2. APPEAL-MOTION BY APPELLEE TO AFFIRM-COMP. LAWS N. M. ? 2189.

Where the appellate court has stricken from the files the record and bill of exceptions filed by the plaintiff in error because not signed and sealed by the judge who heard the cause, and who is out of office, and defendant in error tiles a transcript of the record which does not show that an appeal has been allowed, or writ of error issued, and moves to affirm under Comp. Laws N. M. 2189, such motion will be denied.

Appeal from district court, First judicial district, sitting in the county of Colfax.

Wm. Breeden, Atty. Gen., for appellee. Fiske & Warren, for appellant.

PER CURIAM. On a former day of this term we struck from the files the record and bill of exceptions filed by plaintiff in error, because the same were not signed and sealed by the judge before whom the judgment was obtained. 12 Pac. Rep. 625. Plaintiff in error now asks us to order the court below to grant him a new trial for the reason that, by the resignation of the judge before whom the cause was tried, he has been deprived of his record and bill of exceptions, and therefore prevented from having the judgment of the lower court reviewed.

The record having been stricken out, leaves the cause in this court as if no attempt had ever been made to file such record here. In this state of the case, defendant in error comes and files a transcript of the record, and a motion to affirm, under the terms of section 2189, Comp. Laws. We must deny the motion of the plaintiff in error, because before the filing of the transcript, and motion by defendant in error, there was nothing in this court upon which we could act. If the bill of exceptions alone had been stricken out, leaving the record proper here, then a different view might be taken of the question; but in the present condition of the case we cannot see our way clear to give plaintiff in error the relief he seeks without abrogating the rules governing the bringing of causes to this court. The motion of defendant in error must also be denied, because the transcript filed by him does not show that an appeal has been allowed, or writ of error issued in the cause. Section 2189, Comp. Laws, 1884.

(2 Cal. Unrep. 740)

KIRBY 2. HARRINGTON. (Supreme Court of California. APPEAL-DAMAGES ON DISMISSAL.

(No. 12,011.) February 15, 1887.)

On the dismissal of an appeal, damages will not be awarded in the respondent's favor on his ex parte affidavit that he has been informed and believes the appeal to be without merit.

Department 1. Appeal from superior court, San Francisco. Mortgage foreclosure.

A motion to dismiss the appeal was made upon a certificate, in the form required by rule 4 of the court. It was not contended that the certificate was insuflicient. The only opposition of appellant was to the imposition of damages. Respondent's (plaintiff's) affidavit was to the effect that the action was brought to foreclose a mortgage; that defendant admitted a balance due, for which judgment was entered; that plaintiff was about to enforce the judgment by proper process, when defendant took an appeal, December 20, 1886, and more than 40 days elapsed since appeal was perfected: that plaintiff was put to the expense of extra counsel fees; "and affiant is informed, and on such information avers, that said appeal is wholly without merit, and taken solely for the purpose of delay." Prayer for damages.

Matthew I. Sullivan, for appellant. John J. Coffey, for respondent.

BY THE COURT. The certificate of the clerk of the superior court is in due form, and the appeal should be dismissed. But the application of respondent

for damages on appeal must be denied. We are not authorized to decide an appeal to be frivolous on the ex parte affidavit of respondent that he has been informed and believes it to be without merit. Vaughn v. Werley, 62 Cal. 181. Appeal dismissed.

(72 Cal. 120)

WILLIAMS v. SOUTHERN PAC. R. Co. (No. 9,272.)

(Supreme Court of California. February 25, 1887.) NEGLIGENCE-RAILROAD COMPANY-PERSON ON TRACK-STOPPING TRAIN-NONSUIT. Plaintiff was struck by a train while lying beside a railroad track. The engineer testified that, when approaching the place of the accident, he first saw a bundle of blankets, and kept his eye on it for about half a minute before he saw plaintiff; that he then did his utmost to stop the train as quickly as possible, sounding the whistle, among other things. It was claimed that he should not have sounded the whistle, as, by doing so, he lost time in stopping the train. Held, upon a rehearing, that there was no evidence of negligence on defendant's part to go to the jury.1 In bank. Appeal from superior court, Monterey county.

