the sale. The sheriff's deed does not, however, transfer any after-acquired interest in the land, and the judgment debtor is not estopped from showing in an ejectment suit against him that, subsequent to the execution of the sale, he has acquired a different title from that which was sold under the judgment, (Emerson v. Sansome, 41 Cal. 552;) and in an ejectment suit against the vendee of the judgment deptor he may also show, not only that he has acquired a different interest or right of possession, but also that the judgment debtor himself had no interest in the lands at the time of the sale. In one sense the grantee of land may be said to come into possession under his grantor, but his entry under his grantor is not in subordination to the title which he receives from him, or of that character which estops him from disputing the validity of the title under which he entered, as a tenant is estopped from disputing his landlord's title, or the vendee in possession under a contract of sale the title of his vendor. Even a tenant is not estopped from showing that his landlord's title under which he entered has terminated. Tayl. Landl. & Ten. § 629. The grantee does not by his entry assume any obligation towards his grantor, nor is there any relation of trust or confidence between them which is forfeited by his repudiation of the title under which he entered, or by his acquisition of another outstanding title. By entering under the title he assumes it to be prima facie good, but he is not estopped thereby from showing otherwise, or from showing in any controversy another and independent title in himself. Hill v. Robertson, 1 Strob. 1. "The vendee claims the property for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become by the sale the property of the vendee, he has the right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this, nor is the letter or spirit of the contract violated by it." Blight's Lessee v. Rochester, 7 Wheat. 548. Delivering of possession under a deed of the fee does not, in the absence of any other recitals, raise an estoppel, since the possession then becomes wholly the possession of the grantee, and there is no obligation on his part to return it to the grantor. He may therefore dispute his title. 3 Washb. Real Prop. (5th Ed.) 99; Gardner v. Greene, 5 R. I. 110; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. Rep. 407; Sparrow v. Kingman, 1 N. Y. 242; Osterhout v. Shoemaker, 3 Hill, 513. In the case last cited, Bronson, J., giving the opinion of the court,

said: "Although a tenant cannot question the right of his landlord, a grantee in fee may hold adversely to the grantor, and there can be no good reason why he should not be at liberty to deny that the grantor had any title. There is no estoppel when the occupant is under no obligation, express or implied, that he will at some time, or in some event, surrender the possession. The grantee in fee is under no such obligation. He does not receive the possession under any contract, express or implied, that he will ever give it up. He takes the land to hold for himself, and to dispose of it at pleasure. He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title." The rights of the grantor are extinguished by the sale, and, as the property has thereby become the property of the grantee, he holds it with all the attributes of ownership, and is under no more accountability to his grantor for his estimate of the title taken from him than he is for the use to which he shall apply the land; and he may fortify his possession by the acquisition of any other title which may protect him in its enjoyment. "He holds adversely to all the world, and has the same right to deny the title of his vendor as the title of any other party." Merryman v. Bourne, 9 Wall. 600; Winlock V. Hardy, 4 Litt. 272; Voorhies v. White, 2 A. K. Marsh, 26. His possession becomes adverse to his grantor immediately upon his entry under the grant, and by this adverse possession he may acquire a title by prescription which will be as available for the protection of his possession as one acquired by grant. Croxall v. Shererd, 5 Wall. 268. Whether the possession which Thornton took of the land in August, 1872, is to be. regarded as having been taken by virtue of the grant from Green, or without any color of title, it immediately became adverse to the whole world. Green himself would be estopped by his deed from claiming any title in the land, and as whatever title Green had at the date of the attachment had been extinguished prior to the time when Thornton took possession of the land, the lien of the attachment against his interest was terminated, and could no longer form a basis for the support of any sale that might be made under the judgment afterwards obtained in the action. At the date of the sale in 1881, Thornton had acquired a title by prescription which gave him the right to the possession of the land (Civil Code, § 1007) superior to any claim of the plaintiff resting upon the prior possession of the Greens.

The rule that the statute of limitations does not begin to run against the judgment debtor, or one claiming under him, until the execution of the sheriff's deed, has no application to the present case. That rule rests upon the proposition that the sher

or until the lien is converted into a title conferring the right of possession. The defendant's possession after this is adverse to the title of plaintiff; and then, with the right of entry in plaintiff, the bar of the statute begins to run."

