of the trial this strip was continuously used as a public way, and was commonly known as "Strong's Drive." It was the only means of access to the buildings situated on the westerly side of the strip that could be conveniently used by delivery wagons and other vehicles. There is evidence that the owners of the property, through their local agents in charge of the property, were fully aware of this use of the strip of land. The city of Venice improved Center Street and Mildred Avenue with sidewalks, and at the corners of this alley upon those streets insets in the sidewalk were made which plainly indicated that it was supposed to be a public way. At the time the map was filed the title to the property was held by the Union Trust & Realty Company, in trust for the members of said syndicate. Shortly afterward the members formed the appellant corporation and the title was thereafter transferred to the corporation, but the agency for the making and control of the sales continued as before.

[6] This evidence sufficiently shows the intention of the owners that this strip of land should be used by the public as a public street or alley for the convenience and benefit of the public and of the owners of lots abutting thereon. The general use by the public was a manifestation of its acceptance thereof, and upon the rules laid down in the foregoing authorities the street was in this manner completely "dedicated and abandoned" to the public use.

It is true that the managers and agents of the syndicate above referred to, and some members of the syndicate, as well, testified that they made no such declarations concerning the use of the street and that they never intended to dedicate the property for that purpose. But the testimony of other persons concerning declarations made by them was sufficient to create a conflict of the evidence, which was determined by the court below in favor of the respondent.

[7] It is also suggested by the appellant that there is evidence that the directors of the appellant corporation never in any manner authorized its agents to dedicate this land to the public use. It is apparent, however, that the corporation is estopped to deny the authority of its agents in the matter. The entire subject of making the sales was left to the control of its agents, and they had at least ostensible authority to make the declarations referred to. (Southern Pacific Co. v. Pomona, 144 Cal. 347, [77 Pac. 929].)

Appellant complains of the ruling of the court allowing testimony of the declarations made by Carroll Daly, with regard to the use of this strip of land as a public street, claiming that he had no authority to make such statements. It appears that he was a member of the syndicate that subdivided the land and that he has been a director of the appellant corporation ever since its organization, that he was also secretary and treasurer of the corporation, that he took an active part in its business and was a subagent under Strong & Dickinson for the sale of the lots, and that as such he negotiated several sales of the lots by the company. Having obtained the benefit of his solicitations and representations to induce purchases, the company denies his authority to make them. [8] It is not the law that the authority of an agent to act for a corporation can only be proven by the minutes of its board of directors or by a contract in writing. It may be shown by evidence that the person does business for the corporation and on its behalf, as agent, with the knowledge and acquiescence of its directors or general manager, or by their direction. The company, in such a case, is bound by his acts and declarations within the scope of the business intrusted to him. (Crowley v. Genesee M. Co., 55 Cal. 276.) It may be that Daly's declarations to W. A. Rennie in negotiating a sale by Daly of his own lot to Rennie was not admissible against the company. But they were given before it was disclosed that the lot belonged to Daly at a time when

it appeared that it was one of the lots of the company. It

was then apparently admissible and no motion was made to

strike out the evidence when the contrary was shown. Hence the objection must be deemed to have been waived.

The judgment is affirmed.

Olney, J., and Lawlor, J., concurred.

[S. F. No. 7563. In Bank.-May 31, 1919.]

HORACE G. RICHMAN, Respondent, v. SAN FRANCISCO, NAPA AND CALISTOGA RAILWAY (a Corporation), Appellant.

[1] APPEAL

JUDGMENT - PARTIAL ASSIGNMENT TO COUNSEL-COMPROMISE WITHOUT KNOWLEDGE-RIGHT TO PROSECUTE APPEAL.-An appeal from a judgment and order denying a new trial in an action for damages for personal injuries will not be dismissed on the ground that the controversy had been compromised, where the compromise was made by the parties themselves and without the consent of respondent's counsel, who held an assignment of an undivided one-half interest in the judgment, and the appellant had notice of the assignment prior to the compromise.

[2] NEGLIGENCE-INJURY TO TRAIN CONDUCTOR-TIME OF COLLISIONEVIDENCE-STOPPING OF WATCH OF PASSENGER. In an action to recover damages for personal injuries alleged to have been sustained by a conductor in a railroad wreck when two trains of the defendant company collided, the admission of testimony concerning the stopping of the watch of one of the passengers on the wrecked train, for the purpose of showing the time of the collision, was not error.