On reargument. See 11 Pac. Rep. 849.

S. F. Geil and H. V. Morehouse, for appellant. D. M. Delmas, for respond

ent.

TEMPLE, J. After reargument, we still adhere to the former conclusion in this case. As the motion for nonsuit was not granted, the court will now examine the testimony in the whole case in reviewing the ruling of the court. It does not become important now, therefore, to inquire whether the case was one which ought to have been taken from the jury, on the proposition that, when the evidence is not conflicting, the question as to contributory negligence is a question of law for the court. There was a motion for a new trial, and a statement of the case, and the point was there made that the evidence was insufficient, because it failed to show negligence on the part of the defendant, and did show that the injury was caused by the negligence of the plaintiff. On the whole case, can the judgment be sustained? This really depends upon the inquiry as to whether there was a real conflict in the evidence on the point of negligence.

It is admitted that the plaintiff was grossly negligent, and that such negligence contributed to the accident; but it is claimed that, notwithstanding such gross negligence on the part of plaintiff,-in fact, in consequence of the danger to plaintiff occasioned solely by his own gross negligence, the defendant owed him a certain duty, which it failed to perform, and that the injury would not have been received if such duty had been performed.

Counsel concedes that the defendant did not owe plaintiff, who was a trespasser upon its roadway, the duty of looking out for him. It had a right to assume that no trespasser would be on its track. If, for instance, the engineer had been reading instead of being on the lookout, and therefore had not seen the plaintiff, and in consequence had run over and crippled him, the defendant would not have been liable, although it were admitted that had the usual lookout been kept up the engineer would have seen plaintiff, and would easily have prevented the accident.

Taking the admitted negligence of the plaintiff as a premise, i. e., as a circumstance, in view of which the defendant is to be judged, did the defendant, even then, fail in some duty which it owed the plaintiff? This will depend upon two propositions: Did the engineer, as a matter of fact, see the plaintiff, helpless or unjudging, in a dangerous position, in time to have stopped the train? And, having so seen him, did he use ordinary diligence to stop the train?

'As to the liability of railroad companies for injuries sustained by trespassers on their tracks, see Little Rock, M. R. & T. Ry. Co. v. Haynes, (Ark.) 1 S. W. Rep. 774, and

note.

The plaintiff was lying beside, not on, the track. There were weeds where he was lying, but not sufficient to prevent his being seen. The plaintiff proved that such an object might have been seen in that position at a distance of 400 or 500 yards by the engineer, if he had been looking for it. After the accident, the plaintiff was picked up about 15 feet from the crossing; and there was a clot of blood on the rail at the crossing. The whistle was sounded 400 or 500 feet from the place of the accident, and the engine was stopped right abreast of where the plaintiff was lying. It appears that the plaintiff, besides having his foot crushed, was injured somewhat on his head and one shoulder. Here the evidence on the part of plaintiff really ended. Plaintiff's own testimony was more favorable to the theory of the defendant. He thought he was sitting on the end of a tie outside the track. There is here no evidence whatever that the engineer saw plaintiff, except the fact that the train was stopped, and no evidence of want of diligence. The engineer, however, testified for defendant that, when he approached the place of the accident, he first saw the bundle of blankets by the road, and kept his eye on it for about a half minute before he saw the plaintiff. That, as soon as he saw that the plaintiff was in a dangerous position, he used every effort, and as quickly as possible, to stop the train. There is no conflict as to what the engineer did, unless it consists in the fact that it is shown that he sounded the whistle; by doing which, it is claimed, he lost time in stopping the train. But we cannot now say that any time was lost by this, or that it was not proper, under the circumstances, both as an alarm to plaintiff, whom the engineer did not know to be absolutely unjudging, and notice to the train hands to assist at the brakes. Then, the engineer was not called upon for the highest possible diligence, but only for ordinary diligence; and even should it appear in judging afterwards that. something different might perhaps have been better, it would not make the case against the defendant. We do not think there is here a substantial conflict, if it can be said that there is a conflict at all. The rule is not, as counsel seems to suppose, that any degree of conflict in the evidence, however slight. will avail to support a verdict and judgment on appeal. Where we can plainly see that the conflict is not a substantial one, we do not hesitate to interfere. Indeed, the testimony of the witnesses in the case discloses no conflict a all. The evidence, which it is claimed tends to prove neligence on the part of the engineer, consists simply of inferences, which are uncertain and remote, and required considerable ingenuity on the part of counsel to make apparent. Admitting the general rule to be that the case will not be taken from the jury, where there is any evidence tending to show negligence capable of producing any degree of uncertainty, we think, even tested by that rule, a new trial ought to be granted in this case.

