promissory note or any promissory note" but does not deny executing the instrument set out in the complaint; that defendant has no information whether or not plaintiff demanded payment of said Lewis as alleged and therefore denies that said or any demand was made on him as alleged; that having no information whether or not plaintiff is the owner and holder of said instrument, he denies the alleged ownership; further answering, alleges that the said contract "is without any consideration" and denies that there is any sum due plaintiff thereunder.

The cause was tried without a jury and the court made findings as follows: That defendant executed the promissory note and contract alleged in the complaint; that plaintiff made demand of payment on said Lewis and his refusal to pay, as alleged in the complaint; that, since March 23, 1911, plaintiff has been the owner of said instrument and that the whole amount specified therein together with interest from April 21, 1912, is due and unpaid; that it is not true that said contract was without consideration. Conclusions of law followed, that there is due plaintiff from defendant the amount claimed and interest from April 1, 1912, and that plaintiff is entitled to judgment therefor. At the trial it was admitted by defendant that the demand was made on said Lewis as set forth in the complaint; also due execution and delivery of the instrument by defendant Holbrook, therein set forth. "Mr. Sanderson" (attorney for defendant): "I have no testimony to advance in the case. It is merely a legal defense, as shown by the demurrer.” The day following the submission of the case the court rendered the following decision:

"In the case of the Yellow Jacket Gold and Silver Mining Company v. C. H. Holbrook, Jr., submitted to the court yesterday, the court has examined the only question which was raised by the defendant in the action by demurrer, and is satisfied that the com. plaint sets forth a cause of action. As to the facts in the case, they were substantially agreed to by stipulation of the parties. It results that judgment must be rendered for the plaintiff for the amount prayed for in the complaint. Let findings and judgment be prepared and entered."

Defendant appeals from the judgment.

Appellant presents the following in support of his demurrer: That Lewis was a necessary party and that there is no allegation that Lewis has received any money from the Sisson estate. The argument seems to be that Lewis is equally bound with Holbrook and, in order to end all litigation in the matter, he should have been joined as a defendant; that, "there being no allegation that Lewis had not collected the money from the Sisson estate, the presumption prevails that he has collected it and was therefore equally liable under the contract with defendant Holbrook". Counsel further states: "It is true that the defendant Holbrook agreed to pay the money sued for on April 1, 1912, in case Lewis had not paid the same by that time, but that in no wise canceled or lessened the obligation of Lewis to pay same to plaintiff if any money was received by Lewis prior thereto for

the account of Holbrook from the Sisson estate, and there is no allegation that such money was not received by Lewis."

[1] We agree with counsel that defendant promised to pay the money sued for on April 1, 1912, in case Lewis had not paid it, but we think this promise was in no wise conditional upon Lewis having at that time collected the or any money from the Sisson estate. Holbrook entered into two obligations, first by giving an order on Lewis for any money the latter might receive on Holbrook's account from the Sisson estate, which order was accepted by Lewis, and Holbrook then executed what is a promise negotiable in form to pay to the order of plaintiff a specified sum of money. This meets the definition of a promissory note. (Civ. Code, sec. 3244.) The character of the instrument signed by Holbrook as a note was not affected by the provisions of the agreement. (Jorgenson v. Jorgenson, 68 Pac. 913.) Lewis did not sign the promissory note and was not bound by it and was, therefore, not a necessary party to its enforcement in the action. His liability was on the order and if as is true Holbrook would have been liable on the order had any money been received by Lewis from the Sisson estate, still it was a joint and several liability and either or both could have been sued on the obligation. (Code Civ. Proc., sec. 383.) In this view it was immaterial whether or not Lewis had received any money from the Sisson estate. Besides, we do not think there was, as claimed, any presumption that he had received any of said money and if such presumption could be indulged it would only follow, as counsel says, that Lewis "was equally liable under the contract with defendant Holbrook", and plaintiff would still have his action against one or both. The demurrer was properly overruled.

