Wiley

This is an action for damages, the gist of which is shown by the following allegation of the complaint: ‘ That on the 10th day of July, 1904, defendant was the owner of a certain truck and team of horses; that on said day, while passing through a gateway, on Bryant street, near Tenth, San Francisco, defendant managed said truck and team negligently and with want of ordinary care and skill, so that, by reason of its negligence and want of ordinary care and skill, defendant knocked the gate and adjoining fence down upon plaintiff.” Plaintiff was quite severely injured, "but the jury found a verdict in his favor for only $250.

The only question seriously discussed by appellant involves the contention that plaintiff was guilty of contributory negligence. We think it is fairly debatable whether the conduct of said plaintiff under the circumstances was that of a reasonably prudent and cautious person, and therefore its determination was properly submitted to the jury, whose conclusion is binding here.

It cannot be said as a matter of law that the position behind the gate assumed by respondent was one of danger. As declared in his brief: “He had worked seven days con tinuously as…