Mr. Presiding Justice Gridley
delivered the opinion of the court.
Abstract of the Decision. 1. Municipal corporations, § 974*—when evidence sufficient to show that alley is public. In an action against a city to recover for death alleged to be due to obstructions negligently permitted to remain in an alley, where the declaration alleges the alley to be a public alley, and where there is uncontradicted evidence supporting the allegation, held that the fact alleged was sufficiently proved, where the point was not raised in the trial court, and where the case was there tried, without objection, on the theory that the alley was public, although no evidence was offered to show an acceptance or dedication of the alley. 2. Negligence, § 196*—when proximate cause a question of fact. In an action to recover for death, although there may be two equally tenable theories as to what was the proximate cause of the accident causing the death sued for, one of which would excuse defendant, yet if there is evidence tending to show that defendant’s negligence is such proximate cause, the question as to proximate cause is a question of fact for the jury, and their verdict is final. 3. Municipal corporations, § 1098*-—when evidence sufficient to show negligence in permitting obstruction of street. In an action against a city to recover for death due to a fall from a high load, which fall was caused by deceased’s striking steam pipes maintained across a public alley in which deceased was driving a team, evidence held to tend to show that the pipes were an obstruction, and that the city in permitting them to remain in the ■ alley was negligent. 4. Negligence, § 156*—when due care may be shown by circumstantial evidence. In an action for death' caused by deceased’s being knocked off a high load by coming in contact with pipes which defendant negligently maintained in an alley where the accident occurred, where there was no direct evidence as to the care used by deceased other than that he was an ordinarily careful man, and a good horseman, held that the jury were warranted in finding deceased not guilty "of contributory negligence, although it appeared that at the time of the accident, deceased must have been standing on top of the load, which was loosely built up on a lumber wagon and not bound on with a chain or other device, for the reason that due care on the part of deceased may be shown as well by circumstances as by direct testimony, and may be inferred from deceased’s habits, and what are known to be the instincts of self-preservation in persons possessed of their natural faculties and are ordinarily sober and careful of their safety. 5. Appeal and error, § 1622*—when error in admitting evidence cured. The verdict of a coroner’s jury being competent evidence, its admission was not error although a portion of it may be prejudicial to defendant, where the court, at the request of defendant, instructed the jury to disregard such prejudicial portion and not to consider it in making their verdict. 6. Appeal and error, § 1466*—when admission of evidence harmless. In an action to recover for death due to a fall from a high load, the admission of testimony of a witness who did not see the accident, but testified as to the conduct of the deceased prior to it and to what happened immediately after, as tending to show that deceased’s fall was caused by being struck by pipes maintained by defendant across the alley where the accident occurred, held not prejudicial error. 7. Appeal and error, § 1466*—when admission of evidence as to experiments harmless. In an action to recover for death due to a fall from a high load, the admission of testimony of a witness who did not see the accident, as to experiments made by him after the accident, as to whether one standing on a load similar to that on which deceased was standing at the time of the accident, and which tended to confirm the theory of the plaintiff that the accident was caused by deceased’s being struck by the pipes, held not prejudicial error. Free access — add to your briefcase to read the full text and ask questions with AI