Pac. 974; Lange v. Schoettler, 115 Cal. 388, 392, 47 Pac. 139; Ruppel v. United R. of San Francisco, 1 Cal. App. €66, 82 Pac. 1073.

17. Measure of compensation to mi. nors for death of parent.-Children have the right to receive from their father comfortable support and reasonably good education until they shall arrive at sufficient age to maintain themselves; and where the father, whilst able to perform this duty towards his children, loses his life through negligence of another, it was the intention of the statute to compel the offending party to make fair and just compensation for the injury. To accomplish that end would require a larger sum for a numerous family than if it consisted of but one or two persons. In like manner, if there be a surviving widow, who, if her husband had lived, would have been entitled to support from him appropriate to his circumstances and condition in life, she would be entitled to be fairly and justly compensated for loss in this respect which she suffered by his death: Taylor v. Western Pacific R. Co., 45 Cal. 323, 329, 336.

18. Statutory limitation upon damages. -Under a statute limiting the amount of damages in an action for wrongful death, it is held that damages in such an action, the same being purely statutory, must be limited to the amount recoverable under the statute as the same existed at the time the accident happened. Where the legislature afterward increased the measure of damages recoverable in such actions, and this increase was in operation at the time of the trial, it is held that the effect was to create a new cause of action for the amount of the increase, and in this create a new right, and did not merely change the remedy: Keeley v. Great Northern R. Co., 139 Wis. 448, 121 N. W. 167, 170.

19. Passenger in automobile.-Death resulting from negligence.-A complaint in an action by a wife to recover damages for personal injuries received by her husband, and which resulted in his death while a passenger in an automobile run for hire, has been held sufficient, and judgment affirmed thereon, where such complaint, in substance, charges: That on the 14th day of September, 1907, the plaintiff's husband became a passenger in an automobile run

for hire; that he was being conveyed therein from the city of Seattle to a point known as "The Meadows," some distance south of the city; that a car of the defendant, operated by electricity, through the negligence of the defendant's servants, ran into the automobile, overthrowing the same, and throwing the husband of the respondent out of the automobile and upon the planking in the highway at the place of contact with such force and violence as to produce injuries from which he died on the 27th day of October following, etc.: Wilson v. Puget Sound Electric Car Co., 52 Wash 522, 101 Pac. 50, 51, 132 Am. St. Rep. 1044.

20. DEFENSES. Contributory negligence of parent.-In an action for the alleged wrongful death of an infant, the contributory negligence of the parent suing may be invoked against such parent, and is always available as a defense where such contributory negligence of the defendant exists: Palmer v. Oregon S. L. Co., 34 Utah 466, 98 Pac. 689, 697.

21. Unskilful treatment of patient.The fact that a person injured is unskilfully treated, and that this contributed to his death, is no defense to an action for damages for causing his death: Nagel v. Missouri etc. R. Co., 75 Mo. 653, 42 Am. Rep. 418; Murphy v. Southern Pacific Co., 31 Nev. 120, 101 Pac. 322, 329.

22. Defendant's liability in an action for causing death by negligence does not cease because the injured person did not adopt the best remedies or follow implicitly the directions of his physi. cian: Texas etc. R. Co. v. Orr, 46 Ark. 182; Murphy v. Southern Pacific Co., 31 Nev. 120, 101 Pac. 322, 329.

23. Defenses of assumption of risk and contributory negligence of deceased.-In action by representatives to recover for death of deceased, and for alleged negligence of defendant, a judgment for the defendant was affirmed on the affirmative defenses, in substance, as follows: That said William Hollingsworth, Sr., [alleged in the complaint to have been killed by falling down an abandoned shaft on the property of the defendant,] had full knowledge of the condition of the shaft and of its dangerous character; that defendant had, prior to the 3d day of October, 1906, [the date of the death of the said Hollingsworth,] used

easonable care in the repair of the shaft, and had placed it in a reasonably safe condition; that defendant had no notice or knowledge that the shaft had become out of repair or dangerous, until the 4th day of October, 1906; that if the shaft became dangerous or defective on the evening of the 3d day of October, 1906, the same was unknown to defendant; that said Hollingsworth had full knowledge of the condition of the shaft, and of the fact that it had become dangerous on the evening of October 3, 1906, and prior to the alleged accident, and told various men working with him for defendant of its condition, and advised them to notify defendant thereof immediately on the morning of October 4, 1906, and that, with full knowledge of the dangerous condition of the shaft, said Hollingsworth voluntarily continued his work as engineer without any objection, and thereby assumed all risk; that it was not necessary for Hollingsworth to approach the shaft in the per

formance of his duties as engineer; that, if he approached said shaft, it was upon his own suggestion and for his own individual purposes, with full knowledge of its dangerous condition, and without any instruction from defendant or necesIsity of the performance of his duties; that said Hollingsworth was killed because of his own contributory negligence: Hollingsworth v. Davis-Daly E. C. Co., 38 Mont. 143, 99 Pac. 142.

24. Negligence and contributory negligence. Questions of fact.-In general, all the questions as to the negligence of the defendant or the contributory negligence of the plaintiff are for the jury to determine. It is only when the character of the negligence is affirmatively conclusive and leads to an irresistible inference that the court will determine its character and effect. See Schneider v. Market Street R. Co., 134 Cal. 482. 487, 66 Pac. 734, (by parent for damages resulting in the death of son-negligence of street railway company at crossing).

