his two daughters. In his own behalf the appellant testified that as he came down Third Street he was on the right-hand side of the north car-track; that he was traveling about ten miles an hour; that he had all the lights burning on the machine; that when he reached the east line of Atlantic Avenue he sounded his horn and began to make a gradual turn to the right; that he passed within six or eight feet of the northeast corner, but that in order to avoid striking an automobile which was parked on Atlantic Avenue at right angles to the curb from fifteen to twenty feet north of the corner, he bore a little to the left; that there was a street-car passing going east, just before he reached the east line of Atlantic Avenue; that Atlantic Avenue was very dark at the time; and that there were no lights except those on his machine and some of the machines that were parked, and a small incandescent light at the door of the tabernacle; that he did not see Mrs. Pemberton until she was within about a foot or a foot and a half of the right front fender; that just before he saw her he had been blinded for an instant by a light from some source which flashed across his windshield; that as soon as he saw Mrs. Pemberton he cramped his front wheels hard to the left, threw out his clutch, jammed on the foot-brake, and at the same time set the emergency brake, bringing his machine to a stop within its own length, and on the right-hand side of Atlantic Avenue. Appellant's testimony was corroborated throughout by that of his wife and his two daughters.

Witnesses Mrs. Minnie Haskins, Reverend A. R. Moore, W. E. Brown, and J. C. Hoffman, called on behalf of appellant, all testified that they arrived on the scene after the accident had happened, and that they found the machine standing on the east side of the center line of Atlantic Avenue, or, in other words, on the right-hand side of the street. C. H. Stevenson, also called for the appellant, testified, however, that the machine was standing at about the center of the street.

The court found that the defendant Edward Arny, "at the time and place hereinabove referred to, suddenly and without warning or signal of any kind turned his automobile to the right and to the north into Atlantic Avenue and violently struck Amy Pemberton with his said automobile, and knocked her to the pavement and ran over her and dragged

...

her beneath same; that the defendant in turning to the right from said Third Street north into Atlantic Avenue caused his automobile to be turned so suddenly in front of Amy Pemberton that the said Amy Pemberton did not have time to get out of the way of defendant's automobile before the collision occurred. . . . That the defendant . . . carelessly and negligently drove and operated his automobile upon said crossing in a careless manner without due or any regard to the safety and convenience of pedestrians and the said Amy Pemberton, in that he neglected and failed to keep a sharp, diligent, and careful watch or any lookout or watch whatsoever for pedestrians and by reason of said negligence defendant's automobile struck Amy Pemberton and threw her to the ground and injured her as herein more fully set forth. That the defendant negligently and carelessly gave no reasonable, or any warning, by horn, or otherwise, to said Amy Pemberton that defendant was turning from Third Street north into Atlantic Avenue, and intended to cross said sidewalk or crossing, which was being used by the said Amy Pemberton, in order to allow the said Amy Pemberton to escape from in front, and get out of the way, of defendant's automobile. That by reason of the carelessness and negligence of the defendant as hereinabove alleged the said Amy Pemberton while upon said crossing referred to was struck by defendant's automobile as aforesaid, was knocked down and dragged, thrown to the pavement," and suffered the injuries as hereinbefore set out, "and that she will be an invalid for the remainder of her life and unable to perform her usual duties.

"As a conclusion of law from the foregoing facts, the court finds and decides: That the defendant Edward Arny was guilty of negligence in running and colliding with and running over the said Amy Pemberton, the wife of the plaintiff herein, and that said negligence was the proximate cause of the said injuries; that the said Amy Pemberton was not guilty of any contributory negligence whatsoever."

We have thus reviewed the testimony at length in order to show that there is sufficient evidence to support the findings of the court, resolving the conflict on the side of the plaintiff.

Appellant contends that the court erred in admitting in evidence over the appellant's objection section VIII of ordinance 598, known as the "Traffic Ordinance" of the city of Long

Beach, which section reads as follows: "Section VIII. The driver of any vehicle in turning to the right from one street into another shall turn the corner as near the right-hand curb as possible." It is urged that the section was irrelevant, immaterial, and not pertinent to any issue in the case, and had been superseded by the Motor Vehicle Act of the state of California (Stats. 1913, p. 639), which provides that the driver of any vehicle in turning to the right from one street into another shall keep to the right of the center thereof.

