the plaintiff testified that the car was ten or fifteen feet from him when he first saw it and was running so fast that, although he made an effort, he had no time to get away from it. He was then asked at what rate of speed it was running, and answered that it was fifteen miles an hour. This answer was stricken out on the ground that it appeared he did not have sufficient opportunity to form an opinion on the question of speed. The court held the ruling to be error. A mathematical calculation shows that if the automobile was running twenty miles an hour, it would have required one-half second to cover fifteen feet. If running at forty miles per hour, as claimed by plaintiff, it would have covered thirty feet in the same length of time. The opinion or estimate of the witness as to the rate of speed at which the automobile was being propelled at the time of the collision might, by reason of his lack of opportunity to judge thereof, be entitled to little value, but this merely goes to the weight to be given the testimony, which was a question for the jury. The court erred in excluding the testimony.

Max Spaeny, called as a witness on behalf of plaintiff, testified that he saw the collision when the automobile struck the front of the motorcycle, knocking plaintiff off and down, and watched the automobile until it went up to Burlington avenue; that plaintiff after being knocked down tried to get up, but being unable to do so, raised his head and looked steadily after the automobile; that he was in the alley as plaintiff passed him going out. This witness testified that he was unable to determine or estimate the speed at which the automobile was running, but for the purpose of showing the speed at which it was operated at the time of the collision the witness was permitted, without objection being interposed thereto, to testify that at the time of the collision the automobile was running at about the same speed as a car operated over the same street and at the same place, the speed of which he had witnessed a few days before the trial, and testimony was then offered to show that this car with which the witness had compared the speed of defendants' automobile was at the time operated at an actual speed of 272 miles per hour. It is conceded the testimony given by the chauffeur in charge of the car contradicted the evidence adduced on behalf of plaintiff as to every material issue. He testified that he knew of and was familiar with the location of this alley and knew that it was used as a thoroughfare by people using wagons, motorcycles and other vehicles; that as he approached the point on Ninth street intersecting the alley his view thereof was obstructed by a wagon loaded with hay, over the top of which he could not see, and which with the team drawing the same extended across seven-eighths of the mouth thereof; that he was looking at his speedometer and was running at a speed of only fifteen miles per hour and did not see plaintiff or know that he had struck him until feeling a jar from the collision he stopped his car within eight feet of the point where the collision occurred, and looking back saw plaintiff lying in the street.

[3] The question presented is whether or not under this evidence

the court was warranted in taking the case from the jury and directing a verdict for defendants. In the late case of Estate of Baldwin, 162 Cal. 471, it is said: [4] "A directed verdict is proper whenever, upon the whole evidence, the judge would be compelled to set a contrary verdict aside as unsupported by the evidence." And further, as touching the question, it is said: [5] "It is not necessary that there should be an absence of conflict in the evidence, but, to deprive the court of the right to exercise this power, if there be a conflict, it must be a substantial one", in support of which proposition a number of California cases are cited. Accepting as the law this latest expression of the supreme court, announced in the Baldwin case, can it be said the rule applies to a case where, as here, it is sought to recover for the alleged negligence of defendants, the existence of which depends upon inferences to be drawn from the facts and circumstances shown by the evidence and as to which reasonable and impartial men may differ in the conclusions drawn? Negligence is not absolute, but relative, depending upon some circumstance of time, place or person, or combination thereof. If the jury had been satisfied that defendant Bundy, as he stated, was operating his car at a speed of only fifteen miles per hour and had it under such control that enabled him to stop it within a distance of eight feet from the point of collision. and this notwithstanding the fact that he did not see plaintiff before striking the motorcycle; or, on the other hand, that he was running at thirty miles per hour and was familiar, as he stated, with the fact that the alley was used as a thoroughfare by parties operating vehicles in coming therefrom into the street; and that in either case the mouth of the alley was not obstructed by any wagon, whether loaded with hay or gravel, by reason of which fact Bundy could have seen plaintiff had he looked, or looking did see him and made no effort to avoid the collision; and that plaintiff, as stated by him, did look and listen, but neither saw nor heard anything indicating the approach of an automobile, they might have concluded plaintiff's injuries were due to a want of reasonable care on the part of the defendants, in which case, had the trial court denied a motion for a new trial, this court on appeal could hardly be expected to reverse same for want of evidence to support the verdict. Other fairly debatable theories based upon evidence adduced might be constructed which, if accepted by the jury, might entitle plaintiff to recover. While the case presented is one where the trial judge might have set aside a verdict rendered for plaintiff, nevertheless, it is not one in which the court would be compelled to do so.

