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and by express provision of that section, appellant is entitled to be present at the time of the making of any such order. (See People v. Chew Lan Ong, 141 Cal. 553.)

[6] Finally it is urged that the trial court erred in refusing to permit testimony to be given by appellant and his mother with reference to his character and previous habits. It is not claimed that the offered testimony was relevant or material on the issue of either guilt or degree of crime, but simply that inasmuch as the jury had the right to assess the punishment in the event of conviction at either death or life imprisonment, appellant was entitled to have admitted for their consideration evidence as to matters not otherwise relevant or material. We are of the opinion that our law does not contemplate any such independent inquiry on a trial for murder, and that the determination of the jury, under the provisions of section 190, Penal Code, as to death or life imprisonment, is necessarily to be based solely on such evidence as is admissible on the issues made by the indictment or information and the plea of the defendant. But if we assume otherwise, we are nevertheless satisfied from an examination of the record that it cannot be held that defendant was denied the opportunity by any ruling of the trial court of showing any extenuating fact or circumstance that could have properly affected the verdict. So far as he himself was concerned, he fully testified as to his condition the evening of the homicide, said that he had no place to sleep, was "broke", out of work, had no supper that evening. His answers to the remaining two or three questions to which objections were sustained could not have added to the effect of this. The only other witness on this branch was appellant's mother, who testified as to her age, that of the appellant, her own occupation. Objections were sustained to questions asking her how long has it been since appellant resided with her and his father, whether the father was still living, what occupation appellant has followed during the last year, what his education had been, when she herself came to Los Angeles. No statement was made as to the object of these questions, or what it was expected to show thereby. We cannot perceive that they had any legitimate bearing on any question to be determined by the jury, and can see no reason to assume that answers to the same could have affected the verdict in any way.

The judgment and order denying a new trial are affirmed. ANGELLOTTI, C. J.

We concur:

SLOSS, J.

MELVIN, J.

SHAW, J.

LORIGAN, J.

HENSHAW, J.

LAWLOR, J.

S. F. No. 7213. Department Two. April 28, 1915. *GEORGE W. PENNINGTON, Plaintiff and Respondent, v. GEORGE W. PENNINGTON SONS (a Corporation), and THOMAS PEN, NINGTON, as president, and ELIZABETH P. WEST, as secretary thereof, Defendants and Appellants.

[1] CORPORATION LAW-ANNUAL MEETING OF STOCKHOLDERS- -CALLING BY PRESIDENT-CONSTRUCTION OF BY-LAW-DUTY MANDATORY.— The duty of the president of a corporation to call an annual meeting of the stockholders, under a by-law providing that "the annual meeting of the stockholders may be held in the first week of December in each year and shall be called as the directors may direct, or by a notice in writing by the president, delivered or mailed to each stockholder personally", is mandatory, and not merely permissive.

Appeal from the Superior Court of the City and County of San Francisco-George E. Crothers, Judge.

For Appellants-Edwin L. Forster, Robert R. Moody.

For Respondent--Arthur H. Barendt.

The complaint in this action charged and the court found that George W. Pennington Sons is a corporation; that the number of directors of this corporation is five; that by death there is a vacancy on the board and this vacancy has never been filled; that Thomas Pennington is the president of the corporation, and, though requested so to do by a majority of the stockholders, he has refused to call any meeting of the board of directors for the purpose of filling this vacancy, and he has also refused to call any meeting of the stockholders, though the written request of the holders of the majority of the issued and authorized capital stock has been made upon him, in conformity with the by-laws of the corporation. The by-laws in this respect provide "The annual meeting of the stockholders may be held in the first week of December in each year and shall be called as the directors may direct, or by a notice in writing by the president, delivered or mailed to each stockholder personally". The judgment of the trial court directed the president to call a meeting of the stockholders as contemplated in this by-law.

[1] Upon appeal it is argued that the by-laws do not enjoin the duty of calling such a meeting upon the president; that a mere permissive power so to do is vested with him; that the mandatory provision applies to the directors only. With this we cannot agree. Both the alternative methods provided are equally mandatory. It is in contemplation that there shall be an annual meeting of stockholders and that it shall be called. If the directors for any reason fail to do this, then it becomes the duty of the president so to do.

