formance of services, or non-payment as alleged; nor is there any finding upon the issue of the statute of limitations. The joint ownership by defendants of the mines, their sale, and the agreement of defendants to pay for the services of the plaintiff are not denied; the denial in the last regard being merely that Adams did not agree to pay therefor. The contract set out in the complaint was joint and several. (Civ. Code, sec. 1659.) Section 414 of the Code of Civil Procedure provides that when the action is against two or more defendants, jointly or severally liable on a contract, and the summons is served on one or more, but not on all of them, the plaintiff may proceed to judgment against the defendant served, etc. No objection appears from the record to have been made in the court below to proceeding with the trial as against the answering defendant alone; and under section 579 of the Code of Civil Procedure the court was authorized to render judgment. (Kelly v. Plover, 103 Cal. 36, [36 Pac. 1020].) The precise question involved here was decided adversely to appellant's contention by this court in McKee v. Cunningham, 2 Cal. App. 684, [84 Pac. 260]. Nor is such decision in conflict with the various decisions cited by appellant, which have reference to the character of the action as applied to its subject-matter. The admitted facts demonstrate that the findings as to the statute of limitations could not have been otherwise than against appellant; they establish the conclusion that the statute has not run, and a finding thereon was not necessary to support a judgment. (Lewis v. Adams, 70 Cal. 403, [59 Am. Rep. 423, 11 Pac. 833]; Winslow v. Gohransen, 88 Cal. 451, [26 Pac. 504].) The finding of the court as to non-payment is positive as to the appellant-defendant, which must be taken as including payment by him, or by any other person for him or his benefit, either associated with him in the joint enterprise or otherwise."

A more particular statement than is made in the foregoing opinion will show that there is no variance with respect to the contract alleged and that stated in the findings. It is not necessary in every case that there should be findings upon all the allegations of the complaint. The findings must respond to the issues only, and the true rule is that there must be a finding upon every material fact alleged in the complaint and controverted by the answer, provided it is necessary to

support the judgment rendered in the action. The findings in this case conform to this requirement. The complaint alleges that "the defendants agreed to pay plaintiffs" for the services, that is, in effect, that all three defendants so agreed. The answer denies that the defendant Adams so agreed, and is silent in regard to the fact that the other defendants agreed to pay. Every fact not denied by the answer is admitted to be true, and hence the case was submitted with the admission that the other two defendants had agreed as alleged, leaving the court to find only as to whether or not Adams had agreed. The finding that Adams did agree to pay the plaintiff exactly covered the issue in this respect, so that, together with the admission, it was fully established that all the defendants had agreed as alleged in the complaint. As Adams alone had then appeared, judgment was properly given against him alone.

With respect to the finding of non-payment, the rule applies that upon an appeal from the judgment, upon the judgmentroll alone, the language of the findings is to be given the broadest possible meaning, whenever it is necessary to do so in order to support the judgment. If, by any usage of the English language, the finding that Adams has not paid for the plaintiff's services can be construed to imply that the debt to the plaintiff remains unpaid, then upon this appeal the finding is sufficient on that point. A payment by one joint obligor is, in contemplation of law and so far as the obligee is concerned, a payment by all. Each joint obligee is in law the agent of the others to make such payment. If one of the others had in fact paid the plaintiff, he would have paid for Adams as well as himself, and it would be a legal truth that Adams had paid. So the statement that Adams has not paid, in its broadest sense, is a statement that he has not paid either in person or by his co-obligors. So understood, it means that none of them has paid, and that the debt remains unpaid. This form of statement might be insufficient in a pleading, if the objection were raised by demurrer, but it is sufficient in a finding upon an appeal from the judgment-roll alone. The judgment is affirmed.

Sloss, J., Angellotti, J., McFarland, J., Henshaw, J., and Lorigan, J., concurred.

[L. A. No. 1781. In Bank.-April 2, 1907.]

B. W. HAMLIN, Appellant, v. PACIFIC ELECTRIC RAILWAY COMPANY, Respondent.

NEGLIGENCE-STREET RAILWAY-DUTY OF TRAVELER ON TRACK-REASONABLE CARE.-One riding or walking along the track of a streetrailway company must use reasonable care in the exercise of his faculties of sight and hearing to watch and listen for cars going in either direction. A failure to hear or see the car is not, per se, proof of negligence in all cases. Whether such exercise of the faculties as, under all the circumstances of the case, was reasonable, would have averted the injury is a question of fact. The degree of vigilance to be exercised by the person on the track is to be determined by the jury, and not laid down as matter of law, wherever the question of contributory negligence is proper to be submitted to the jury at all.

ID. BICYCLE RIDER INSTRUCTION CONTRIBUTORY NEGLIGENCE—EVIDENCE. In an action by one riding a bicycle along the track of a street railway, to recover for personal injuries inflicted by a car of the defendant, an instruction to the jury which required the exercise by the plaintiff of a greater degree of care than the law demanded is without prejudice, and will not warrant a reversal of a judgment for the defendant, when the undisputed evidence contained in the record on appeal showed that the plaintiff's conduct while so riding was so lacking in every element of proper care for his own safety that the court would have been bound to set aside any verdict based upon a finding that he had not been guilty of contributory negligence.