[6] There was introduced in evidence a city ordinance requiring all motorcycles to be registered and numbered. This ordinance provided that every owner of a motorcycle should file in the office of the city clerk a statement in writing showing the name and address of such person, description of the motorcycle, name and maker thereof, and factory number, and that the city clerk should issue to him a metal seal, approximately two inches in

diameter, upon which should be stamped, "Registered Motorcycle No. City of Los Angeles", with the registration number inserted therein, which seal was required to be conspicuously displayed upon the motorcycle to which it was assigned. Section 4 of the ordinance made it unlawful for any person to operate a motorcycle upon the streets unless the registration seal and number belonging thereto was displayed thereon as required by the ordinance. Section 5 provided that "it shall be unlawful for any person to use or operate, any motorcycle upon or in any public street or thoroughfare, unless the owner thereof shall have complied in all respects with this ordinance". For violation of the provisions of the ordinance the offender was made subject to punishment by fine or imprisonment, or both. It is conceded that plaintiff did not file a statement with the city clerk, nor procure the registration of his motorcycle, as required by the provisions of the ordinance. Respondents insist that by reason of such neglect and failure on the part of plaintiff to comply with the ordinance, and even though it be conceded that the negligence of defendants was the direct and proximate cause of the damage sustained by him, he is not entitled to recover therefor. This contention is based upon the theory that, since the ordinance made it unlawful for him to operate the motorcycle, he was, as to defendants and the city, a trespasser upon the street, to whom defendants owed no duty other than to refrain from wilfully or wantonly injuring him or his property. This view finds support in the case of Dudley v. Northampton Street R. Co., 202 Mass. 443, which involved an act of the legislature containing a provision not unlike those contained in the ordinance before us. It is there held, quoting from the syllabus: "One operating an automobile on a public highway in violation of a statute prohibiting the operation thereon of unregistered machines, has no right of action against one who injures it merely by want of ordinary care." "The legislature," says the court, "in the opinion of a majority of the court, intended to outlaw unregistered machines, and to give them, as to persons lawfully using the highways, no other right than that of being exempt from wanton or wilful injury." [7] The general rule appears to be that the violation of an ordinance which directly contributes to the injury caused by the negligence of another bars the right to recover, but where such violation bears no causal relation to nor contributes to the injuries sustained, the rule has no application. (Newcomb v. Boston Protective Dept., 146 Mass. 596; Frontier Steam Laundry Co. v. Connolly, 68 L. R. A. 425; Needham v. San Francisco & S. J. R. Co., 37 Cal. 409; Schierhold v. N. B. & M. R. R. Co., 40 Cal. 447; Munroe v. Hartford St. Ry. Co., 56 Atl. Rep. 498; Broschart v. Tuttle, 59 Conn. 1; Shaw v. Thielbahr, 81 Atl. Rep. 497.) Indeed, the Massachusetts court, in a later case entitled Bourne v. Whitman, 209 Mass. 155, refused to extend the doctrine of the Dudley case to one where the plaintiff was in default in that he had not complied with an act requiring the issuance of a license as a

condition of lawfully operating a vehicle. Even where the violation of an ordinance constitutes negligence per se, there must be, in order for plaintiff to recover, a causal relation between the violation of the ordinance and the injury complained of. (Lindsay v. Cecchi, 80 Atl. Rep. 523.) The conclusion of the Massachusetts supreme court, divided, however, as it was, appears to have been based upon the theory that the legislature of that state intended by the act to create a duty to other travelers upon highways, and not merely to declare a public duty to be enforced by the imposition of the penalties therein prescribed in the ordinary administration of the criminal law. We are unable to appreciate the distinctions sought to be drawn, and unwilling to accept its decision as the law of this state when applied to the ordinance in question. Moreover, if the automobile was operated at a rate of speed in excess of that prescribed by the ordinance, it was not lawfully traveling upon the street, as was defendant in the Dudley case, which fact is given particular emphasis. While the courts, invoking the maxim er pacto illicito non oritur actio, in a certain class of cases close their doors in the face of one guilty of moral turpitude in attempting to enforce an illicit contract, thus leaving the parties as they found them, such principle is wholly inapplicable to the facts here involved. Our conclusion is that one who violates an ordinance wherein a penalty is fixed for non-compliance with its provisions, may be subjected to the penalties therein prescribed, but he cannot, in addition thereto, be deprived of his civil right to recover damages, perhaps in many thousands of dollars, sustained by reason of the negligence or wrong of another, when such violation bore no relation to the injury and did not contribute in the remotest degree thereto. In our opinion, such was not the intent of the legislative body of the city of Los Angeles in adopting the ordi