[2] It is further contended that the findings are not supported by the evidence. It may be suggested as hardly fair to raise this question in view of the position of counsel as taken at the trial which was that he presented "merely a legal defense, as shown by the demurrer". However, we will examine the objections now made: [3] First, that there is no support of the finding that plaintiff is the owner and holder of the obligation. It was denied in the answer for lack of information. It was held, in Bank of Shasta v. Boyd, 99 Cal. 604, 606, that where the obligation is made to the plaintiff an allegation that the plaintiff is the owner is unnecessary and surplusage. (Locke v. Klunker, 123 Cal. 231, 238.) [4] Second. The answer alleged want of consideration. This was made an affirmative defense and it was incumbent on defendant to prove it. He offered no evidence whatever at the trial. The court, therefore, properly found the issue for plaintiff. "If there was no consideration the defendant should have filed an answer setting up a want of it as a defense to the action," and when alleged should have proved it. (Winters v. Rush, 34 Cal. 136; Pastine v. Pardini, 135 Id. 431, 434.) "A written instrument is presumptive evidence of a consideration." (Civ. Code, sec. 1614; Henke v. Eureka Endowment Assn., 100 Cal. 429.)

We discover no error in the record and the judgment is therefore affirmed.

We concur:

HART, J.

BURNETT, J.

CHIPMAN, P. J.

Civil No. 1528. Second Appellate District. June 3, 1914. YAHACHI SHIMODA, Plaintiff and Appellant, v. JOHN BUNDY and R. H. ARNOLD, Defendants and Respondents.

[1] ACTION FOR DAMAGES-PERSONAL INJURIES-COLLISION BETWEEN MOTORCYCLE AND AUTOMOBILE-SPEED OF AUTOMOBILE-EVIDENCE-OPINION OF PLAINTIFF ERRONEOUS EXCLUSION OF TESTIMONY -SUFFICIENCY OF OPPORTUNITY TO FORM OPINION.-In an action for damages for personal injuries received by the rider of a motorcycle in a collision with an automobile, it is error to refuse to permit the plaintiff to testify as to the speed at which the automobile was traveling at the time of the accident, upon the ground that the witness did not have sufficient opportunity to form an opinion upon the question by reason of his having been knocked down immediately, where it appears that not only did the plaintiff see the automobile before it struck him and had time to turn the handlebars so as to change his course, but saw and estimated its speed while running a distance of half a block ahead.

[2] ID.-EVIDENCE-SPEED OF AUTOMOBILE COMPETENCY OF WITNESS. A person of ordinary intelligence having opportunity for observation is competent to testify as to the speed at which an automobile is being operated at a given time.

[3] ID.-CASE AT BAR-DIRECTED VERDICT FOR DEFENDANT-UNWARRANTED PROCEEDING.-It is error in such an action to direct the jury at the close of the evidence to return a verdict for the defendant, where the facts and circumstances shown by the evidence are such that the jury might as reasonable and impartial men have drawn the inference therefrom that the defendant was negligent. [4] ID.-ID.-ID.-ID.-CONFLICT OF EVIDENCE-RULE.-It is not necessary that there should be an absence of conflict in the evidence, but, to deprive the court of the right to exercise this power, if there be a conflict, it must be a substantial one.

[5] ID. TRIAL-DIRECTED VERDICT-WHEN PROPER.-A directed verdict is proper whenever, upon the whole evidence, the judge would be compelled to set a contrary verdict aside as unsupported by the evidence.

[6] ID. OPERATION OF MOTORCYCLE-VIOLATION OF CITY ORDINANCE -FAILURE TO REGISTER MACHINE-RIGHT OF ACTION NOT AFFECTED.— The failure of the plaintiff to comply with the terms of a city ordinance requiring the registration of motorcycles as a condition of lawfully operating such vehicle, does not bar his right of recovery to damages, as such omission bore no relation to the injury and did not contribute thereto.

[7] ID.-NEGLIGENCE-VIOLATION OF ORDINANCE-RECOVERY WHEN BARRED CONTRIBUTION TO INJURY.-The violation of an ordinance which directly contributes to the injury caused by the negligence of another bars the right to recover, but where such violation bears no causal relation to nor contributes to the injuries sustained, the rule has no application.

Appeal from the Superior Court of Los Angeles CountyWalter Bordwell, Judge.

For Appellant-Flint, Gray & Barker; Gray, Barker & Bowen.

For Respondents-George P. Adams; Stephens & Stephens.

This is an action to recover damages for personal injuries alleged to have been sustained as a result of the negligence of defendants in operating an automobile which collided with a motorcycle upon which plaintiff was riding on Ninth street in the city of Los Angeles.

At the close of the evidence the jury, under direction of the trial court, returned a verdict for defendants. The appeal is from the judgment and an order denying plaintiff's motion for a new trial.