[3] ID.-EVIDENCE-EFFECT OF SYPHILIS-LIMITATION OF REDIRECT ExAMINATION.-In such action, where a witness called by the defendant had already gone into the general subject of syphilis and its effects exhaustively on direct examination, it cannot be held that a refusal by the court on redirect examination to allow further testimony concerning the effect of syphilis constituted error, even though the inquiry was relevant and the question properly framed. [4] ID. FUTURE DAMAGES-ERRONEOUS INSTRUCTION-USE OF PHRASE "REASONABLY PROBABLE."-In such action, an instruction that if the jury should find that the plaintiff's injuries are permanent and will to some extent disable him in the future and cause him pain and suffering hereafter he should be allowed such further sum, as paid now in advance, will reasonably compensate him for such further disability, pain, and suffering, as the evidence shows is "reasonably probable" will result to him in the future, not to exceed in all the amount alleged in the complaint, is erroneous, since the use of the expression "reasonably probable" might well have led the jury to believe it would be proper to allow damages for suffering or other injury which the jury believed the plaintiff would probably suffer in the future, instead of for such suffering and injury as they believed were certain to result.

[5] ID. MISCONDUCT OF COURT-COMMENT UPON WIFE'S TESTIMONYPHYSICAL CONDITION OF PLAINTIFF ADMONITION TO JURY-LACK

OF PREJUDICE.-In such action, a remark of the court addressed to counsel in the presence of the jury that he would rather take the wife's testimony concerning the physical condition of the plaintiff than all the physicians in the world, was improper, but without prejudice, where the jury was admonished not to consider for any purpose any comments of the court made to counsel during the trial upon testimony or the relative weight of the testimony of any witness.

[6] ID.-INTERPRETATION OF RULES OF DEFENDANT

RELATIVE DUTIES

OF PLAINTIFF AND TRAIN-DISPATCHER EVIDENCE OPINIONS AND CONCLUSIONS OF WITNESSES.-In such action, the admission of opinions and conclusions of certain witnesses in the interpretation of the printed operating rules of the defendant, the application of the rules, the duty of the train-dispatcher under the rules, the priority of one rule over another, as to which of two trains was superior, and the relative duties of the plaintiff and traindispatcher, was prejudicially erroneous, since if the rules required `elucidation, it was the duty of the court to interpret them.

APPEAL from a judgment of the Superior Court of Napa County, and from an order denying a new trial. Henry C. Gesford, Judge. Reversed.

The facts are stated in the opinion of the court.

Myrick & Deering, John T. York and James Walter Scott for Appellant.

Theodore A. Bell and E. S. Bell for Respondent.

LAWLOR, J.-This is an action brought to recover damages for personal injuries alleged to have been sustained by plaintiff in a railroad wreck, when two trains of the defendant company collided between Collins and Hatch, stations situated on the line of its railroad, in Napa County. The jury found a verdict for plaintiff in the sum of fifteen thousand dollars. The defendant has appealed from the judgment entered thereon, and from an order denying a new trial.

Before considering the points relied upon for a reversal of the judgment and the order denying a new trial we will dispose of the motion to dismiss the appeal. The motion was made on the ground that the controversy having been compromised, the questions presented were moot. After judg ment the plaintiff assigned an undivided one-half interest therein to his attorney, E. S. Bell. It appeared that before

the opening brief of the appellant was filed an agreement to compromise the controversy was entered into between the parties, James Irvine, the president of the company, representing the defendant, without the participation of its counsel, and the plaintiff acting for himself, without the consent of his counsel, and satisfaction of judgment was accordingly entered in the office of the county clerk of Napa County. Mr. Bell thereupon brought an action to vacate and set aside the satisfaction of judgment so far as it related to his undivided one-half interest. Plaintiff and the defendant company were both made parties to the suit, and upon the trial it was decreed that Bell was the owner of the interest claimed, the satisfaction of judgment was annulled and set aside, and the judgment was thereupon restored and entered by the clerk in favor of Bell against defendant, in the sum of $7,658.25. This action, resulting in favor of Bell, was based upon the fact that notice of the assignment had been given to representatives of the defendant company prior to the settlement with plaintiff. The trial court found that the defendant company had such notice, and that it wrongfully conspired with the plaintiff to cheat and defraud Bell of his interest in the judgment. No appeal was taken from this judgment and it has become final. It is apparent from the foregoing that there is no compromise as to half of the judgment at least, and the case is not moot. [1] The motion to dismiss the appeal on the ground of a compromise, therefore, cannot be sustained.

The defendant is a common carrier of passengers and freight, and operates a single line electric railway between the towns of Vallejo and Calistoga. For the purpose of controlling the movement of its trains the company employs train-dispatchers at its depot at Napa City and maintains a telephone line connecting with all its main stations, including Vallejo and Collins. On the morning of June 19, 1913, plaintiff was operating one of defendant's trains in the capacity of conductor. His train was known as No. 6 and was due to leave Vallejo at about 9 o'clock, and to arrive at Collins some sixteen minutes later. At this station, according to schedule, train No. 6 was to meet train No. 5, southbound. This latter train reached Collins on schedule time, but No. 6 was late. The conductor of No. 5 called up the train-dispatcher from Collins and asked for orders. He was directed to take orders, and after the dispatcher called up the agent at