HALL, J. —

This is an appeal by defendant from a judgment in favor of plaintiff, and also from the order denying defendant's motion for a new trial.

It first becomes necessary to dispose of some objections raised by respondent to the consideration of the appeal upon its merits. It is first objected that the bill of exceptions cannot be considered because not served in time; and secondly, that though the court, on application of defendant, relieved defendant, under section 473 of the Code of Civil Procedure, of its default in not serving its bill in time, it granted leave to serve a statement on motion for a new trial, and not a bill of exceptions. From the record it appears that the verdict was rendered December 8, 1903, and on the eighteenth day of December, 1903, defendant served and filed its notice of intention to move for a new trial, wherein it stated that said motion would be made on a bill of exceptions thereafter to be settled.

First, as to the point that the bill of exceptions or statement was not served in time, it is allowable for the trial court to relieve a party under section 473 of the Code of Civil Procedure from his default upon sufficient showing of mistake, inadvertence, or excusable neglect. ( Stonesifer v. Kilburn, 94 Cal. 33, [29 P. 332]; Sprigg v. Barber, 118 Cal. 592,

[50 Pac. 682]; Banta v. Silla, 121 Cal. 414, [53 P. 935].) And where such an order has been made by the trial court, all doubts as to the propriety of such order must be resolved in favor of the action of the lower court, and this court will only interfere with such action when it appears that the trial court or judge has been guilty of a gross abuse of discretion. ( Banta v. Silla, supra.) Applying these principles to the case at bar, it is clear that the trial judge was not guilty of an abuse of discretion. The affidavit of appellant's counsel shows that he thought, and had good reason to think, that through his managing clerk he had in due time obtained an order from the court extending his time to serve the bill for thirty days. As soon as he discovered that he had not, he moved, under section 473, to be relieved of his default, and the order of the court gave him only such time as he might have originally obtained — that is to say, the bill was under the order served within the thirty days that the court might have originally granted.

Neither do we think that we should disregard the bill of exceptions or statement (it is headed "Bill of Exceptions" and is described in the certificate allowing the same as the "foregoing statement"), for the reason that the motion made to the court was for leave to serve a statement, although the notice of intention to move for a new trial stated that it would be made on a bill of exceptions. There is no substantial difference between a bill of exceptions and a statement. ( People v. Lee, 14 Cal. 510; People v. Crane, 60 Cal. 279; Witter v. Andrews, 122 Cal. 1, [54 P. 276].) In People v. Crane, supra, the trial judge was compelled by writ of mandate to settle as a bill of exceptions a document that the appellant had entitled a statement of the case. In Witter v. Andrews, supra, the court said: "But he was entitled to a bill of exceptions, and, as there is no substantial difference between a statement and a bill of exceptions, he should not be deprived of the fruits of his appeal because he called the document presented a statement rather than a bill of exceptions." The objection of respondent is not tenable for a further reason, in this, that she does not seem from the record to have resisted the motion for leave to serve a statement on the ground that the notice of intention to move for a new trial stated that it would be made on a bill of exceptions, but she contented herself with presenting such facts as tended to show that there was no mistake, inadvertence, or excusable neglect.

Respondent also makes the point that as no answer was ever filed by defendant to plaintiff's amended complaint the judgment and order appealed from must be affirmed. Upon this point the record shows that plaintiff's original complaint was filed June 20, 1903, and charged, in substance, that a servant of defendant carelessly drove a team of horses and wagon against plaintiff at the crossing of Howard and Twenty-second streets, whereby plaintiff was greatly injured, etc. To this complaint defendant filed an answer, wherein it took issue with the material allegations of the complaint, and also expressly pleaded contributory negligence on the part of plaintiff. Subsequently plaintiff, by leave of court, filed an amended complaint, wherein she charged that the injury and accident occurred at the crossing of Howard and Twenty-third streets, and somewhat more particularly described the manner in which the servant of defendant drove the team. No answer was filed to this amended complaint, nor was a default entered or taken for failure to answer thereto; but when the case came on for trial the cause was tried in all respects, both in the manner of taking the evidence and in charging the jury, as if issues arising out of denials of all the material allegations of the complaint, as well as the issue of contributory negligence, were before the court and jury. Under these circumstances we do not think that respondent can for the first time in this court raise the point that there were no issues to be tried by the jury. In the case of Gale v. Tuolumne Water Co., 14 Cal. 26, no answer was filed to an amended complaint, but the parties went to trial as if on issues joined by the pleadings; and it was held that the objection that there were no issues to be tried could not for the first time be made in the appellate court by the losing party. The only difference between that case and the case at bar is that in that case the losing party in the trial court was the plaintiff, while here it is the defendant. But the principle involved is the same. (See, also, McDougald v. Hulet, 132 Cal. 154, [ 64 P. 278].)