Judgment and order reversed, and a new trial ordered.

We concur: MORRISON, C. J.; PATERSON, J.; MCFARLAND, J.

I concur in the judgment: MCKINSTRY. J.

I dissent: THORNTON, J.

(72 Cal. 124)

PACKARD . WILSON and others. (No. 9.459.)

(Supreme Court of California. March 1, 1887.)

COSTS-PERCENTAGE-DEMURRER.

A case litigated on demurrer comes within St. Cal. 1865-66, p. 68. providing that a percentage of 5 per cent., to the extent of $100, may be allowed to the prevailing party for costs in litigated cases.

Department 2. Appeal from superior court, San Francisco.

This was an action to foreclose a lien on a promissory note. The complaint alleges that on the eleventh day of August, 1883, the defendants John D. Wilson and John Elbert jointly made their certain promissory note, as follows:

"$6,738.96.

SAN FRANCISCO, August 21, 1883.

"On the twenty-first day of October, 1883, without grace, for value received, we jointly and severally promise to pay to A. Packard or order, the sum of six thousand seven hundred and thirty-eight 96-100 dollars, in U. S. gold coin, with interest thereon from date until paid, at the rate of one per cent. per month. JOHN D. WILSON. "JOHN ELBERT.'

-And did then and there deliver the said promissory note to the said plaintiff; that the said plaintiff is now the lawful owner and holder of the said promissory note; that no part of the said promissory note, or of the interest thereon, has been paid; that there is now due and unpaid to the said plaintiff on said promissory note the sum of $6,738.96, with interest from August 21, 1883, at the rate of 1 per cent. per month; that the said defendants, to secure the payment of the said promissory note, according to the tenor thereof, did, at the same time, assign to the plaintiff all their right, title, and interest in a certain promissory note, then and now in the possession of plaintiff, of the Mono Lake Hydraulic Mining Company, bearing date the thirteenth day of November, 1882, the following being a copy of the same with the several indorsements thereon:

"$45,241.60.

SAN FRANCISCO, November 23, 1882.

"Six months after date, for value received, the Mono Lake Hydraulic Mining Company Corporation promise to pay to D. E. Jones, J. D. Wilson, and John Elbert, the sum of forty-five thousand two hundred and forty-one 60100 dollars, being eight thousand eight hundred and seventy-one 68-100 dollars to D. E. Jones; eighteen thousand one hundred and eighty-five 26-100 dollars to J. D. Wilson; and eighteen thousand one hundred and eighty-five 26-100 dollars to John Elbert,-with interest thereon at the rate of one per cent. per month from date until paid. Any payments made on this note are to be divided to and among the said Jones, Wilson, and Elbert, in the proportions of their respective amounts as aforesaid.

[Corporation Seal.]

"MONO LAKE HYDRAULIC MINING COMPANY,
"By CHAS. H. SINCLAIR, Vice-President.

