Cormond

This is an appeal by defendant from an order granting plaintiff’s motion for a new trial in' an action for damages for personal injuries.

On the 10th of December, 1913, at about the hour of 2 o’clock in the afternoon of that day, an east-bound Sutter Street car, operated by the defendant, collided with a wagon then being driven by plaintiff in a southerly direction across the intersection of Sutter and Franklin Streets in the city of San Francisco. As a result of the collision plaintiff was thrown from the wagon and injured. He thereupon instituted this suit for damages, claiming that (1) the car was operated by defendant at a negligently excessive rate of speed, and (2) that defendant failed to avail itself of a last clear chance to avoid the accident. The defendant, by its answer, set up the defenses of contributory negligence and the failure on plaintiff’s own part to avail himself-of a last clear chance.

Upon the issues thus framed the case was' tried before a jury, which on July 3, 1915, returned its verdict in favor of defendant. Judgment being entered upon the verdict, plaintiff moved for and was granted a new trial upon one or other of the grounds set forth in his notice…