thereof the commission had no jurisdiction to make an allowance to him upon the sole ground that in the course of the proceedings it appeared that he, a stranger to the record, had made such disbursement.

The order is annulled.

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

[Civ. No. 2145. First Appellate District.-October 23, 1917.] MARTHA R. HATHAWAY, Respondent, v. ROBERT L. COLEMAN et al., Appellants.

NEGLIGENCE PERSONAL INJURIES-TAXICABS-DANGEROUS ROUTE-NEW TRIAL-DISCRETION OF COURT.-The discretion of the trial court in granting a new trial to the plaintiff in an action for damages sustained while traveling as a passenger in a taxicab of the defendant, should not be interfered with when it appears that the route taken by the driver was a dangerous one and there were other routes available.

APPEAL from an order of the Superior Court of the City and County of San Francisco granting a new trial. John Hunt, Judge.

The facts are stated in the opinion of the court.

Edwin H. Williams, for Appellants.

Edward C. Harrison, Maurice E. Harrison, and Daniel A. Ryan, for Respondent.

THE COURT.-The plaintiff brought an action against the defendants for damages for personal injuries suffered while she was riding in a taxicab operated by an agent of the defendant. The case was tried before a jury, and it resulted in a verdict for the defendant; but upon a motion for a new trial, made upon all of the statutory grounds, the court made a general order granting a new trial; and the appeal is taken from that order.

The accident out of which the case arose occurred in the following manner: The plaintiff, who desired to go to a certain hospital known as St. Joseph's Hospital, from some point in the busy section of San Francisco, engaged the taxicab and its driver and directed him to take her to the St. Joseph's Hospital. It appeared that the driver of the taxicab did not know just where the hospital was, although he was otherwise a trained, skillful, and experienced driver of taxicabs, having driven such vehicles in the city mentioned for several years, and being, as the evidence shows, familiar with the streets of that city. He asked the plaintiff where St. Joseph's Hospital was, and she informed him it was out Haight Street, on Buena Vista Avenue. The driver proceeded out Haight Street and went up two steep hills to reach the hospital. Arriving at her destination the plaintiff alighted, went into the hospital, remained a while, and then came out and re-entered the taxicab. The driver undertook to return by the same route he had taken to reach the hospital. He descended one of the hills, which the evidence shows was the only feasible route at that point, and arrived at Haight Street, where there was another hill to descend. It had been raining and the streets were wet. The driver undertook to go down this hill on Haight Street, and on the way down the vehicle skidded and collided with a post, and the plaintiff was injured.

Upon the trial of the case the plaintiff undertook to show by witnesses that there were other routes by which the driver could have avoided going down this steep hill on this rainy day; that by taking a detour he could have avoided the steep declivity. The court refused to permit that proof to be made, to which refusal an exception was taken. There is, however, in the record some evidence that there were other such routes and that the driver knew of them.

The appellants contend here that the verdict was properly in their favor, for the reason that the driver took the route directed by the plaintiff, and that as a matter of law the plaintiff, having directed the driver to take a particular route, cannot maintain an action for damages if an injury occurs while the driver is obeying that direction. The evidence, however, in the case apparently in the opinion of the trial court as it seems to us also does not go so far as to amount to a direction on the part of the plaintiff that the driver take a particular route, because while he did not know where the

particular hospital was, the evidence shows that he knew all the streets of the city; that he had driven up and down this particular street before, and that the only direction she gave was the one as to the location of the hospital, namely, on Buena Vista Avenue, and was not a direction to him to pursue a particular route. But, however that may be, that direction only had reference to the route out and up the hill, and the plaintiff gave no direction as to the route which the driver should pursue on the return journey; and it may well be that the trial court took the view that while it might not have been dangerous to ascend this hill upon a rainy day, it was a matter of great danger to undertake to descend it when there were other routes available. It seems to us that these considerations may well have entered into the conclusion of the court in granting a new trial. We think that the discretion of the court thus exercised should not be interfered with under the circumstances.