ID.-APPEAL ERROR IN INSTRUCTION MUST BE SHOWN BY EVIDENCE.— It is incumbent upon the party appealing to show, not only abstract error, but error prejudicial to him upon the facts in evidence, and to avail himself of the point that an instruction was erroneous, he must bring before the court sufficient evidence to show that, upon a proper instruction, there might have been a finding in his favor. ID. LAST CLEAR CHANCE.-In such an action, an instruction purporting to state the law on the subject of the care to be exercised by the plaintiff to avoid injury, which is silent as to the law of the "last clear chance" doctrine, is not erroneous, if the instructions taken as a whole fully charged the jury as to that doctrine.

ID. INSTRUCTION ASSUMING FACTS - EVIDENCE SUSTAINING ASSUMPTIONS.-It was not error to charge the jury that "If you find from the evidence that the motorman in charge of defendant's car, when about a block away from the point of the accident, saw the plaintiff riding upon his bicycle between the inner rails of the defendant's east-and-west tracks, and far enough away from the track on which

he was propelling his car so that his said car could have passed the said plaintiff safely, and that he gave warning of his approach, and that the front of his car did pass the plaintiff, and that the plaintiff then, either through excitement or otherwise, lost his balance, veered in towards the car, and that the hind step of said car struck plaintiff, and that the said car was traveling upon a straight track at the time of the accident, then I charge you that your verdict must be for the defendant," when there was evidence which, if believed by the jury, sustained each element of the hypothesis stated in the instruction.

ID. PRESUMPTION OF CARE IN STARTING TO RIDE ON TRACKS.-Where all the evidence showed that the plaintiff had been riding along or upon the track for a block and a half before he was struck by the defendant's car, it is immaterial whether he had exercised due care at the time he started to ride along the street; and an instruction that the law presumes, in the absence of evidence to the contrary, that he looked and listened to ascertain whether a car was approaching from the rear, before getting upon the track, is properly refused as being inapplicable to the facts.

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. N. P. Conrey, Judge.

The facts are stated in the opinion of the court.

J. H. Ardis, and Kendrick & Knott, for Appellant.

Bicknell, Gibson, Trask, Dunn & Crutcher, and Norman S. Sterry, for Respondent.

SLOSS, J.-This action was brought by the plaintiff to recover damages for personal injuries sustained by him. Plaintiff was riding on a bicycle along a street in the city of Los Angeles, when he was overtaken and struck by an electric car operated by the defendant. The verdict was in favor of the defendant, and plaintiff appeals from the judgment upon this verdict and from an order denying his motion for a new trial.

The only points made by appellant are that the court erred in giving two instructions to the jury, and in refusing to give a third one upon the request of the plaintiff.

1. Complaint is made of the following instruction given by the court: "The tracks of a street-railway company are in themselves a sign of danger, and one riding along or

between the tracks of a street-railway company must exercise his faculties of sight and hearing to watch and listen for cars going in either direction; and if by exercising his sight and hearing, he could see or hear the car approaching either in front or behind him and he fails to see or hear such car and is injured thereby, and his failure to see or to hear the car contributes in the slightest degree or in any manner whatever directly or proximately to the collision between himself and the car, then I charge you that he cannot recover for any injuries he may sustain by such a collision." No particular criticism is directed against the first part of the instruction. The contention is that the italicized portion is erroneous, in that it requires one riding along or between the tracks of a street-railroad company to exercise more than reasonable care to avoid injury, and debars him from recovery if it was at all possible for him, under any circumstances, to have seen or heard an approaching car. In other words, the instruction in effect requires one upon the track to maintain a constant watch in every direction, and declares that if, by maintaining such watch, and at the same time using his faculty of hearing, he could have seen or heard an approaching car in time to avoid a collision, his failure to see or hear it is, as a matter of law, negligence. As a statement of an abstract legal proposition we think this instruction laid down too stringent a rule, as applied to the conduct of persons proceeding along a streetrailroad track. Generally, whether a party has been negligent is a question of fact depending upon a consideration of all the circumstances surrounding the case. And this, like other questions of fact, is to be determined by the jury under proper instructions from the court. "The rule is, that negligence is a question of fact for the jury, even when there is no conflict in the evidence, if different conclusions can be rationally drawn from the evidence." (Herbert v. Southern Pacific Co., 121 Cal. 227, [53 Pac. 651].) There are, however, certain classes of cases which have occurred so frequently that a definite standard of care required in particular circumstances has been laid down by the courts, and in each of such classes there has been developed a rule declaring that a failure to comply with such standard is, as a matter of law, negligence. Thus it is well settled that the "railroad track of a steam railway must itself be regarded as a sign of danger,