Pac. 108], where it was said that there was sufficient proof of negligence where it was shown that the defendant had failed. to raise its current bearing wires so high above a hotel roof, on which they were placed, that those having occasion to go there would not come in contact with them. It is to be noted, however, that the facts in that case showed that the plaintiff was injured while in the discharge of his duty in doing some work on the roof of the hotel where any person called upon to look after the structure or the signs placed thereon might be expected to have to go.

On the other hand, in Fairbairn v. American River etc. Co., 170 Cal. 115, [148 Pac. 788], it was held that a power company whose wires were twenty-seven feet eight inches above the ground was not bound to anticipate that persons might wish to transport along the road under these wires a hay derrick extending to a higher elevation. It was held to be the duty of the company to consider carefully all uses of the highway reasonably to be anticipated and to take precautions to prevent its wires from interfering therewith. The same rule was announced on the appeal from the judgment rendered after the second trial in that case, though new evidence which had been adduced was held to warrant a finding of negligence. (Fairbairn v. American River etc. Co., 179 Cal. 157, [175 Pac. 637].) By analogy, the defendant in the case at bar was bound to prevent its wires from interfering with any use of the highway and, in particular, of the eucalyptus tree which was reasonably to be anticipated. It affirmatively appears from the plaintiff's testimony that the trees were trimmed by the defendant's workmen. No evidence was adduced to show that the tree was used or needed for anything but shade or ornament or to show the existence of any custom with reference to the care of the tree of which the defendant would be reasonably expected to take notice and which would be likely at times to require the presence of the deceased or of any other person in the tree at a height of twenty-seven feet from the ground. In the absence of such evidence, we do not think that the existence of any such business or duty was fairly inferable under the circumstances here presented.

The plaintiff also relies upon Temple v. McComb Co., 89 Miss. 1, [119 Am. St. Rep. 698, 10 Ann. Cas. 924, 11 L. R. A. (N. S.) 449, 42 South. 874], wherein it was said that "the

immemorial habit of small boys to climb trees filled with abundant branches extending almost to the ground is a habit of which companies stretching their wires over such trees must take notice." [2] The case does not support the plaintiff's contention that the defendant was bound to anticipate that children might be attracted to climb into the tree where they might be endangered by the wires. An examination of the photographs, appended to the record as plaintiff's exhibits "A," "B" and "C," as well as uncontradicted testimony, shows that the tree in question was not one likely to appeal to young and irresponsible children. It was nearly three feet in diameter at the ground. The first limb branched out over six feet from the ground. For a considerable distance between the lower branches and the defendant's wires the tree was practically bare of limbs. Although the plaintiff stated that school children were wont to frequent his store and to gather around the tree, there was no attempt to show that any of them had ever undertaken to climb the tree. The facts of the case, so far as they bear upon the duty of the defendant to anticipate that the wires might be a source of danger to irresponsible juvenile climbers, are more analogous to those in Mayfield etc. Co. v. Webb, 129 Ky. 395, [130 Am. St. Rep. 469, 18 L. R. A. (N. S.) 179, 111 S. W. 712], where it was held that the company was not bound to anticipate that children would be attracted to climb two nearly parallel guy wires placed a short distance apart at an angle of forty-five degrees from the ground and passing within eight inches of an electric wire at a height of eighteen feet. Again, in Graves v. Washington etc. Co., 44 Wash. 675, [11 L. R. A. (N. S.) 452, 87 Pac. 956], it was held that the company was not bound to anticipate that boys would climb into danger from its wires, placed near the piers of a public bridge, thirty feet above the roadway. This decision was made in the face of evidence that the piers were so constructed that their braces formed a ladder which could be easily ascended and that boys sometimes climbed there for purposes of sport or to catch pigeons which nested about the bridge. A judg ment for the plaintiff was reversed and the cause remanded with instructions to dismiss the action.

The plaintiff appears to maintain the proposition that because a person might climb the tree without committing a trespass, it was incumbent upon the defendant to assume the

burden of keeping its wires so protected that a climber would not be subjected to risk. That, however, is not the test. The question is not what a person might lawfully do, but what the defendant was bound, in the exercise of reasonable prudence, to assume that a person would be likely to do. (Wetherby v. Twin State Co., 83 Vt. 189, [21 Ann. Cas. 1092, 25 L. R. A. (N. S.) 1220, 75 Atl. 8]; Brush Co. v. Lefevre, 93 Tex. 604, [77 Am. St. Rep. 898, 49 L. R. A. 771, 57 S. W. 640].)

The case of Freeman v. Brooklyn Heights R. R. Co., 54 App. Div. 596, [66 N. Y. Supp. 1052], is instructive in view of the theory advanced by the plaintiff that the defendant's workmen may have left green branches touching the wires and that through them the current may have been communicated to the body of the deceased. The plaintiff in that case was using a public bridge at the time of his injury. Instead of following the footpath, however, he had started to walk across on a girder which was 115 feet long and had a rise of thirteen feet in the center. The defendant was lawfully maintaining a trolley wire on the bridge together with a guard wire. The guard wire should not have been charged with electricity, but current had in some manner leaked into it. While crossing the girder, the plaintiff was struck by this guard wire and suffered the injuries complained of. Although the plaintiff was using a public highway, it was held that, inasmuch as the defendant was not bound to anticipate that such a use would be made of the girder, it was under no active duty to keep its wires so protected as to make such use safe.

