Allwein

These two cases were tried together, as they involve exactly the same questions, both of fact and law. The actions were for damages and arose because of the running down of two children by a motor-truck. Judgment went for defendants, but the trial judge made an order granting a new trial. The defendants have appealed from this order.

The new trial was granted by the trial judge upon the ground that two instructions he had given to the jury were erroneous. A brief statement of facts must precede a discussion of the questions of law presented by the appeal. Respondent Pauline Allwein aged twelve years, and Raymond Allwein, aged six, were the children of respondent R. M. Allwein. The two were walking westward along the north side of a paved highway. The motor-truck came up behind them and as it approached it was also proceeding, up to some distance from them, along the right side of the road. Along and near this north, or right, side of the highway a ditch had been dug and the spoil from it had been piled beside the paved highway and up to its edge. Pauline testified that she saw the approaching truck a considerable distance behind her and her brother whom she led by the hand and…