No. 2,296.

#### WM. LARGAN, (Administrator of the Estate of Ed. Largan, deceased), Appellant, *v.*CENTRAL RAILROAD COMPANY, Respondent.

Evidence. — Pbovince op Juey. — Witness.—The deduction of conclusions from facts proved is not the province of a ■witness but of a jury; such evidence is purely matter of opinion-and not the statement-of a fact, and should be excluded.

Appeal from tbe District Court of tbe Fourth District, City and County of San Francisco.

Defendant is a railroad corporation, and tbe complaint alleges tbat, on tbe 21st day of May, 1868, tbe defendant by its servants, workmen or agents, was running and propelling a car on its road along Turk street near Larkin street in tbe city of San Francisco; and tbat tbe defendant by its servants, workmen and agents, or some one of them, then and there so carelessly and negligently conducted, managed and propelled tbeir said car, tbat tbe car with tbe borses attached thereto, ran against, knocked down and ran over tbe deceased Edward Largan, without any fault or neglect on bis part, wounding and lacerating him and Crushing him beneath tbe wheels of tbe-car, and otherwise injuring him so tbat be died.

Tbe cause was tried by a .jury, who returned a verdict for defendant. Plaintiff moved for a new trial. which was denied, and from tbe judgment and order overruling plaintiff’s motion for a new trial, this appeal is taken.

Tbe other facts are stated in tbe opinion.

*F. A. Lawrence*and *C. H. Sawyer,*for Appellant.

*First*— Tbe driver was guilty of gross negligence by leaving bis team and collecting tbe fare. *(Mangan*v. *Broolclyn Railroad*Company,.38 N. Y. 460.)

*Second*— The company was guilty of gross negligence in leaving tbe car in charge of only one driver.

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      *Third*— Fault will be inferred merely from tbe injury, tbe defendant being a common carrier. *(Terry*v. *N. Y. Central Bailroad Company,*23 Barb. 574.)

*Fourth*— Negligence cannot be imputed to tbe child. A child seven and a half years of age is not expected to exercise foresight. It is only expected of persons of maturer years. *(Lynch*v. *Murdin,*41 Eng.; Com. Lad. 422; *Daly*v. *Norwich B. B. Co.*26 Conn. 591; *Bobinson*v. *Cone,*22 Yermont; *Honesburgher*v. *The 2d Av. B. B. Co.*33 How. Pr. 195; *Mangan*v. *Brooklyn B. B. Co.*38 N. Y. p. 457.)

*Tifth*— Tbe parents were not guilty of negligence. *(Man-gan y. Brooklyn B. B. Company,*38 N. Y. 455; 36 Barb. 230.)

*Sixth*— Tbe Court erred in refusing to permit plaintiff’s counsel to prove that it was a common practice for children along Turk street to run after tbe cars, and get upon tbe platforms, and that said practice was induced by tbe fact that tbe cars bad no conductor, and often were propelled without a driver.

*A- J. Gunnison,*for Eespondent.

*First*— Tbe question as to whether or not tbe deceased was of such age and intelligence as to be capable of exercising foresight and care, or could be guilty of negligence, was properly left to tbe jury under tbe evidence. That a child seven and one half years of age is or is not capable of exercising such care is a fact to be left to tbe jury to decide on tbe whole evidence. (See *Mangan*v. *Brooklyn Bailroad Co.*38 N. Y. 460; 33 Howard’s Eep. 195.) This question was left to tbe jury in this case on tbe evidence produced, under such instructions from tbe Court on request of plaintiff, and no exceptions were taken to tbe charge of tbe Court thereon.

*Second*— Tbe evidence shows that both tbe plaintiff and tbe deceased were guilty of carelessness and negligence, which directly contributed to tbe injury, and tbe plaintiff cannot recover in this action. *(Kline*v. *C. P. B. B. Co.*37 Cal., p. 407; *Gay*v. *Winter,*34 Cab, p. 153, and *274cases there cited; 20 N Y. p. 69; 32 .Barb., p. 657; 33 Barb., p. 429 ; 36' Barb., p. 230.

*Third*— The Court will not disturb the verdict where there is a substantial conflict in the testimony, and no rule of law appears to have been violated. *(Bice*v. *Gunningham,*29 Cal., 492; *Kile*v. *Tubbs,*32 Id. 332; *Feterie*v. *Bugbey,*24 Id. 419.)

Ceockett, J.,

delivered the opinion of the Court, Ehodes, C. J., and Wallace, J. concurring:

This is an action for damages for the alleged negligence of the defendant, resulting in the death of the plaintiff’s son, a child seven years old. The cause was tried before a jury, which returned a verdict for the defendant; and we discover nothing in the record which would justify us in disturbing the verdict. The only ruling of the Court on the trial which is complained of was in respect to the exclusion of certain testimony by the witness, McMahon.. The plaintiff proposed to ask this witness whether it was not the daily practice of the defendant’s cars to run along without a driver, and .whether this fact did not induce a practice among the children along that street to run along with the cars and get upon the platform. It was wholly immaterial in this case whether it was the usual practice of the defendant to permit its cars to run without drivers, inasmuch as it clearly appears that, on the occasion when the plaintiff’s son was killed, the car was *not rwming*without a driver. On the contrary, all the evidence shows that there was a driver aboard the car, and that at the time of the accident he had stepped back into the car to collect the fares. Nor was it possible for the witness, even if the practice of running the cars without drivers prevailed, to state whether this practice induced the children to get upon the platform. It would have been purely a matter of opinion, and'not the statement of a fact. It was the province of the jury, and not of the witness, to deduce conclusions from the facts proved.

*275Judgment affirmed.

Sprague, J., expressed no opinion.

Mr. Justice Temple, being disqualified, did not participate in tbe decision.