Wagner

This is an appeal by defendant from a judgment and from an order denying its motion for a new trial. The action was brought to recover damages for personal injuries sustained by the plaintiff as the result of a collision between one of defendant’s cars and a sand-wagon driven by plaintiff.

The defendant operates a street railway on Ellis street, in San Francisco; and on the twenty-sixth day of January, 1907, at about 3 o’clock in the morning, as the plaintiff was driving a loaded sand-wagon along Mason street in a southerly direction across Ellis street, the wagon was struck just back of the front wheels by a car operated by an employee of the defendant, which ear was on the southerly track and proceeding in an easterly direction.

The theory of plaintiff’s case was that the defendant ran its car at an excessive rate of speed, to wit, at the rate of twenty- five miles an hour, and in so careless and negligent a manner as to strike with great violence the wagon driven by plaintiff, thereby throwing him from the seat of the wagon and injur-' ing him in the manner described in the complaint.

Defendant claims that the judgment and order should be reversed on three grounds.

1.…