Let us assume that plaintiff, Robinson, se cured his sheriff's deed within five years from the date of Thornton's entry under his deed from Green, and that he then brought his action. I know of no way that Thornton could have defeated plaintiff's claim. The statute of limitations could not have availed him, as his posession had not extended for sufficient length of time, and, as we have seen, this is his only defense. Now, it seems strange that plaintiff should be defeated because, without fault of his, he was unable to secure his deed within five years from Thornton's entry. If he had secured his deed at the end of four years from the entry of Thornton, his cause of action would then bave accrued, and, as we have seen, he could have recovered possession of the land. If he had a cause of action at that time, and not till that time, the statute did not begin to run against him until then, and he could not have lost his right to bring suit until five years thereafter. If such were not the fact, plaintiff had a cause of action for the recovery of real estate which became barred within one year after it accrued. That result would be novel in the extreme.

Again, instead of foreclosure proceedings against Green, let us assume that he deeded outright to a stranger, then deeded to plaintiff, and then, while in possession, deeded to defendant, who took possession under the deed. If plaintiff had brought this action under these circumstances within five years from the date of his deed, there would have been no defense to the action on the part of this defendant. Let us assume the deed to a stranger in lieu of the foreclosure proceedings, and then the levy of the attachment, followed by the deed to the defendant and the sheriff's deed to plaintiff. Plaintiff's sheriff's deed related to the date of the levy, and when he received it he occupied the same position as if it had been a deed from Green of the date of the levy; and we have seen that if it had been Green's deed of that date plaintiff could recover. As already suggested, defendant's plea of the statute of limitations in this case is almost a misnomer, as it is practically a plea of no title in plaintiff. Let us see if such is not the fact. We will assume that the foreclosure proceedings were fatally defective, and the deed thereunder void, what is plaintiff's status in the case then? Why, the title was in Green at the date of the levy, and the sheriff's deed vested it in plaintiff, Robinson, under which he would have a cause of action that defendant could not contest for a moment. It follows that, if the foreclosure proceedings are void, then plaintiff's cause of action accrued when he received his deed

from the sheriff, and defendant's plea of the statute would be in vain. Upon the contrary, if those proceedings are valid, plaintiff has no cause of action, and the plea of the statute can be successfully invoked. In other words, if the legal title is in the plaintiff, the statute cannot be pleaded; but if the legal title is in a stranger, it can be pleaded. I fail to see the distinction, and do not think the successful plea of the statute is dependent upon any such test.

For the foregoing reasons it is apparent to me that the so-called "plea of the statute of limitations," as far as practical results are concerned, is nothing more than a plea of cutstanding title in a stranger under the deed in foreclosure, and it must be conceded, if such be the fact, the plaintiff is entitled to recover. Defendant offered the foreclosure proceedings in evidence. The prevailing opinion says for the purpose of showing that at the date of the levy of the attachment Green had no interest in the land, and that consequently plaintiff got nothing by his deed. I would suggest those proceedings fail to show it, for Green had the lawful "possession" at the date of the levy, and if he had still been in possession when plaintiff received his deed there could be no question as to plaintiff's right of recovery. But, aside from that, these proceedings simply show an equitable title in a stranger at the date of the levy, and the result was simply an outstanding title when this litigation began. It cannot be possible that plaintiff's cause of action would be stronger if the sheriff's deed under foreclosure had issued prior to the levy of the attachment; yet such would seem to follow from the reasoning of the prevailing opinion. The foreclosure proceeding, as an element in this case, in no way aids the defendant as to his plea of the statute of limitations; and, omitting that element of the case, we then have an exact photograph of Pratt v. Pratt, and the reasoning there found leaves the defendant with no prop to support him. The title under the foreclosure being an outstanding title, it availed defendant nothing. Perhaps he was estopped from setting it up, having entered under a deed fom a common grantor with the plaintiff. But, aside from that, at the trial plaintiff showed that such title was then vested in him, and for that reason its efficacy as a defense was entirely gone. See Sedg. & W. Tr. Title Land, § 831; Sharp v. Johnson, 22 Ark. 79; Perryman's Lessee v. Callison, 1 Overt. 516.

car alleged to have been prematurely started, after instructing the jury that common carriers of passengers must use such vigilance and foresight as they can, under the circumstances, in view of the character and mode of conveyance adopted, to prevent accidents, it was not improper to instruct that "it was the defendant's business to know, before starting up the car, whether passengers getting off or on the car were in a position to be injured, and it would be negligence to start the car suddenly, under such circumstances, without exercising every precaution for the safety of those who might be getting off or on."

