, and give you a chance to try to agree. I think that when you appreciate the circumstances and situation of the parties you will make one more effort to do it.” The affidavit shows that the jury then returned a verdict of ten thousand dollars for plaintiff, in from ten to twenty minutes.

The judgment and order are reversed and the cause remanded.

Henshaw, J., and McFarland, J., concurred.

Hearing in Bank denied.