On this point the court found: "That at the time of said injury to the said Amy Pemberton . . . there was in full force and effect in the city of Long Beach, State of California, an ordinance No. 598 (N. S.), which provided that: "The driver of any vehicle in turning to the right from one street into another shall turn the corner as near the right-hand curb as possible'; . . . that the defendant in turning to the right. and north into Atlantic Avenue from said Third Street in the city of Long Beach did not keep as near the right-hand curb as possible; that at the time of the accident herein complained of there was nothing to prevent the defendant in turning to the right from said Third Street north into Atlantic Avenue, from turning close to the curb at the northeast of said Third Street and Atlantic Avenue as required by the ordinance hereinabove referred to; that the defendant in turning to the right from said Third Street north into Atlantic Avenue in said city of Long Beach, did not keep to the right of the center of the street intersection of said Third Street and Atlantic Avenue; that the negligence of the defendant was the sole and proximate cause of the injuries."

[1] In view of this finding it is not necessary to consider whether the admission of the section VIII above referred to was superseded by the Motor Vehicle Act. It is to be noted that the court not only found that at the time of the accident the defendant was violating the said city ordinance, but, also, that he was violating the Motor Vehicle Act itself, in that, "he did not keep to the right of the center of the street intersection of said Third Street and Atlantic Avenue." For this reason, the admission of the ordinance, even if erroneous, would not be prejudicial.

It is further urged by the appellant that the court erred in admitting in evidence the following testimony on cross

CLXXX Cal.-49

examination of Mrs. Kittie Arny, wife of defendant, and a witness called in his behalf:

"Q. So, then, there was nothing, so far as you could see, on the east side of Atlantic Avenue, which would at all have interfered with your turning closer to the curb than the turn which brought you at or near the center of the street?

"Mr. Swaffield: We object to that on the ground that it assumes a state of facts not in evidence. It assumes that the turn they made would have brought them to the center. She testified there was a swing apparently to the west at the time of this accident; she has not testified that the turn brought them to the center; irrelevant, incompetent, and immaterial. "The Court: Read the question."

"(Question read.)

"The Court: She may answer if anything was there that interfered with your turning.

"A. There was nothing there that I saw; we turned as close as we could."

The objection that the question assumed a state of facts not in evidence is without merit. As we have heretofore pointed out, there was evidence before the court tending to show that the turn which the defendant made did bring his automobile to the center of the street intersection and beyond that line. And this is not affected by the fact that there was evidence to the contrary. Moreover, the question to which counsel objected as assuming facts not in evidence was not answered. After having the question read the court said: "She may answer if anything was there that interfered with your turning." The answer was directly responsive to the question of the court. In any event, the answer could not be held to be prejudicial for the reason that other witnesses had testified to the same effect and there was no testimony to the contrary. Nor was any claim made by appellant that there was any obstruction at the northeast corner of the street.

Judgment affirmed.

Shaw, J., and Olney, J., concurred.

[L. A. No. 4719. In Bank.-July 30, 1919.]

JANET THOMSON, Respondent, v. T. W. LA FETRA et al., Appellants.

[1] TRESPASS CHANGING OF COURSE OF SEASONAL WATERS ·ERECTION OF WOODEN STRUCTURE-CASTING OF WATERS UPON LANDS OF OTHERS COMMON ENEMY RULE INAPPLICABLE.-The rule applicable to waters which are a "common enemy" cannot be invoked in favor of land owners who to prevent injury to their lands from seasonal waters from a canyon erected a wooden structure which turned the waters on to the lands of others, since the water not being in any sense flood water, the changing of its course and casting it upon other lands amounted to a trespass.

[2] WATER RIGHTS-COMMON ENEMY WATERS-APPLICATION OF RULE. The rule applicable to waters which are a "common enemy" has application only to flood waters in the strict sense, that is to say, to waters escaping because of their height from the confinement of a stream and running over the adjacent country.

APPEAL from a judgment of the Superior Court of Los Angeles County. Stanley A. Smith, Judge Presiding. Affirmed.

The facts are stated in the opinion of the court.

John E. Daly and James H. Daly for Appellants..

E. H. Allen and Porter, Morgan & Parrot for Respondent.

LENNON, J.-This is an appeal from a judgment upon the judgment-roll alone which shows that the defendants maintain a dam which prevents the entrance and flow of certain surface waters upon and across their lands, and so diverts these waters that they flow upon the land of the plaintiff.

The lands of the parties to the action are located near the city of Glendora, in Los Angeles County. The lands are bounded on the north by a public highway which runs from east to west. The land of the plaintiff is situated several hundred feet to the east of that of the defendants. Some distance to the north are foothills. Seven hundred and fifty feet directly north of the defendants' lands is the mouth of a canyon. Following heavy rains there is a stream in this