The judgment appealed from is therefore affirmed.

We concur:

MELVIN, J.

LORIGAN, J.

HENSHAW, J.

* On hearing after judgment in District Court of Appeal, First District (19 Cal. App. Dec. 519).

S. F. No. 6439. Department Two. April 28, 1915. THOMAS LYNN, Plaintiff and Appellant, v. J. W. GOODWIN, Defendant and Respondent.

[1] ACTION FOR DAMAGES-AUTOMOBILE COLLISION-INJURY TO PASSENGER-EVIDENCE-INTEMPERATE HABITS OF DRIVER-ADMISSION NOT ERRONEOUS. In an action for damages for personal injuries received while riding in an automobile by reason of the collision thereof with another automobile, the admission of evidence of the intemperate habits of the driver of the plaintiff's machine and that in times past he had frequently driven in an intoxicated condition and had been subject to seizures when at the wheel which temporarily made him helpless and unable to control his machine, is not injurious, where there is abundant evidence that at the time of the accident the driver was under the influence of liquor and that the plaintiff must have known it.

[2] ID. INJURY TO PASSENGER-NEGLIGENCE OF DRIVER WHEN BAR TO RECOVERY-RIDING WITH INTOXICATED DRIVER.-While it is true that in general the negligence of the driver of a vehicle is not imputable to a passenger so as to bar the passenger's right of recovery, yet the conduct of the passenger in riding and in continuing to ride in an automabile when he must have known that the driver was intoxicated, establishes independent negligence upon his part, apart from the driver's negligence, which operates as such a bar.

Appeal from the Superior Court of Santa Clara County-J. R. Welch, Judge.

For Appellant-Rogers, Bloomingdale & Free.

For Respondent-Wright & Wright & Stetson; Louis O'Neal; James P. Sex.

Plaintiff sought damages for personal injuries to himself arising out of an automobile collision. The case was tried before the court without a jury, and the findings of the court were that P. W. Metcalf was driving the car in which plaintiff was seated; that Metcalf approached a wagon with a large load of brush; that the load of brush was nine feet or more in width and obstructed the view of Metcalf and plaintiff and prevented them from seeing the roadway in front; that they turned to the left to pass this load of brush and collided with defendant's automobile. This automobile was in all respects being carefully and prudently handled, saving that it was being driven at a speed of about twenty-five miles an hour. Metcalf was driving his automobile at about twenty miles an hour. The collision would probably have taken place if defendant's automobile had been traveling at a rate of speed of twenty miles an hour. The collision would not have taken place if Metcalf had not driven his automobile to the extreme westerly side of the road and across the pathway which was being followed by the automobile of defendant. The automobile of defendant was at the extreme right hand part of the road, where it should have been. Metcalf's recklessness in driving was the direct, proximate and primary cause of the collision, and Metcalf when so driving and when the accident occurred was under the influence of liquor and was drunk. Plaintiff, his companion, knew this, and a reasonably prudent person would not have ridden in the automobile with Metcalf in his condition of inebriety.

Evidence of Metcalf's intemperate habits was admitted and also evidence that in times past he had frequently driven in an intoxicated condition and had been subject to seizures when at the wheel which temporarily made him helpless and unable to control his machine. It is argued that the admission of this evidence was incompetent. [1] Without passing upon this question, suffice it to say that it was not injurious, for the evidence was abundant that at the time of the accident Metcalf was under the influence of liquor and plaintiff must have known it. [2] While it is true that in general the negligence of the driver of a vehicle is not imputable to a passenger so as to bar that passenger's right of recovery (Breese v. Los Angeles Traction, 149 Cal. 131) yet the conduct of the plaintiff in riding and in continuing to ride in an automobile when he must have known that the driver was intoxicated, established independent negligence upon the plaintiff's part, apart from the driver's negligence, barring the right of recovery. (Breese v. Los Angeles Traction, supra, p. 137; Meenagh v. Buckmaster, 50 N. Y. Supp. 84; Read v. N. Y. Cent. R. R. Co., 107 N. Y. Supp. 1068; Brommer v. Penn. R. Co., 179 Fed. 581.)

The judgment and order appealed from are therefore affirmed.

HENSHAW, J.

We concur:
MELVIN, J.
LORIGAN, J.

