Tiefel

This is an appeal from a judgment awarding to the ap-pellee damages for a personal injury suffered by her in the wreck of one of appellant’s passenger trains, upon which she was riding, between Los Angeles and San Diego, Cal. She was being carried upon a free pass, which contained a stipulation, signed by her, that in accepting it she agreed “to assume all risks of accident and damage to person or baggage in any circumstances, whether caused by the negligence of agents or otherwise.” By section 2175 of the California Civil Code it is provided that “a common carrier cannot be exonerated, by any agreement made in anticipation thereof, from liability for the gross negligence, fraud, or willful wrong of himself or his servants.” By both sides the ease was tried, and the court submitted it to the jury, on the theory that, upon proof that the accident resulted from gross negligence, the plaintiff was, and without such showing she was not, entitled to recover. Northern Pac. R. Co. v. Adams, 192 U. S. 440 , 24 S. Ct. 408 , 48 L. Ed. 513 ; Walther v. Southern P. Co., 159 Cal. 769 , 116 P. 51 , 37 L. R. A. (N. S.) 235.

At the close of the evidence, defendant duly challenged its…