nance.

The judgment and order are reversed.

We concur:

CONREY, P. J.

JAMES, J.

SHAW, J.

Civil No. 1262. Third Appellate District. June 3, 1914. MATTIE E. DAVIDSON, Petitioner, v. EUGENE D. GRAHAM, as County Clerk, etc., Respondent,

[1] MANDAMUS-ENTRY OF DEFAULT ESSENTIALS.-To justify the issuance of the writ of mandate to compel the county clerk to enter the default of the defendant in a civil action it must be shown by the petition for the writ that no answer was filed within the statutory time, "or such further time as may have been granted", and that the plaintiff in the cause made application for the default.

[2] ID.-ID.-STIPULATION WAIVING DEMURRER-TIME TO ANSWER -EXECUTION BY ATTORNEY'S CLERK-DEFAULT PROPERLY REFUSED.— Mandamus will not lie to compel the county clerk to enter the default of the defendant in a civil action for failure to answer the complaint within the time mentioned in a stipulation waiving the demurrer on file, where such stipulation is signed by the clerk of

the attorney for the defendant, and the petition for the writ contains no averment of his authority to sign, or that the defendant entered into or executed the stipulation.

[3] ID. PLEADING-WAIVER OF DEMURRER-STIPULATION OF PARTIES EFFECT OF.-There is no statutory provision for waiving a demurrer that has been filed in a cause, and to effectually dispose of it it is probable that an order of court is required sustaining or overruling it or allowing it to be withdrawn.

Application for Writ of Mandate prayed to be directed against Eugene D. Graham, as County Clerk, etc.

For Petitioner-Webster, Webster & Blewitt.

For Respondent-A. H. Carpenter, Walter F. Lynch.

This is an application for a writ of mandate to compel the clerk of San Joaquin county to enter the default of one A. T. Karry for his failure to answer in a certain action brought against him by said Mattie E. Davidson in the superior court of said county.

The petition herein sets out the complaint in said action, alleges that it was filed, that summons was issued and served upon said Karry, that he appeared and filed a demurrer, which is exhibited. "That thereafter on the 18th day of August, 1913, there was entered into and filed in said action a stipulation in the words and figures as follows, to-wit: (Title of court and cause.)

'It is hereby stipulated and agreed that no default shall be taken against the defendant, A. T. Karry, he waiving his demurrer, and that the said defendant, A. T. Karry, shall have to and inclusive of September 15th, 1913, in the which to file and serve his answer on the merits.

Dated this 18th day of August, 1913.

Webster, Webster & Blewett,
Attorneys for Plaintiff.

A. H. Carpenter,

Attorney for Defendant, A. T. Karry.

By Walter F. Lynch, Clerk'." That, on December 1, 1913, the plaintiff filed with the clerk her demand for the entry of Karry's default and tendered the legal fee for the same, that the demand was refused, that thereafter, upon notice given, a motion was made in the said superior court for judgment against said Karry on the ground that he had suffered default but that the motion was denied without prejudice, and that, on December 16, defendant Karry filed a demurrer in said action, which is set out.

The claim is that it was the clear, ministerial duty of the clerk to enter the default at the time the said demand was made and, therefore, that section 1085 of the Code of Civil Procedure as to mandate applies.

It is further contended that the law which "specially enjoins" that duty is found in section 585 of the said code, which it is sufficient to quote as follows: "Judgment may be had, if the defendant fails to answer the complaint, as follows: 1. In an