upon assumption of risk cited by counsel for the reason that they are practically in accord with those to which we have herein before referred.

[7] Objection is also made to instruction No. 9, given by the trial court to the jury. That instruction reads as follows: "The plaintiff is required to use ordinary care for his own safety, but this does not include inspection of the cars and appliances for defects; that duty being upon the defendant, and the law permitting the plaintiff to rely upon the defendant for the performance of that duty for his safety. The plaintiff is only required, in the exercise of ordinary care, to take notice of such defects and dangers as are patent to ordinary observation without the inspection which the law requires at the hands of the defendant." This instruction is identical with the one given in St. Louis etc. Ry. Co. v. Webster, supra, and is, although worded differently, practically the same as the rule of law set forth in the case of McAfee v. Ogden Union Ry. & Depot Co., supra, quoting from decisions of the United States supreme court. The objection to the instruction concerning the age of the widow appears to have been made through a misapprehension of counsel, in that the record shows that the age of the widow was stipulated. While the question of the amount of damages is alleged to have been excessive in defendant's motion for a new trial, no argument is made thereon, and, as that point is not presented for our consideration in appellant's briefs, we think it unnecessary to consider the same.

The judgment of the trial court is affirmed.

Hart, J., and Finch, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on December 31, 1924, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 29, 1925.

All the Justices present concurred.

[Crim. No. 1198. First Appellate District, Division Two.--December 3,

1924.]

THE PEOPLE, Respondent, v. JAMES E. RAMEY, Appellant.

[1] CRIMINAL LAW-INCEST-CONDUCT OF DEFENDANT ARGUMENTATIVE QUESTION.-In a prosecution for the crime of incest, committed upon the daughter of defendant, it is not error to refuse to permit defendant to ask the prosecutrix on her cross-examination a question which is purely argumentative, calling for her conclusion as to why defendant had acted in a certain manner. [2] ID.

SOBRIETY OF DEFENDANT-EVIDENCE-ABSENCE OF PREJUDICE. In such prosecution the defendant is not prejudiced by the action of the trial court in permitting the people, over the objection of defendant, to ask the prosecutrix a question as to defendant's sobriety at the time of the alleged offense or by her answer to the effect that he appeared to be sober.

[3] ID.

EXAMINATION OF WITNESS-REPETITION-DISCRETION OF TRIAL COURT-APPEAL.—The objection that a question has already been asked and answered is a matter addressed to the discretion of the trial court, and its ruling is not a ground for reversal on appeal. [4] ID. MISCONDUCT OF DISTRICT ATTORNEY-INSTRUCTIONS.-In this prosecution for the crime of incest, the misconduct of the district attorney did not constitute reversible error where, in each case where the conduct of the district attorney was objectionable, the jury was instructed to disregard it.

[5] ID.-FAILURE TO MAKE OUTCRY-INSTRUCTIONS.-In a prosecution for the crime of incest, it is not error to refuse an instruction that the failure of the prosecutrix to make an outcry might be considered in determining her credibility as a witness, and also in determining whether or not the crime had been committed.

[6] ID. RIGHT TO HAVE LAWS EXECUTED - DUTY OF JURORS - INSTRUCTIONS.-In such a prosecution it is not error to instruct the members of the jury that their duties require them to consider the right of the people of the state to have the laws properly executed, and that "unless you do your duty, laws may as well be stricken from the statute books."

(1) 40 Cyc., p. 2517, n. 78. (2) 17 C. J., p. 308, n. 59, p. 317, n. 10. (3) 16 C. J., p. 859, n. 98 New; 17 C. J., p. 244, n. 68. (4) 17 C. J., p. 299, n. 31. (5) 31 C. J., p. 389, n. 72. (6) 16 C. J., 960, n. 58.

APPEAL from a judgment of the Superior Court of Alameda County and from an order denying a new trial. Lincoln S. Church, Judge. Affirmed.

The facts are stated in the opinion of the court.

Daniel Rygel for Appellant.

U. S. Webb, Attorney-General, and Wm. F. Cleary, Deputy Attorney-General, for Respondent.

NOURSE, J.-The defendant was convicted of the crime of incest, committed upon his daughter, a girl of sixteen years of age. He appeals from the judgment following the verdict and from the order denying a motion for new trial. On this appeal he suggests that the evidence is insufficient to support the verdict. We have examined the record with care and find that the testimony of the prosecutrix is clear, convincing, and without substantial conflict. In addition to this it is corroborated by the testimony of her sister, a girl of fourteen years of age.

