Furtado

Action for personal injury. It is alleged in plaintiff’s complaint:

The cause was tried by a jury and plaintiff had a verdict for one thousand dollars. Defendant appeals from the judg ment and from the order denying his motion for a new trial.

Appellant attacks the implied findings of the jury on the ground that the evidence is insufficient to establish any negligence of defendant either as the proximate cause of the injury or as contributory thereto, and that the evidence is insufficient “to justify the jury in finding that the plaintiff was not guilty of negligence, which was the proximate cause of his injury,” or, in other words, the evidence was sufficient to establish plaintiff’s contributory negligence.

It appeared that the highway on which the accident occured is fifty feet wide and runs south from the city of Merced; it is graded and used in the center and a roadway is also used on each side of the center grade and the road is fenced on both sides; a berm or bench of earth, about three feet wide, extends from the fence on each side to the sides of the roads; at the time of the accident plaintiff was riding a horse in- a northerly direction along the west side of the…