Vance

The plaintiff appealed from the judgment, awarding him nothing, that followed as a matter of course a jury’s verdict of “for the dependant . . . and against the plaintipf . . . .” On his appeal he makes but one contention that the trial court prejudiced his case before the jury by the giving of a certain instruction. The plaintiff has failed, however, to make any of the evidence a part of the record on appeal, so we are in no position to judge, first, if it was error to give the instruction and, then, if it was error, whether it was prejudicial, warranting a reversal. As a consequence, we are affirming the judgment.

The action is one in which the plaintiff sought to recover over $125,000 occasioned by an accident allegedly caused by defendant’s negligence. The defendant not only denied the negligence but pleaded four affirmative defenses, the fourth being a complete release executed by plaintiff for valuable consideration paid him by the defendant. The release relied upon was in writing and was set forth in full in defendant’s answer. So far as appears, its genuineness and due execution were not denied, and so stood admitted (Code Civ. Proc., § 448), but it could, nevertheless,…