Objections are made to the ruling of the trial court in the admission of testimony during the course of the trial. [1] One question which the appellant was not permitted to ask the prosecutrix on her cross-examination was purely argumentative, calling for her conclusion as to why the appellant had acted in a certain manner. [2] Another question which the people were permitted to ask over the objection of appellant related to the question of the appellant's sobriety at the time of the alleged offense. The answer was that he appeared to be sober. Neither the question nor the answer could have prejudiced appellant's defense. [3] The objection to the other question is that it had already been asked and answered, but this, of course, is a matter that is within the discretion of the trial court and is not a ground for reversal on appeal.

[4] A number of specifications of error are made by the appellant under the head of the misconduct of the district attorney, but we find that in each case where the conduct of the district attorney was objectionable the jury was properly instructed to disregard it.

[5] Error is assigned in the refusal of the trial court to instruct the jury on the request of the appellant that the failure of the prosecutrix to make an outery might be considered in determining her credibility as a witness, and also in determining whether or not the crime had been committed.

An identical instruction was requested and refused in People v. Reynolds, 48 Cal. App. 688, 690 [192 Pac. 343], and the refusal was there held to be proper. To the same effect is People v. Lee, 119 Cal. 84, 86 [51 Pac. 22]. See, also, People v. Howard, 143 Cal. 316, 324 [76 Pac. 1116], concurring opinion of Chief Justice Beatty. [6] The appellant assigns as error the instruction of the court advising members of the jury that their duties require them to consider the right of the people of the state to have the laws properly executed, and that "unless you do your duty, laws may as well be stricken from the statute books." The identical instruction was approved by the supreme court in People v. Wolff, 182 Cal. 728, 739 [190 Pac. 22].

Judgment and order affirmed.

Langdon, P. J., and Sturtevant, J., concurred.

[Civ. No. 4960. First Appellate District, Division Two.-December 4, 1924.]

LUNING MINERAL PRODUCTS COMPANY (a Corporation), et al., Plaintiffs; LONDON ASSURANCE CORPORATION (a Corporation), Appellant, v. EAST BAY WATER WATER COMPANY COMPANY (a Corporation), Respondent.

[1] WATER COMPANIES

- FAILURE TO FURNISH WATER-DESTRUCTION OF PROPERTY BY FIRE-LIABILITY FOR DAMAGES.-The facts that a fire hydrant is installed adjacent to a certain manufacturing plant, that the water company collects a water rental in the form of a "stand-by service" charge under municipal ordinances and the decisions of the state Railroad Commission, and that the owner of said manufacturing plant pays a proportionate share of said rental as a taxpayer of the municipality, do not give the owner of said manufacturing plant a cause of action against the water company for damages for loss of such plant by fire

1. Liability of water company to private consumer for loss of property by fire due to inadequacy of water supply, notes, 2 Ann. Cas. 479; 5 Ann. Cas. 508; 9 Ann. Cas. 1076; 20 Ann. Cas. 1294; Ann. Cas. 1913D, 461.

occasioned by the negligent failure of the water company to furnish water to enable the fire department to put out the fire. [2] ID. CHANGE IN LAW-PROVINCE OF LEGISLATURE.-A change in the substantive law to give the householder a right of action against public utilities furnishing water in case of the destruction of the householder's property by fire which the supply of water has been inadequate to prevent must be made by the legisla tive bodies rather than by the courts.

(1) 40 Cyc., p. 809, n. 32. (2) 12 C. J., p. 883, n. 98.

APPEAL from a judgment of the Superior Court of Alameda County. James G. Quinn, Judge. Affirmed

The facts are stated in the opinion of the court.

W. G. Deal for Appellant.

McKee, Tasheira & Wahrhaftig for Respondent.

NOURSE, J.-The plaintiff Luning Mineral Products Company joined with the London Assurance Corporation in an action against the East Bay Water Company to recover damages for the loss of the plant of the first-named plaintiff, which was destroyed by fire. A demurrer to the complaint was sustained; the plaintiff Luning Mineral Products Company filed an amended complaint and as to that plaintiff the action is still pending in the trial court. The plaintiff London Assurance Corporation declined to amend and has appealed from the judgment which followed its default.

[1] The pertinent allegations of the complaint are that when the plant of plaintiff Luning Mineral Products Company was erected in the city of Richmond, California, a fire hydrant was installed adjacent thereto upon which the Water Company collected a water rental, or a rate for "stand-by service," under the ordinances of the city of Richmond and the decisions of the state Railroad Commission, and that said plaintiff paid a proportionate share of said rental as a taxpayer of said city of Richmond; that on August 15, 1922, the entire plant of said plaintiff was destroyed by fire, owing to the lack of water in the mains of said defendant and the failure of said defendant to furnish water at said fire hydrant. It was also alleged that such failure was due to the fact that the Water Company had negligently connected said hydrant to its reservoir with pipes too small to supply