[Civ. No. 2953.

First Appellate District, Division One.

November 8, 1919.]

#### LESTER CHARVES, a Minor, etc., Respondent, v. SAN FRANCISCO-OAKLAND TERMINAL RAILWAYS (a Corporation), Appellant.

[1] Negligence—Action fob Personal Injuries—Evidence.—In this action for damages for personal injuries sustained by plaintiff, a child of the age of five years, as the result of an accident in which he was struck by one of the cars of the defendant street railway company, the evidence was sufficient to sustain the finding of the jury as to the defendant’s negligence in the operation of its car, and that such negligence was the proximate cause of the plaintiff’s injury.

[2] Id.—Bate of Speed—Questions of Fact.—In such action, what the actual rate of speed of the ear was at the time and whether or not such rate of speed was an undue rate of speed for cars to be operated upon the street in question were questions of fact for the jury.

[3] Id.—Contributory Negligence of Minor—Question for Jury.— Whether or not a minor has in a given ease been guilty of contributory negligence so as to prevent' his recovery in an action to recover damages for his injury is a question of fact for the jury.

[4] Id.—Last Clear Chance—Tender of Issue—General Aver- • ment OF Negligence.—In an action for damages for personal injuries the doctrine of last clear chance is one of the issues which the plaintiff tenders when he makes his general averment

1. Duty of driver of street-car to anticipate crossing of track by pedestrian, note, Ann. Cas. 1915A, 216.

2. Injury to children by speed of ear, note, 25 Ii. E. A. 664.

4. Origin, function, and mode of operation of doctrine of last clear chance, note, 55 L. E. A. 418. *222as to the defendant’s negligence, and under such general averment he is entitled to introduce evidence showing that the defendant has been guilty of negligence in failing to take advantage of its last clear chance to avoid injury.

[5] Id.—Instructions as to Last Cleab Chance—Estoppel to Complain.—Where in such an action the defendant submits to the court a number of instructions upon the subject' of last clear chance, which are given, it is not in a position thereafter to • complain that the court gave other instructions upon this subject at the request of the plaintiff.

APPEAL from a judgment of the Superior Court of Alameda County. Everett J. Brown, Judge.

Affirmed.

The facts are stated in the opinion of the court.

W„ H. Smith, A. L. Whittle and Chapman & Trefethen for Appellant.

Stanley Moore, Geo. K. Ford and Ostrander & Carey for Respondent.

RICHARDS, J.

This is an appeal from a judgment rendered after the verdict of a jury in favor of the plaintiff for the sum of ten thousand dollars, damages for personal injuries alleged to have been sustained by said plaintiff as the result of an accident in which the plaintiff was struck by one of the cars of the defendant upon a public street of the city of Oakland on the twenty-fourth day of March, 1915.

Said plaintiff on said day, a child of the age of five years, was living with his parents near the place where the accident occurred, and had been sent by his parents on an errand which would take him across Adeline Street, upon which the defendant was at the time operating a double-track electric railway, which ran in a general northerly and southerly direction. The child undertook to cross said street diagonally in a southwesterly direction when a street-car of the defendant, running in a southerly direction along the westerly track of its said railway, struck the plaintiff, cutting off his right hand.

In the complaint which was filed herein on behalf of said plaintiff for the recovery of damages for his said injuries it was alleged generally that while the plaintiff was crossing said street as aforesaid the defendant so negligently and *223carelessly ran and operated one of its electric cars in a southerly direction along said street that the car struck said plaintiff and caused the injuries complained of. To this complaint the defendant in due course filed its answer, denying negligence on its part, and setting up by way of special defense the negligence of the plaintiff.

Upon the trial of the cause upon the issues thus generally framed the verdict and judgment in plaintiff’s favor were rendered, from which this appeal has been taken.

[1] The first contention of the appellant upon the appeal is that the evidence is insufficient to sustain a verdict against the defendant, based upon any negligence on its part or on the part of its employees in connection with the plaintiff’s injuries. We are satisfied from an examination of the record that this contention is without merit. The accident in question occurred about the hour of 5 o’clock in the afternoon, when there was ample daylight, enabling the motorman in charge of the defendant’s car to see clearly objects on said street for several hundred feet. There is ample evidence to show that said motorman either did see, or, with a vigilant lookout, could and should have seen, this child from the time it left the sidewalk on the easterly side of Adeline Street to the moment of the collision; and that at the time when said child was or should have been within the range of his observation for the first time said car was several hundred feet away from the spot where it was finally struck and injured. With respect to the speed at which the car was running at the time the evidence is somewhat conflicting; but there were witnesses who testified that the ear at the time when the child first started to cross the street was proceeding at the rate of about thirty miles an hour. [2] What the actual rate of speed of the car was at the time was a question of fact for the jury; and whether or not the rate of speed which the jury found said car to have been actually running at said time was an undue rate of speed for cars to be operated upon said Adeline Street, were also questions of fact for the jury. *(Burr*v. *United Railroads,*163 Cal. 663, [126 Pac. 873] ; *Ellis*v. *Central Cal. Traction Co.,*37 Cal. App. 390, [174 Pac. 407].)

