Chorn

The defendant has appealed from an order granting a new trial, after a jury had rendered a verdict in its favor. By the sudden change of traffic signals at the intersection of streets, a pedestrian, who was a ten year old schoolboy, while crossing one of the streets, was caught in a three-foot space between two street-cars which were passing in opposite directions. Both cars stopped, blocking his way. At the command of the motorman to get out of there, the boy ran around the car which stood in front of him and was run down and injured by a passing automobile.

The appellant contends the record shows its freedom from negligence as a matter of law, and that the court therefore abused its discretion in granting the new trial. The respondent asserts the motorman was negligent in failing to observe the boy and stop his ear in time to permit him to safely cross the street, and in ordering the boy from a place of comparative safety without warning him of the danger of an approaching automobile.

The defendant operates an electric street-ear system in the city of Sacramento. This system includes a single track extending out Twenty-first Street, which runs- in a northerly and southerly…