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the other half to the county; and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.

c lowa, 2072. A bell and a steam whistle shall be placed on each locomotive engine operated on any railway, which whistle shall be twice sharply sounded at least sixty rods before a road crossing is reached, and after the sounding of the whistle the bell shall be rung continuously until the crossing is passed; but at street crossings within the limits of cities or towns the sounding of the whistle may be omitted, unless required by ordinance or resolution of the council thereof; and the company shall be liable for all damages which shall be sustained by any person by reason of such neglect. Any officer or employee of any railway company violating any of the provisions of this section shall be punished by fine not exceeding one hundred dollars for each offense.

d Kansas, § 1389. A steam whistle shall be attached to each locomotive engine, and be sounded three times at least, eighty rods from the place where the railroad shall cross any public road or street, except in cities and villages, under a penalty of not more than twenty dollars for every neglect of the provisions of this section, to be paid by the corporation owning the railway on the suit of the county attorney, one-half thereof to go to the informer, and the other half to the county for the support of common schools; and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect: Provided, however, that such penalty shall be sued for within one month from the time the cause of action accrues, and not thereafter: And provided further, but that one penalty shall be recovered in any one action.

e Minnesota, § 5001. Every engineer, driving a locomotive on any railway, who shall fail to ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded, at least eighty rods from any place where such railway crosses a traveled road or street, on the same level (except in cities), or to continue the ringing of such bell or sounding of such whistle at intervals until such locomotive and the train thereto attached shall have completely crossed

such road or street, shall be guilty of a misdemeanor.

f Missouri, § 1102. A bell shall be placed on each locomotive engine, and be rung at a distance of at least eighty rods from the place where the railroad shall cross any traveled public road or street, and be kept ringing until it shall have crossed such road or street, or a steam whistle shall be attached to such engine and be sounded at least eighty rods from the place where the railroad shall cross any such road or street, except in cities, and be sounded at intervals until it shall have crossed such road, or street, under a penalty of twenty dollars for every neglect of the provisions of this section, to be paid by the corporation owning the railroad, to be sued for by the prosecuting or circuit attorney of the proper circuit, within ten days after such penalty was incurred, one-half thereof to go to the informer, and the other half to the county; and said corporation shall also be liable for all damages which any person may hereafter sustain at such crossing when such bell shall not be rung or such whistle sounded as required by this section: Provided, however, that nothing herein contained shall preclude the corporation sued from showing that the failure to ring such bell or sound such whistle was not the cause of such injury.

g Nebraska, § 2047. A bell of at least thirty pounds weight or a steam whistle shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said railroad shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of fifty dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer, and the other half to this state, and also be liable for all damages which shall be sustained by any person by reason of such neglect. Provided, that this section shall not apply to cars or trains operated by electricity and that such electric cars and trains shall be equipped with air whistles which shall be whistled as herein provided.

h Nevada, § 1012, substantially same as Arizona 869. 1 New Mexico, § 3859, same as Arizona ¶ 869.

substantially

J North Dakota, § 4295, substantially same as Arkansas § 6595, except in line 10, after "penalty of" change "two hundred" to "fifty" before "dollars"; also in fourth line from the end change "county" to "state."

k Oklahoma, § 1057, substantially same as North Dakota § 4295, except in line 3 the word "eighty" before "rods" is changed to "eight," aparently in error. 1 South Dakota, Civ. Code, § 538, substantially same as North Dakota, § 4295. m Texas, Art. 4507. A bell of at least thirty pounds weight and a steam whistle shall be placed on each locomotive engine, and the whistle shall be blown and the bell rung at the distance of at least eighty rods from the place where the railroad shall cross any public road or street, and such bell shall be kept ringing until it shall have crossed such public road, or stopped; and each locomotive engine approaching a place where two lines of railway cross each other, shall, before reaching such railway crossing, be brought to a full stop; and any engineer having charge of such engine, and neglecting to comply with any of the provisions of this article, shall be fined in any sum not less than five nor more than one hundred dollars for such neglect, and the corporation operating such railway shall be liable for all damages which shall be sustained by any person by reason of any such neglect; provided, however, that the full stop at such crossings may be discontinued when the railroads crossing each other shall put into full operation at such crossing an interlocking switch and signal apparatus, and shall keep a flagman in attendance at such crossing.

n Utah, § 447. Every locomotive shall be provided with a bell weighing not less than twenty pounds, which shall be rung continuously from a point not less than eighty rods from any street, road, or highway crossing, until such street, road, or highway shall be crossed, but the sounding of the locomotive whistle at least one-fourth of a mile before reaching any such crossing shall be deemed equivalent to ringing the bell as afore

said, except in towns and at terminal points; during the prevalence of fogs, snow, and dust storms, the locomotive whistle shall be sounded before each street crossing while passing through cities and towns. All locomotives with or without trains, before crossing the main track at grade of any other railroad, must come to a full stop at a distance not exceeding 400 feet from the crossing, and must not proceed until the way is known to be clear; two blasts of the whistle shall be sounded at the moment of starting; provided, that whenever interlocking signal apparatus and derailing switches are adopted such stop shall not be required. Every person in charge of a locomotive, for any neglect to observe the provisions of this section shall be deemed guilty of a misdemeanor, and the corporation shall be liable for all damages which any person may sustain by reason of such neglect. • Wisconsin, § 1809.

3. No such railroad company or corporation shall run any train or locomotive over any public traveled grade crossing within any incorporated city or village, except wherein gates are erected, maintained and operated, or a flagman is stationed, unless the engine bell shall be rung continuously within twenty rods of and until such crossing shall be reached by such train or locomotive. Provided, that flagmen or gates shall be placed and maintained, or such mechanical safety appliances shall be installed upon such street crossings in incorporated villages and cities over which trains pass as the public authorities of any such city or village may direct.

4. No such railroad company or corporation shall run any train or locomotive over any public traveled grade highway crossing, outside of the limits of any incorporated city or village, unless the whistle shall be blown eighty rods from such crossing and the engine bell rung continuously from thence until such crossing be reached by such train or locomotive. • (Amended July

12, 1907, Laws of 1907, p. 491.)