I concur in the judgment. Paragraph VIII of the amended complaint alleged the negligence of the defendant which was the proximate cause of the injury, namely, that the defendant negligently permitted the electric power wire "to remain" upon the ground. The concluding phrase of the allegation, to wit, "at the time and in the manner aforesaid," should be held to refer only to such portions of the allegations of paragraph V as related to the negligence of the defendant in permitting the wire "to remain" on the ground. The admission of the defendant at the commencement of the trial constituted an admission of the negligence alleged in paragraph VIII as so construed and as such was an admission of the negligence that proximately caused the injury. Assuming that this belated admission should not have operated to prevent the plaintiff from proving his allegations of negligence under this material issue, if the court should so permit, it is clear to me that proof of the other allegation of negligence should not have been allowed if the same tendered an immaterial issue. Whether the defendant was negligent in the maintenance of the unbroken wire at or near the scene of the accident, as alleged in paragraph V, was, in my opinion, immaterial. I am not satisfied, however, that the error of the court in permitting proof on the immaterial issue resulted in a miscarriage of justice, as it cannot be said, in view of the seriousness of the injuries inflicted on the minor, that the verdict was excessive. In order so to declare it must appear to this court that the judgment is "so plainly and outrageously excessive as to suggest, at the first blush, passion or prejudice or corruption on the part of the jury." (Hale v. San *Page 305 Bernardino etc. Co., 156 Cal. 713 [106 P. 83]; Mohn v.Tingley, 191 Cal. 470, 492 [217 P. 733].) I am not prepared so to declare.
Waste, C.J., concurred.