The order is affirmed.

[Civ. No. 2231. First Appellate District.-October 23, 1917.] SONOMA VALLEY WATER, LIGHT & POWER COMPANY (a Corporation), Respondent, v. NELLIE O'BRIEN et al., Appellants.

WATER RIGHTS QUANTITY OF WATER NECESSARY TO USE-CONFLICT OF EVIDENCE-NEW TRIAL.-In an action to enjoin the taking and using of all the water from a creek, an order granting a new trial is justified where the judgment gave the defendants all the water and the evidence was sufficiently conflicting to justify a conclusion that all the water was not necessary to the uses to which it was applied.

APPEAL from an order of the Superior Court of Sonoma County granting a new trial. Emmet Seawell, Judge.

The facts are stated in the opinion of the court.

T. J. Butts, and J. T. Campbell, for Appellants.

THE COURT.-This is an appeal on the part of the defendants from an order granting a motion for a new trial

after a verdict and judgment in their favor. The verdict of the jury was rendered upon special issues, and its findings thereon were adopted by the court as the basis of its judgment.

The action was instituted by the plaintiff, a corporation owning lands adjoining the lands of the defendants, to enjoin the latter from taking and using the whole of the water from a creek known as Lenox Creek, which rose upon and flowed through their lands, emptying into Carriger Creek and thence over and across the lands of the plaintiff. The evidence showed that the defendants had appropriated all of the water of Lenox Creek for their own uses, and in addition to using the same for irrigation, household, and domestic purposes, ran the residue of its waters after these uses had been satisfied into a pool or lake near their residence. The issues in the case arose over the amount of water which the defendants were entitled to divert into this pool or lake. The findings of the jury and the judgment of the court gave the defendants all of these waters, but upon motion for a new trial the court granted the motion solely upon the ground that the defendants took more water from said Lenox Creek than was necessary for the uses to which it was applied. The language of the court in its order granting the new trial was as follows: "The court has made a careful examination of the evidence, and it is not satisfied that there is not a useless waste of water. Indisputably the defendants are entitled to a sufficient quantity to answer every reasonable convenience or necessity, but it is not the law that water may be wasted while it may serve others. On this issue alone the court grants the motion for a new trial."

The contention of the appellants upon this appeal is that the evidence was insufficient to justify the court in granting the motion for a new trial upon this ground. We have examined the record with some degree of care, and are of the opinion that the evidence was sufficiently conflicting to have justified the court in granting the motion for a new trial if, as he stated, he was not satisfied that the proofs showed that all of the water was necessary for the purposes to which it was applied. That being so, we think that the order of the trial court should be affirmed, and that will be the order.

[Civ. No. 2245. First Appellate District.-October 24, 1917.]

SAMUEL A. MAYER, Respondent, v. ISAAC GOLDMAN, Appellant.

NEW TRIAL-DISCRETION-APPEAL.-An order granting a

new trial

is largely a matter of discretion, and where the evidence is sharply conflicting, the exercise of the discretion will not be interfered with on appeal.

APPEAL from an order of the Superior Court of the City and County of San Francisco granting a new trial. W. M. Conley, Judge Presiding.

The facts are stated in the opinion of the court.

M. H. Wascerwitz, for Appellant.

Henry G. W. Dinkelspiel, for Respondent.

THE COURT.-In this action, after judgment for defendant for his costs, the trial court granted plaintiff's motion for a new trial, which was based upon the grounds, among others, that the evidence was insufficient to justify certain findings, and that the court failed to find upon material issues. Defendant appeals.

As has been so often stated by appellate courts, the granting of a motion for a new trial or its refusal is largely a matter of discretion in the trial court, and where, as here, the evidence is sharply conflicting, the court may well, upon consideration of a motion for a new trial, take a different view of its effect than upon its first presentation, and arrive at the conclusion that its findings as made are insufficiently supported by it. With the discretion of the court thus exercised this court will not interfere.

The order is affirmed.