As to whether the motorman in charge of said car—with Ms opportunity to observe the child from the time it started *224to cross the street, and the direction in which it was going in attempting to cross, and its action in so doing, permitting him to judge whether or not the child was aware of the approach of the car—was or was not negligent, is a matter upon which the evidence is conflicting. There was some testimony as to the ringing of the bell; but whether or not this form of warning was given sufficiently early for the child to have heard the same, and possibly to have thus avoided the collision, there is some dispute in the evidence, which it was the province of the jury to determine. There is also a conflict in the evidence as to when the motorman first applied his brakes, and first began to take such other steps as the mechanism of the car provided for its stoppage in time to avoid running down the child; these were also matters which it was the province of the jury to resolve. Upon this branch of the case we are, therefore, of the opinion that the evidence is sufficient to sustain the finding of the jury as to the defendant’s negligence in the operation of its ear, and that such negligence was the proximate cause of the plaintiff’s injury.

[3] In this connection, however, the appellant makes the contention that the undisputed evidence shows that the plaintiff was guilty of such contributory negligence in the premises as should, as a matter of law, prevent his recovery-in this action; and in support of this contention the appellant cites certain cases in which minors of various ages have been held to have been guilty of such contributory negligence as a matter of law as to preclude recovery for their injuries. The general rule, however, in this state is that whether or not a minor has in a given ease been guilty of contributory negligence so as to prevent his recovery in an action to recover damages for his injury is a question of fact for the jury. *(Cahill*v. *Stone & Co.,*153 Cal. 571, [19 L. R. A. (N. S.) 1094, 96 Pac. 84]; *Cahill*v. *Stone Co.,*167 Cal. 126, [138 Pac. 712]; *Barrett*v. *Southern Pacific Co.,*91 Cal. 296, [25 Am. St. Rep. 186, 27 Pac. 666]; *Foley*v. *California Horseshoe Co.,*115 Cal. 184, [56 Am. St. Rep. 87, 47 Pac. 42]; *Pierce*v. *United Gas & Elec. Co.,*161 Cal. 176, [118 Pac. 700].) In the recent case of *Mayne*v. *San Diego Electric Ry. Co.,*179 Cal. 173, [175 Pac. 690], the supreme court, after a full review of the foregoing authorities, declared that “as a rule courts upon appeal have *225not interfered with the discretion of trial courts in referring or in refusing to refer to juries the question as to whether the contributory negligence of children of the age of fourteen years or under was such as to prevent their recovery for injuries sustained by them.” We are, therefore, of the opinion that there is no merit in the appellant’s contention in this regard.

*m*The next contention of the appellant herein is that the trial court was in error in giving to the jury any instruction upon the subject of last clear chance, and the appellant further contends in this connection that the instructions which the court did actually give upon this subject were erroneous.

[5] With respect to the first of these contentions, the appellant insists that the doctrine of last clear chance was neither" made an issue in the case by the pleadings, nor was it properly presentable to the jury in the state of the evidence before it at the time such instructions were given. In response to the first of these contentions it may be stated that the doctrine of last clear chance is one of the issues which the plaintiff tenders when he makes his general averment as to the defendant’s negligence; and that under such general averment he is entitled to introduce evidence showing that the defendant has been guilty of negligence in failing to take advantage of its last clear chance to avoid the injury. And as to the evidence in the case we are of the opinion that sufficient was shown with respect to the position of the child upon the street at a time immediately preceding its injuries to have entitled the plaintiff to an instruction upon the subject of last clear chance. The appellant itself evidently considered that the question of last clear chance was among the issues involved in the case, since it submitted to the court a number of instructions upon this subject which the record shows to have been given. It is not, therefore, in a position to complain that the court gave instructions upon this subject, and its only remaining contention can be that the court was in error in the instructions thereon which it gave to the jury at the plaintiff’s request. We have carefully examined the whole body of instructions which the court gave to the jury upon the doctrine of last clear chance, and from such examination we *226are of the opinion, without undertaking to quote such instructions in detail, that the jury on the whole was fully and fairly instructed upon this subject, and that whether or not the particular instruction of which the appellant complains was ample enough in its phraseology to fully cover the subject the instructions which were asked and given on behalf of the appellant upon the same subject were sufficient to eke out such deficiency, and that upon the whole said instructions embrace a correct exposition of the law.

As to the other instructions of the court of which the appellant complains, its objections are urged in the most general terms without the citation of any authority which would serve to indicate in what respect they are erroneous. We are unable to perceive that these instructions were in any respect erroneous, and are satisfied that the jury on the whole was fully and fairly instructed as to the law of the case.

This disposes of the defendant’s various contentions, none of which we find to have sufficient merit to justify a reversal of the case.

The judgment is affirmed.

Waste, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 5, 1920.

All the Justices concurred.