2. One is guilty of contributory negligence if he is guilty of want of ordinary care, and the want of extraordinary care, merely, is no defense.

3. Negligence on plaintiff's part, amounting to absence of ordinary care, which, concurrently with the negligence of defendant, proximately contributes to the injury, is a good defense, whether or not defendant, with ordinary or extraordinary care, could have guarded against it.

4. In an action against a street-car company for personal injuries, plaintiff claimed, and the evidence tended to prove, that a car was started while she was alighting therefrom, while defendant claimed, and gave evidence to show, that the car was started before plaintiff left her seat, and that she tried to get off while the car was in motion. Held, that an instruction making the defense of contributory negligence dependent on whether defendant could have guarded against such negligence was rendered harmless by subsequent instructions that the verdict must be for the defendant if the injuries were caused either solely by plaintiff's negligence, or, jointly and concurrently, by the negligence of plaintiff and defendant or its servants, and that if plaintiff, knowing the car was in motion, chose to run her chances, and get off by stepping directly out from the car, she must abide the risks she took.

Commissioners' decision. Department 2. Appeal from superior court, city and county of San Francisco; A. A. Sanderson, Judge.

Action by Mary Tobin against the Omnibus Cable Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

C. H. Wilson, for appellant. Henley & Swift, for respondent.

VANCLIEF, C. The defendant is an incorporated cable railway company, operating on Post street and certain other streets in the city of San Francisco. The plaintiff was a passenger on one of defendant's cars, and, while attempting to alight from the car at the junction of Post and Kearny streets, was thrown upon the pavement by the movement of the car, and personally injured. This action was brought to recover $30,000 damages for the injury, which, it is alleged, resulted solely from the negligence of the defendant. A trial by jury resulted in a verdict for plaintiff, assessing the damages at $10,000. On defendant's motion for a new trial the court ordered that if, within 10 days, the plaintiff remit $3,000 from the damages assessed by the jury, the motion for new trial "will be denied, otherwise it will be granted." The plaintiff accordingly remitted $3,000, and a new trial was denied, and judgment entered for $7,000.

The defendant appeals from the judgment, and from the order denying a new trial.

1. Counsel for appellant contends that the evidence is insufficient to justify a verdict of negligence on the part of the defendant, and, if it is, that it shows contributory negligence of the plaintiff. As to each of these issues, there is a substantial conflict of evidence, and therefore the verdict should not be disturbed on either of these grounds. Whether there was negligence of defendant, or contributory negligence of the plaintiff, ultimately depends upon whether the car was started while plaintiff was in the act of getting off, under such circumstances that, with due care for her safety, the gripman could and would have discovered that she was in the act of alighting before he started the car, by the movement of which, it is admitted, she was thrown down and injured. The plaintiff was seated on the left-hand side of the open section of the car, (the dummy,) in the middle compartment of that seat; there being three compartments, each sufficient to seat two passengers. She occupied the rear of the apartment, so that her right side adjoined the middle of the seat. The gripman stood at or near the center of the dummy while gripping the cable, and as nearly to the plaintiff's seat as to any other seat on the dummy. The plaintiff testified: "I was alongside of the gripman. My right shoulder was right together with his arm,”— and this was not disputed. The gripman, Mr. Huntly, testified: "I do not pay any attention to the passengers upon the inside of the car. The conductor looks after them. It is my duty to look after the passengers that are on the open section, with reference to their getting on or off." There are two steps below the seat, and plaintiff's feet, while sitting, rested on the upper step, so that in getting off she must have descended two steps. The evidence on the part of plaintiff tends to prove that she was making the second step, having one foot on or near the ground, the other upon the lower step, and holding to the stanchion with her left hand, when the gripman suddenly started the car, and also tends to prove that with ordinary care the gripman would have seen that plaintiff had risen from her seat, and was stepping down, before he gripped the cable. To these points the testimony of the plaintiff and Mrs. Meyers is quite positive, and to some extent is corroborated by Morris Sperling, a witness on the part of defendant. It appears that the plaintiff was 64 years of age, and that by the fall she was permanently injured, by a fracture of the neck of the femur.