"SAN FRANCISCO, February 20, 1883. "I hereby assign and transfer my interest in the within note to D. E. Jones, as security for the payment of the note or obligation of $9,185.26 this day executed by me to said Jones. JOHN ELBERT. "SAN FRANCISCO, March 3, 1883.

"I hereby assign and transfer my interest in the within note to Albert Packard, as security for the payment of the note or obligation of $7,000 this day executed by me to said Packard. JOHN D. WILSON."

That no part of the principal or interest of the said last-mentioned note has been paid, nor is the same yet due, the payment of the same previous to its becoming due having been extended by the payees unto the thirteenth day of May, 1884.

The plaintiff prayed judgment against the defendants, jointly and severally, for the sum of $6,738.96, with interest at the rate of 1 per cent. per month from the twenty-first day of August, 1883, and that all the interest of the defendants in the said note of the Mono Lake Hydraulic Mining Company, so assigned to plaintiff, be sold according to law, and the proceeds of such sale

applied in payment of the amount due plaintiff, and that plaintiff may have judgment and execution for any deficiency, and that plaintiff may become a purchaser at such sale, and that he be awarded the costs of this action.

The defendants demurred on the grounds that (a) the complaint alleges that defendants made a note, dated August 11, 1883, and recites a note dated August 21, 1883. (b) It does not appear whether the note for $6,738.96, copied in the complaint, is the note sued upon. (c) It does not appear whether the assignment, by way of security, was made on the eleventh or twenty-first day of August, 1883. The demurrer was overruled, and judgment was rendered decreeing sale of the note. And defendants filed the following bill of excep

tions:

"Be it remembered that, after judgment ordered in this action, and in due time, the plaintiff duly filed and served a memorandum of costs and disbursements, and that one of the items thereof is as follows: 'Percentage allowed by law on judgment of $7,053.61, $100.' That within five days thereafter the defendants moved to have the plaintiff's said bill of costs taxed, and to strike out therefrom the said item of $100, on the grounds-First, that the action was brought to foreclose a lien, and was not an action wherein percentage is allowed by law; second, that no issue of fact was raised in said action, and the same was not a litigated case. The said motion was made upon the papers on file. That said motion came regularly on for hearing on the twentyfifth day of January, 1884; and the same, after being heard, submitted, and considered, was by the court denied; to which ruling and decision the defendants then and there duly excepted."

Wm. & Geo. Leviston, for appellant. J. T. Fleming and A. Packard, for respondent.

BY THE COURT. The complaint is sufficient. The case was litigated on demurrer, and the sixth section of the statute of February 9, 1866, (St. 1865– 66, p. 68,) applies to it. We think it proper to say that it was conceded on the argument by both parties that the statute above referred to is still in force. We decide the case on this concession, and hold nothing as to whether the statute is in force or not.

Judgment and order affirmed.

(2 Cal. Unrep. 701)

PEOPLE v. BROWN and another. (No. 20,177.)1

(Supreme Court of California. September 1, 1886.)

1. JURY-CHALLENGE-EXCEPTIONS.

No exception lies to a ruling denying a challenge to a juror for actual cause. 2. EVIDENCE-MEDICAL EXPERT-PERSON'S ABILITY TO MAKE AFFIDAVIT.

Upon trial of an indictment for preparing a false affidavit, held proper to ask medical experts whether the person making the affidavit, who was ill at the date thereof, was at the time able to make such a statement as appeared in the affidavit.

In bank. Appeal from superior court, San Francisco.

Defendants were informed against, under section 134, Pen. Code, for the crime of preparing a false affidavit, to be used on the hearing of a motion for new trial in the case of Sharon v. Sharon, then pending in superior court, San Francisco. They were convicted. Defendant Brown was a notary public, and the affiant, one Isabella Clark, was a patient in the almshouse of the city and county of San Francisco. The affidavit was prepared by an attorney here, and Brown was requested by the attorney to go to the almshouse, and

The delay in the publication of this case was caused by our inability to obtain at an earlier date such a statement of the facts as we considered necessary to a satisfactory report.