Walker

Action to recover damages caused by the alleged negligent operation of defendant’s railway train, which collided with plaintiff’s automobile at the crossing of a public highway, known as Mission Road, in the city of Los Angeles.

Judgment went for plaintiff, from which and an order denying its motion for a new trial defendant has appealed.

That defendant, at the time of the accident, was guilty of negligence in operating its train not only at an excessive rate of speed, but contrary to the provisions of a city ordinance, and without warning by the use of either whistle or bell, admits of no controversy.

As a defense to the cause of action, however, defendant pleaded contributory negligence on the part of plaintiff and, claiming that as a matter of law such contributory negligence was shown, it, at the close of plaintiff’s 'evidence and based thereon, moved for a nonsuit, which motion was by the court denied. This ruling, claimed to be erroneous, constitutes the chief ground upon which defendant bases its claim for a reversal.

It is settled law that in reviewing the ruling of a court in passing upon a motion for nonsuit, every inference which can be reasonably deduced from the…