2. It is claimed that the court erred in instructing the jury that "it was the defendant's business to know, before starting up the car, whether passengers getting off or on the car were in a position to be injured; and it would be negligence to start the car suddenly, under such circumstances,

without exercising every precaution for the safety of those who might be getting off or on." As applied to the cable street cars of the defendant, and to the facts of this case, in connection with other instructions given, the instruction seems to be correct. It does not, as contended by counsel, instruct that it would be negligence on the part of the defendant not to know absolutely, under all circumstances, that passengers getting off or on are not in a condition to be injured, but that "it would be negligence to start the car suddenly, under such circumstances, (the circumstances of this case,) without exercising every precaution for the safety of those who might be getting off or on," and that it was defendant's "business" to know (not that it must absolutely know under all circumstances) that passengers were not in a condition to be injured by starting the The court had before defined the degree of care required of common carriers of passengers as follows: "Common carriers of passengers are required to do all that human care, vigilance, and foresight reasonably can, under the circumstances, in view of the character and mode of conveyance adopted, to prevent accidents to passengers." Read in connection with this, the instruction in question could not have been understood to mean that the failure of the defendant to know, under all circumstances, whether passengers are in condition to be injured by starting the car, is negligence.

car.

3. The court, of its own motion, gave the following instruction as to the law of contrib utory negligence, in addition to instructions upon the same subject before given at the request of counsel for defendant: "Now, here is an instruction-a definition of this matter of contributory negligence-which is sometimes confusing to a jury, and which I will give you as follows: 'Contributory negligence' is defined to be, not any degree of negligence, however slight, which concurs in producing an injury, but it must be negligence amounting to the absence of ordinary care, and which contributes proximately or directly to the injury complained of, and against which negligence the defendant, being aware of it, could not have guarded." Immediately after this instruction was given, counsel for defendant asked if it was given by the court of its own motion, saying, if it was, he would like to except to it. Upon being informed by the court that it was given by the court, counsel said: "Then I desire to take an exception as to that. I understand I have to do that now,"-but stated no ground of objection to the instruction, though he seems to have understood that it was oral. In his brief here, for the first time, counsel states two grounds of objection to this instruction: First, that it defines the degree of contributory negligence necessary to constitute a defense to be a want of only ordinary care on the part of the passenger, whereas it is claimed that a want of extraor

dinary care, contributory to the injury in the slightest degree, is sufficient to constitute a defense. I think this objection is answered in the opinion of this court, by Mr. Justice McKinstry, in the case of Robinson v. Railroad Co., 48 Cal. 422, 423, where it was said: "The law regards the plaintiff as innocent * * * unless the evidence shows a want of ordinary care and prudence on his part. His failure to take great care is no defense. Shear. & R. Neg. § 29. The formula is, not that any degree of negligence on the part of the plaintiff, which directly concurs in producing the injury, (however slight,) will constitute a defense; but if the negligence of the plaintiff, which amounts to the absence of ordinary care, shall contribute, in any degree, proximately to the injury, the plaintiff shall not recover." This was repeated in the case of Strong v. Railroad Co., 61 Cal. 328, wherein the court, by the same learned justice, said: "I'laintiff had a right to rely upon the performance, by those on the locomotive, of every act imposed by law upon them when approaching a crossing. In a legal sense, he was innocent of negligence unless there was a want of ordinary care and prudence on his part. The rule is not that any degree of negli gerce, however slight, which directly concurs in producing the injury, will prevent a recovery; but if the negligence of the plaintiff, amounting to the absence of ordinary care, shall contribute proximately, in any degree, to the injury, the plaintiff shall not recover." See Beach, Contrib. Neg. § 20.

The second objection to the instruction is that the last clause of the instruction, in these words, "and against which negligence the defendant, being aware of it, could not have guarded," is erroneous, in that it requires of the defendant more than ordinary care to guard against injurious consequences from negligence of the plaintiff of which defendant was aware; it being claimed that this last clause of the instruction should have been qualified by adding thereto the words, "by the exercise of ordinary care,"-that is to say, that the carrier, though notified of such negligence of the passenger as exposes the latter to danger of personal injury, is required to exercise only ordinary care to avoid or avert the impending injurious consequences of such negligence, and not that extraordinary degree of care which would have been required but for the negligence of the passenger. Contributory negligence of the plaintiff, as a defense, in cases of this kind, implies negligence of some degree on the part of the defendant, and is consistent with any degree of mere negligence of the defendant. Therefore, whenever it is found that the negligence of the plaintiff-that is, want of ordinary care on his part-proximately contributed to his injury in any degree, then the degree of care or negligence on the part of the defendant becomes wholly immaterial. Holmes v. Railway Co., 97 Cal. 161, 31 Pac.