#### FOWLER, Respondent, v. ABERDEEN RAILWAY COMPANY, Appellant.

(171 N. W. 816).

(File No. 4481.

Opinion filed April 18, 1919.)

1. Appeal — Error—Injury to Automobile — Verdict for Less Than Claimed, Whether Prejudicial.

Under an assignment of error challenging sufficiency of evidence to sustain verdict in that it was for only $100 while defendant claimed it should have been for at least $160, if any verdict for .plaintiff was justified, held, that the alleged error .was not prejudicial to defendant, and furnished no basis for appeal.

2|, Appeal — Error—Negligence—Automobile, Injury to by Street Oar, Damages For — Instruction Re Obsolete Oars, Whether Prejudicial.

In a suit for damages to plaintiff’s automobile from injury by defendant railway, company’s street car, an instruction that a street railway company may not use old and obsolete cars that are difficult to control and without .good equipment to stop, and that if by such use injury is inflicted, when the use of a more modern or complete car with good equipment to stop, such as is generally in use, would not have caused the injury, then defendant company in using such old and obsolete car without good equipment to stop is guilty of negligence— while partially erroneous because there was no evidence that the street car was old or obsolete, yet presented the question whether the style of brakes on the car was obsolete!; and, in view of the evidence, tending to show that plaintiff’s automobile became stalled on defendant's track, that failing to start the car,-.plaintiff ran forward and signaled the motor-man on defendant’s approaching street car, to stop the car; the evidence being conflicting as to both defective equipment, and operation of, the car; held, said instruction could not possibly have influenced jury, or if it could, it was not prejudicial.

3. Same — Instruction Re Motor-mam’s Duty to Signal Approach, Whether Prejudicial.

Held, further, that an instruction that it is defendan mortormen’s duty when running its cars through the streets of the city to give timely notice of approach of the car by usual and ordinary signal, and that if jury believed from evidence that the motor-man in question failed to exercise any of said duties, and 'by reason of such failure the car collided with plaintiff’s automobile, and damage resulted therefrom, they should find for plaintiff, was, if erroneous, withbut prejudice. :'

Appeal from the municipal court of the City of Aberdeen. Hon. A. L. McNaughton, Judge.

*564Action by George Fowler, against the Aberdeen Railroad Company, a corporation, to recover damages for injury to plaintiff’s automobile by defendant’s street car. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Affirmed.

*Campbell &*Walton, for Appellant.

*Van Slyke & Bartlett,*for Respondent.

(i) To point one of the decision, Appellant cited:

Scheuer v. Manashaw, 137 N. Y; S. 534.

Respondent cited:

■ Evans v. Koons, 38 N.. E. 350,; Fisher v. Holmes, 24 N. E. •377-

GATES, J.

Action for damages to plaintiff’s automobile ..caused, by a street car of defendant company. Judgment for the sum of $100 and costs was entered in favor of plaintiff. From the judgment and an order denying a new trial, defendant appeals. The evidence tended to show that plaintiff’s automobile became stalled on defendant’s track;' that the street car was approaching; that, failing to start the car, plaintiff ran forward and raised his arms as a signal to the motorman to- stop the street car. The important question in the case was whether the motorman should reasonably have stopped the car before it collided with the .automobile. The complaint alleged negligence in the use of defective equipment of the street car and in the operation of the street car, and there was some conflict in the evidence as to both 'propositions. Three errors are assigned. The first relates to the .giving of this instruction to the jury:

> *“A*street railway company is required to use cars that will not unduly endanger the lives of pedestrians, whether afoot or in vehicles, using the streets and crossing' its tracks. It may not use old and obsolete cars that are. difficult to control and without good equipment to stop, and- if by such use ■'án injury is inflicted, when the use of a more modern or complete car with good equipment to stop, such as is generally in use, would ,not have caused the injury, then such company in the use of such old and obsolete car, without good, equipment to stop it, is guilty of negligence.” ■

The second error relates to. the giving of this instruction: •

> *565“It is .the-, duty of the defendant’s motorman, when- running the defendant’s cars through the streets of the city of Aberdeen, **** * to give timely notice of the approach of the car by the usual and ordinary signal, and if you shall believe from the evidence that the motorman in charge of the car which collided with the automobile of the plaintiff failed to exercise any of these duties, and by reason of such failure.the car collided.with the automobile of the plaintiff, and -the damage resulted therefrom, - then you should find for the plaintiff.”

The third challenges the sufficiency of the evidence to sustain the verdict in that the verdict was for only $100, while the defendant claims that the verdict should have been for at least $160, if any verdict was to be returned for plaintiff.

[1] Manifestly, the last alleged error was not prejudicial to defendant; it therefore furnishes no..basis for an appeal.

[2] -The first instruction was .partially erroneous because there was no' evidence that the street car was old or obsolete. There was presented, however, the question whether the style of brakes on the car was obsolete.

[3] The instruction as , to the failure of the motorman to signal the approach of the street car' was wholly -unwarranted, but it was utterly irrelevant to the issues. A careful consideration of the evidence and all of the instructions given to the jury fails to convince us that either of the instructions excepted to could possibly have influenced the jury in arriving at their -verdict. If they could not, they were not prejudicial.

The judgment and. order appealed from are affirmed.