George

Appeal from an order granting plaintiffs a new trial after verdict and judgment for defendants. Respondent Harris sued to recover for personal injuries alleged to have been negligently inflicted by defendants. Respondent Market Street Railway Company having paid compensation to Harris for his injuries under the Workmen’s Compensation Act brought a separate action under the statutory subrogation. The two actions were consolidated for trial and tried together before the same jury.

The motion for new trial was granted on the ground of insufficiency of the evidence and we cannot reverse the trial court’s order unless we find that there is not sufficient evidence in the record to support a judgment for plaintiffs. We shall therefore confine our statement of the evidence to that which is most favorable to plaintiffs.

Respondent Harris was struck by a truck driven by appellant Vlandis just after alighting from a street-car on Stanyan Street at its intersection with Haight Street in San Francisco. On Stanyan Street at this point and for some distance in either direction there are two parallel street railway tracks. The space between the inner rails of the two tracks is six feet four…