The collision occurred at a point where Ninth street, which extends east and west, intersects an alley 19 feet and 7 inches wide, extending north and south. According to plaintiff's testimony, he was engaged as a gardener and about 9 o'clock a. m. on January 19th, having completed his work, he mounted his motorcycle at a point on the west side of the alley distant 150 feet north of its intersection with Ninth street and, without using the power, but pedaling the machine, started towards Ninth street, traveling at a speed of less than five miles per hour. He was on the west side of the alley and as he neared Ninth street kept within two or three feet of the west line thereof. As he approached Ninth street he looked on both sides of the alley where it opened into Ninth street and saw a gravel wagon on Ninth street approaching from the east towards the alley, the heads of the horses drawing the wagon being distant six or seven feet from the east line thereof, and another wagon which had passed the alley going west. Although he looked, he saw no automobile and, though he listened, heard no horn or other warning of its approach. He passed out of the alley in front of the gravel wagon, immediately after which defendants' automobile, traveling west on Ninth street, struck the left side of the front wheel of plaintiff's motorcycle, throwing him down, as a result of which he was seriously injured. When thrown down he immediately jumped up to see the automobile, and saw it pass over Burlington avenue. He did not lose consciousness and had full possession of his faculties from the time of the collision until removed in the ambulance; he saw the automobile the instant before it struck him and turned the handle-bars of his motorcycle to the right, thus changing his course, in an effort to avoid the collision; after being struck he got up, but fell down again; he watched the speeding automobile until it reached Burlington avenue, the street next west of the alley; he had attended automobile school, qualified as a driver and knew and had estimated their speed within one-half mile per hour. A city ordinance was introduced which limited the speed of and made it unlawful for any one to operate an automobile at the point where the collision occurred at a speed in excess of twenty miles per hour. [1] Thereupon he was asked the question: "Can you estimate the speed at which that automobile was traveling at the time that it struck you?" to which an objection, upon the ground that it was incompetent and immaterial and no foundation laid as to the estimate, was by the court sustained on the

ground, as stated, "that from the testimony of the witness already given it is impossible for him to make the estimate". He was further asked: "Now, Shimoda, what was the speed of the automobile at the time that you first saw it?" to which the court sustained an objection. He was again asked: "What speed was the automobile going in miles per hour at the time it struck you?" to which defendants' objection, upon the ground that it was incompetent, irrelevant and immaterial and no proper foundation laid, was sustained. Thereafter plaintiff offered to prove by the witness that, from seeing the .automobile at the time it struck him and immediately prior thereto and thereafter, and as he saw it afterwards while being run to Burlington avenue, he could and did form an estimate of the speed in miles per hour at which it was running, and that at the time it collided with his motorcycle it was running at a speed of from thirty to forty miles per hour. The court refused to permit him to so testify. This ruling of the court is assigned as error. Counsel for respondents attempt to justify the same upon the well-recognized rule that whether or not one be qualified to testify as an expert is a question of fact to be determined by the trial court, whose decision will not be disturbed unless error clearly appears; in reply to which it may be said that the witness was not called as an expert. [2] No question other than the speed of a moving object was involved, as to which any intelligent person accustomed to observing moving objects would be able to express an opinion of some value. The rule, as to which there is little conflict and applicable alike not only to automobiles, but to all moving objects, is that a person of ordinary intelligence having opportunity for observation is competent to testify as to the speed at which an automobile is being operated at a given time. (Wolfe v. Ives, 83 Conn. 174; Matla v. Rapid Motor Vehicle Co., 160 Mich. 639; State v. Watson, 216 Mo. 420; Detroit & M. R. R. Co. v. Van Steinburg, 17 Mich. 104; Johnson v. Oakland etc. Ry. Co., 127 Cal. 608.) The ruling, however, appears not to have been based upon the grounds stated in the objection to the question, but by reason of the fact that in the opinion of the learned trial judge plaintiff did not have sufficient opportunity to form an opinion upon the question as to the rate of speed at which the automobile was running. This by reason of the fact that, as shown by his testimony, plaintiff was knocked down immediately after emerging to a point from which he could see the automobile. This conclusion finds some support in Wright v. Crane, 142 Mich, 508, where it appeared that the witness, who testified that an automobile when he first discovered it was but twenty feet from his horse's head, based his opinion upon the ground that, while he did not see it, an automobile running at a high rate of speed makes little noise and makes much more noise when running at a low rate of speed. It appears here that not only did plaintiff see the automobile before it struck him and had time to turn the handle-bars so as to change his course, but saw and estimated its speed while running a distance of half a block to Burlington avenue. In the case of Himmelwright v. Baker, 109 Pac. Rep. 178,