There is no merit in the contention of the defendant that the court should have found as a matter of law that the plaintiff was precluded from recovering by reason of contributory negligence on his part or on the part of the deceased. The defendant introduced evidence to show that the plaintiff was fully aware of the danger of coming into proximity to the wires and of the fact that the deceased was about to do so and that he failed in his duty to exercise his parental authority to keep the boy out of danger. The evidence on behalf of the plaintiff, however, tended to contradict this and one of the defendant's experts stated in effect that he did not consider it particularly dangerous to climb near the wires. The question of the plaintiff's negligence was, therefore, properly a question of fact for the jury. It was not shown.

beyond question that the deceased was guilty of some neg ligent act after entering the zone of danger. The question of his negligence was, therefore, also a question of fact for the jury.

While isolated sentences from the court's instructions to the jury, considered alone and unqualified by the context, do, in some instances noted by the defendant, appear to be erroneous or misleading, the instructions, viewed as a whole, are sufficiently clear and correct.

The judgment appealed from is reversed.

Melvin, J., and Wilbur, J., concurred.

[L. A. No. 4913. Department Two.-July 28, 1919.] PAUL THOMPSON, Respondent, v. SOUTHERN PACIFIC COMPANY (a Corporation), Appellant.

TION

[1] PLEADING-ACTION AGAINST CORPORATION-MISNOMER OF CORFORASERVICE OF PROCESS UPON TRUE DEFENDANT-JURISDICTION TO CORRECT MISTAKE.-In an action against a railroad corporation where the defendant was misnamed as "Southern Pacific Railroad Company" instead of "Southern Pacific Company" and the summons was served upon the agent of the latter company, which specially appeared in the action, the court having acquired jurisdiction of the person of the defendant, as well as the subject matter of the suit, possessed the power to correct the misnomer. [2] MASTER AND SERVANT-ASSUMPTION OF RISK-OBVIOUS DANGERS.— It is the duty of a master to provide reasonably safe and suitable appliances with or upon which his employee is to work. As to those things and appliances which it becomes the master's duty to furnish, the servant has the right to assume that the master has done his duty and that the appliances are reasonably safe and secure, and it is not contributory negligence for an employee to neglect to investigate and examine the conditions as to the safety of the appliances. In such a case the employee is held only to have assumed the risk of a danger of which he had knowledge, or the risk of a danger which was so obvious that he must have known of it, or of one as to which he had been put upon inquiry by discovery or suggestion of danger and which by gross carelessness he has neglected to notice.

[3] ID. KNOWLEDGE OF DEFECTS AND DANGERS-INSTRUCTION.-An instruction that knowledge by the employee of the defective or unsafe character or condition of any ways, appliances, or structures of his employer is not a bar to recovery for any injury caused thereby, unless it shall also appear from a preponderance of the evidence that such employee fully understood, comprehended, and appreciated the dangers incident to the use of such defective ways, appliances, or structures, and thereafter consented to use the same or continued in the use thereof, does not reverse the rule regarding "burden of proof" and lay upon defendant the duty of proving the state of plaintiff's mind and the extent of his understanding, since the instruction merely states a well-known rule that a servant is deemed to have assumed a risk when he knows not only the defects in the instrumentalities used by him, but the dangers and risks arising by reason of such defects.

[4] NEGLIGENCE-INJURY TO PAINTER OF RAILROAD SEMAPHORE-IMMINENCE OF DANGER QUESTION FOR JURY.-In an action against a railroad company for damages for personal injuries received while painting a semaphore from a ladder placed on top of a box-car standing on a "house track," since the plaintiff must have known that he would almost certainly be injured if a car should be sent down against the cars on such track, it was for the jury to determine whether or not he knew that there was any imminence of the use of the track for switching at the time in question and under the existing circumstances.

APPEAL from a judgment of the Superior Court of Los Angeles County. Louis W. Myers, Judge. Affirmed.

The facts are stated in the opinion of the court.

Henry T. Gage and W. I. Gilbert for Appellant.

Chas. E. Barrett, Harry A. Hollzer, L. D. Collings and Jerome H. Kann for Respondent.

MELVIN, J.-Plaintiff was successful in a suit for damages on account of personal injuries. Defendant appeals from the judgment.

In the complaint filed November 10, 1910. against Southern Pacific Railroad Company, it was alleged that the defendant was "a corporation organized and doing business as a railroad company in the state of California, and under and pursuant to the laws of the state of California." On that day summons was issued and on November 1, 1911, an alias summons was given in said action. On December 29, 1911, a