P and D were stockholders and employees of the Sunset Scavenger Company. For several years, they had worked together on the same garbage truck collecting garbage from customers. On the day of the fight, P had the job of remaining in the box of the truck and of spreading the garbage and separating and stowing away in barrels or blankets the bottles and waste paper, and other salvageable material which he might find in the garbage. D, along with 3 other men, Renati, Scocca, and Campi, were gathering the garbage and depositing it in the truck. Renati was the so-called 'boss of the truck'. D was second in command. Scocca was a regular member of the crew and usually drove the truck, besides gathering garbage. Campi was an extra man employed, not by the company, but by the other four to lighten their labors around Christmas time when their work was particularly heavy. D returned to the truck bearing his blanket of garbage and deposited his load in the box. D spoke to P. P testified that D said: 'Are you still on the truck?' D testified he said: 'Do I have to come in and help you?' Further words passed as to which the parties likewise differ. P grabbed a heavy, short-handled pitchfork. P claims D reached for the fork before he, P, got it. D testified he did not reach for the fork and could not have reached it if he had tried. D testified that P cried out that he would kill D and made a jump and grabbed hold of the fork; that, having the fork, P came after him to strike him, that he drew out of the way and P sought to stick him in the stomach, whereupon he jumped down to the sidewalk. P testified that, taking the fork, he advanced toward D and ordered him to get down from the truck, and that he had to tell him the second time to get down; that then D got down. P testified that D then looked in the toolbox. P took the pitchfork in his hand and went down. P testified he took the pitchfork with him for the purpose of protecting himself. D stated that after he landed on the sidewalk he started to go to gather garbage; that he heard the noise of P's landing on the sidewalk, and turned and saw P coming right after him with the pitchfork raised; that he faced P who was but a few feet away and that P struck at him with the pitchfork and the blow fell heavily upon D's left shoulder. D grasped the handle of the pitchfork and, with his right fist, struck P two or three blows in the face between the nose and the left ear, and P fell to the pavement. D did not strike or kick P after he fell to the ground; he did not jab or poke him in the eye; and Renati and he together took the fork away from P. P testified after he stepped onto the pavement D raised his hands and came toward him and he raised the pitchfork and told him to stand back; that he started to 'retreat' and he tripped on the curb of the sidewalk; that as he was falling the pitchfork fell on D's shoulder; that only his right hand touched the sidewalk. D then dragged him from the sidewalk to the place in front of the truck where he lay when Renati came. Before Renati arrived, D kicked him and struck him with his fist, and with his fingers extended, poked or jabbed him in the eye; that he felt the pain at once; and that his eyes up to that time had been all right. P got the verdict, and D appealed. D contends that some of the instructions given to the jury were prejudicial error.

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