tiff at the time she was struck by the automobile was facing east—that is, in the direction in which the automobile was going and when "she got just beyond the tracks that are in the center of the street she got out of the way of a passing motorcycle." Plaintiff testified that she "saw the automobile plain enough" when it was approaching just back of the street-car. As to whether any signal was given by the operator of the automobile by horn or bell, and as to the speed at which it was operated-whether rather fast, as testified to by one witness, moderate speed, or slowly, as testified by othersthe evidence is likewise conflicting.

The answer alleged contributory negligence on the part of the plaintiff, and since there was evidence which, if believed by the jury, would establish such fact, the question as to whether or not plaintiff was guilty of contributory negligence which constituted the proximate cause of her injury, should have been submitted to the jury for determination; and had it so found, this court could not have disturbed such verdict. The claim, as to which there was a conflict of evidence, that plaintiff had her eyes turned away from the automobile the approach of which she had noticed, and that she stepped back to escape a collision with a passing motorcycle, if believed, might justify a conclusion of negligence on the part of plaintiff. And her own testimony to the effect that the distance between the line upon which she was crossing the street and the approaching automobile was little more than the intervening space of Los Robles Avenue (width, however, not shown), might be deemed well calculated, if believed by the jury, to constitute a sufficient warning to her of danger from which, by the exercise of ordinary care, she could escape. Reasonable minds might have differed as to whether or not, under the circumstances, she was justified in concluding that the motor would not continue its progress, and as to whether she should not at least have looked in the direction of the approaching automobile, and this even though no sound of the horn or other signal was given. "The fact of negligence is generally an inference from many facts and circumstances, all of which it is the province of the jury to find." (Schierhold v. North Beach & M. R. R. Co., 40 Cal. 453.) In Davis v. Pacific Power Co., 107 Cal. 563, 575, [48 Am. St. Rep. 156, 40 Pac. 952], it is said: "It is only where the undisputed facts are such as to leave but one reasonable

inference, and that of negligence, that the court is justified in taking the question from the jury." Where either negli gence is set up as a cause of action or contributory negligence pleaded as a defense, it seldom happens that the question is so clear from doubt that the court can undertake to say as a matter of law how the jury should find upon such issues. It is apparent, we think, that plaintiff relied upon the course of the automobile being obstructed by the street-car which she had reason to think was about to turn into Los Robles Avenue ahead of the automobile. Whether an inference of negligence on the part of the plaintiff in not further watching the approach of the automobile was justified depended upon whether she was justified in this reasoning. As said in Johnson v. Thomas, 5 Cal. Unrep. 256, [43 Pac. 578]: "It was certainly an inference upon which minds might well differ, and hence proper to be submitted to a jury, under proper instructions." The evidence shows that the position of the street-car was such as to partially at least obstruct the automobile driver's view of the street crossing, and that he did not see the plaintiff until after his automobile had passed the street-car, when he came suddenly upon plaintiff, which facts bring the case directly within the instruction given. Nevertheless, if the jury were satisfied that plaintiff was guilty of contributory negligence which was the proximate cause of her injury, she was not entitled to recover. In effect, the jury was told to disregard all evidence tending to prove contributory negligence on the part of plaintiff, and in effect took from it the consideration of all evidence tending to show negligence and carelessness on her part. Such we do not conceive to be the law. Whether such act on the part of the automobile driver would constitute negligence and render him liable for damages caused by a collision, would depend upon the degree of care required in the operation of his machine, and this in turn would depend upon the dangerous character of the machine, its size, weight, the speed at which it was operated, the noise it made, condition of the streets, and other conditions which might be mentioned. 6 Penne. (Del.) 224, [65 Atl. 778].) warranted, after she saw the approaching automobile a short distance away, knowing that it would cross the line of her travel, in not further watching the approach thereof, was a question upon which minds might well differ, and hence it

(Simeone v. Lindsay, Whether plaintiff was

should have been submitted to the jury. Respondent attempts to justify the giving of this instruction upon the authority of Gregory v. Slaughter, 124 Ky. 345, [124 Am. St. Rep. 402, 8 L. R. A. (N. S.) 1228, 99 S. W. 247], the syllabus of which reads as follows: "The driver of an automobile is guilty of gross negligence in driving his car at high speed across the intersection of two much used streets and around the end of a street-car which obstructs his view of the crossing, so that upon finding a pedestrian directly in the path of the car he cannot avoid a collision with him." There is no evidence here, however, that the intersection of Colorado Street and Los Robles Avenue was a much used street. On the contrary, it might be that it was seldom traveled or crossed. Nor does the evidence show that the defendant ran his automobile around the end of the street-car, and the evidence cannot as a matter of law be said to justify the conclusion that the car was being driven at a high rate of speed, or at other than a moderate rate of speed.