Having disposed of the preliminary objections made by respondent, we now take up a discussion of the points urged by appellant for a reversal. It is contended that the evidence is insufficient to support the verdict, in that there was no evidence of negligence on the part of defendant, and that the evidence shows without conflict that plaintiff was guilty of contributory negligence, and that the verdict is excessive. The action is one for damages claimed to have resulted to plaintiff from injuries received by her while crossing Twenty-third street along the easterly crossing of Howard street, by being struck by the pole of a wagon driven by the servant of defendant. Inasmuch as we think the judgment and order must be reversed for errors of law, we do not think it advisable to pass upon the questions in this paragraph stated.

The defendant asked the court to charge the jury as follows: "In order for the plaintiff to be entitled to recover against the defendant, the plaintiff must show, by preponderance of evidence outside of the mere proof of the fact that a collision occurred, that such collision was due to the negligence of defendant; and, if the plaintiff has failed to show by preponderence of evidence satisfactory to your mind that the accident or collision in which the plaintiff received her injuries was caused by the negligence of the defendant, then the plaintiff is not entitled to recover against the defendant, and your verdict must be in favor of the defendant." The court struck out the words "outside of the mere fact that a collision occurred," and as thus modified gave the instruction. We think the instruction should have been given as asked. There are cases where the mere fact of the accident raises a presumption that defendant was negligent, as in cases of injuries to passengers on vehicles of common carriers, because of the special care that the common carrier owes to its passengers. This rule is not limited to injuries to passengers, but exists wherever the circumstances impose upon one party alone the obligation of special care. (Cooley on Torts, 799.) The application of the rule that proof of the accident alone may raise a presumption of negligence on the part of defendant is quite fully discussed in Judson v. Giant Powder Co., 107 Cal. 549, 48 Am. St. Rep. 146, [40 P. 1020]. The rule has no application, we think, where, as in this case, both the parties were in the exercise of an equal right and each chargeable with the same degree of care. The modification of the instruction, however, was probably not important, for the plaintiff, the driver of the team, and bystanders gave testimony in detail as to the circumstances of the accident; and it is almost inconceivable that the jurors would have drawn any deductions as to the cause of the accident from the mere fact of the accident. The simple omission of the words under discussion from an instruction is quite a different affair from an affirmative instruction that negligence on the part of defendant may be inferred from the mere proof of the accident. We therefore pass without further comment to the discussion of another question of more importance.

After instructing the jury that plaintiff could not recover if she and defendant were both guilty of negligence that proximately contributed to the injury complained of, the court, in an instruction numbered 19 in the record, charged the jury as follows: "But there is a further principle firmly established in this state, that one having an opportunity, by the exercise of proper care, to avoid injuring another, must do so, notwithstanding the latter has placed himself in a position of danger by his own negligence. Another statement of the same rule is as follows: He who last has a clear opportunity of avoiding the accident by the exercise of proper care to avoid injuring another must do so." No fault is found with this instruction by appellant as a generally correct statement of a proposition of law; but appellant does complain of the refusal of the court to give two instructions asked by appellant (Nos. 11 and 13), each of which embodies the proposition that before a defendant can be held liable for failing to use ordinary care to avoid injuring a plaintiff who has, by his own negligence, placed himself in a position of danger, the defendant must have actual knowledge of the dangerous position of the plaintiff. Each of these instructions correctly stated the law, and should have been given, as there was evidence in the case to which such instructions were pertinent. In Herbert v. Southern Pacific Co., 121 Cal. 227, [53 P. 651], the court said: "Doubtless notwithstanding the negligence of a plaintiff has put him in peril, yet if his danger is perceived in time by the defendant so that, by the exercise of ordinary diligence on his part, injury can be avoided, the defendant will be held for the injury. But that is based upon the fact that a defendant did actually know of the danger — not upon the proposition that he would have discovered the peril of the plaintiff but for remissness on his part. Under this rule a defendant is not liable because he ought to have known." To the same effect are Esrey v. Southern Pacific Co., 103 Cal. 541, [37 P. 500], and Wahlgren v. Market St. Ry. Co., 132 Cal. 656, [ 62 P. 308, 64 P. 993].

In his brief, counsel for respondent does not attempt to dispute the soundness of the law of the requested instructions now under discussion, but contents himself with the statement that they were substantially given. He does not, however, call our attention to any instruction that was given that he claims to be in substance the same, and after a careful examination of the record, we have found none.

The order and judgment must be reversed, and it is so ordered.

Harrison, P. J., and Cooper, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 18, 1906.