Sac. No. 2132. Department One. April 29, 1915.

JOHN FAIRBAIRN, by J. T. FAIRBAIRN, Guardian ad Litem, Plaintiff and Respondent, v. AMERICAN RIVER ELECTRIC COMPANY, Defendant and Appellant.

[1] ELECTRIC COMPANY-ALTITUDE OF WIRES-DEGREE OF CARE.— A person or company maintaining an electric power transmission line along or over a public or private road is required to exercise a high degree of care in placing the wires so as not to interfere with traffic on the ordinary highway and so as to avoid contact with and injury to any person or object which may reasonably be expected to pass under the wires.

[2]

ID.-ID.-ID.-MAINTENANCE OF POWER LINE ALONG PUBLIC ROAD WIRES OF HEIGHT OF OTHER COMPANIES-ABSENCE OF NEGLIGENCE ATTEMPTED PASSAGE UNDER WIRES WITH HAY DERRICK-PERSONAL INJURY-NON-LIABILITY OF COMPANY. An electric power company is not guilty of negligence in maintaining a transmission line carrying a heavy current of electricity along a public road with the wires too close to the surface of the ground, where such wires are maintained at a height of 27 feet and 8 inches, the usual height of the wires of other transmission lines, and no recovery can be had against such company for personal injuries received in endeavoring to pass under such wires with a hay derrick whose boom extended 30 feet and 4 inches above the ground.

Appeal from the Superior Court of Sacramento County-C. N. Post, Judge.

For Appellant-L. A. Redman; Chickering & Gregory; Devlin & Devlin, of Counsel.

For Respondent-Stanley Moore; Gibson & Woolner,

The plaintiff recovered judgment for damages in an action for bodily injuries alleged to have been caused by the negligence of the defendant. The appeals are from the judgment and from an order denying a new trial.

The alleged negligence of the defendant was the maintaining of a power line carrying a heavy current of electricity along a public road with the wires too close to the surface of the ground, and without covering the wires with insulating material, in consequence whereof the boom of a hay derrick which the plaintiffs and others were passing under said wires to enter said road from a lane leading into it, came into close proximity to the wires and electricity therefrom passed down the boom cable into the body of the plaintiff, causing the injuries complained of.

The defendant answered, denying the alleged negligence and alleging that the injuries were cause by the plaintiff's negligence. We are of the opinion that the plaintiff failed to prove the alleged negligence of the defendant.

No evidence was offered to show that the power wires should or could have been insulated by a covering for that purpose. The only evidence on the subject of insulation was given in behalf of the defendant, to the effect that wires carrying over 20,000 volts of electricity could not be successfully insulated by any known covering, that if the wire carried more than 10,000 volts it was preferable to use bare wires and that such was the invariable custom of electrical power companies. The defendant's line consisted of three wires carrying at the time of the accident 44,000 volts in all. This, according to the evidence, was the equivalent of a little over 25,000 volts to each wire.

[1] Owing to the highly destructive power of electricity when carried in quantities sufficient for power purposes, and to the fact that it is not visible to the eye or apparent to the other senses, a person or company maintaining an electric power transmission line along, or over a public or private road, is required to exercise a high degree of care in placing the wires so as not to interfere with traffic on the ordinary highway and so as to avoid contact with and injury to any person or object which may reasonably be expected to pass under the wires. (Giraudi v. Electric I. Co., 107 Cal. 124; Perham v. Portland E. Co., 33 Ore. 478; Fitzgerald v. Edison etc. Co., 200 Pa. St. 543; Crosswell on Electricity, sec. 234.) "The companies are not insurers of the safety of the public against all dangers arising from the lawful placing in the street of appliances pertaining to the business carried on by them, but they are bound to know the danger which may naturally be caused by such use of the streets, and to guard against them by the exercise of all the foresight and caution which can be reasonably expected of prudent men, under the circumstances." (1 Joyce on Electricity, sec. 438; Denver v. Sherett, 88 Fed. 233.) "The degree of care required of such companies, under the rule that they must exercise reasonable care, varies according to the facts and circumstances of the case, having in view the serious results which may ensue as a consequence of negligence." (1 Joyce on Electricity, sec. 438a.) The standard to be attained is that of ordinary and reasonable

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