It is true that the court elsewhere in the instructions told the jury that even though it found defendant guilty of negligence in managing the automobile, its verdict must be in his favor if they found that plaintiff was guilty of negligence constituting the proximate cause of the injuries received; and also told them that if plaintiff in the exercise of ordinary care, by looking or listening, might have observed the automobile approaching, and did not exercise such care, she was guilty of negligence which would prevent her recovery. Instruction No. 17, however, was given without any qualifications whatever, and it is impossible to reconcile it with other instructions. The evidence tended clearly to show the facts upon which the jury were therein told that defendant was guilty of gross negligence and liable for damages, and was well calculated to mislead the jury in arriving at its verdict. Under these circumstances, our conclusion is that it constitutes prejudicial error.

The judgment and order appealed from are, therefore, reversed.

Conrey, P. J., and James, J., concurred.

[Civ. No. 1547. Third Appellate District.-September 19, 1916.]

BEN E. TORMEY, Appellant, v. FRANK N. MILLER, Respondent.

ATTACHMENT-RELEASE-SUBSEQUENT BANKRUPTCY OF DEFENDANT ENTRY OF QUALIFIED JUDGMENT-LIABILITY OF SURETIES-RIGHT OF PLAINTIFF.-Where in an action for goods sold and delivered the property of the defendant is attached and afterward released upon the giving of an undertaking conditioned that if the plaintiff should recover judgment the sureties upon demand would pay the amount thereof, the plaintiff is entitled, where the defendant by way of supplemental answer sets up his adjudication and discharge in bankruptcy since the commencement of the action, to have a special or qualified judgment entered against the defendant with a perpetual stay of execution, for the purpose of enforcing the liability of the sureties on the undertaking.

ID.-PROCEDURE-MOTION FOR ENTRY OF QUALIFIED JUDGMENT AT CLOSE

OF TRIAL.-Under such circumstances, it is proper procedure to enter such a judgment upon motion made at the conclusion of the trial of the issues raised by the original pleadings and supplemental answer. ID.-PLEADING — ATTACHMENT AND RELEASE EVIDENTIARY MATTERS.Under such circumstances it is not necessary to the entry of the judgment against the defendant, for the special purpose of fixing and enforcing the liability of the sureties on the undertaking, that the plaintiff should plead the issuance of the writ of attachment, its levy, the giving of the undertaking for the release, or the release of the property, as the same are purely evidentiary matters. ID.-APPEAL FROM JUDGMENT-REVIEW OF ERRORS OCCURRING DURING TRIAL. In such an action alleged errors in excluding proof of the issuance of the writ of attachment and the execution of the undertaking are reviewable upon appeal taken from the judgment, where the appeal was taken after the abrogation by the legislature of 1915 of the right to appeal from an order denying a new trial (Stats. 1915, p. 209).

APPEAL from a judgment of the Superior Court of Butte County. H. D. Gregory, Judge.

The facts are stated in the opinion of the court.

Milton Newmark, and Clarence A. Shuey, for Appellant. Lon Bond, for Respondent.

HART, J.-The defendant in this action was awarded judgment, from which this appeal, supported by a bill of exceptions and a stipulation admitting as true certain facts, is prosecuted by the plaintiff.

The facts as agreed upon by the stipulation of the parties are with accuracy synoptically stated in the opening brief of counsel for the plaintiff, and we, therefore, adopt said statement thereof, together with the statement of the legal propositions submitted here for decision by the appellant.

"Appellant brought an action in the superior court of this state for Butte County, against respondent, for goods sold and delivered. A writ of attachment was issued in said action directed to the sheriff of Butte County and placed in his hands for execution. A bond was thereafter made, executed and delivered, and thereupon the attachment was released and discharged. By the obligation of said bond, the sureties undertook 'that if the said plaintiff shall recover judgment in said action we will pay to the said plaintiff upon demand the amount of said judgment together with the costs not exceeding in all the sum of $1200, gold coin of the United States.'

"Thereafter, and within four months of the commencement of the attachment suit, respondent filed a petition in the District Court of the United States for adjudication as a voluntary bankrupt, and thereafter was duly adjudged a bankrupt and discharged of his debts by order of said District Court. Respondent filed a supplemental answer in the attachment suit, setting up his discharge in bankruptcy as a defense. Upon these issues the case was tried, and at the trial counsel for plaintiff, in his opening statement, told the court that he proposed to ask for judgment against the defendant with a perpetual stay of execution against the property of said defendant for the purpose of maintaining his rights against the bondsmen.

"The allegations of the complaint in regard to the incurring of the indebtedness sued upon and non-payment were admitted by stipulation of counsel for respondent. The bankruptcy proceedings culminating in the order of discharge were also admitted by stipulation, and this constituted the sole defense interposed to the action. Plaintiff offered evidence establishing the facts in regard to the issuance of the writ of attachment, the execution and delivery of the under