Ogden

Plaintiff while crossing Webster1 Street, at its intersection with Grand Avenue, in the city of Oakland, was struck and injured by an automobile, driven by an employee of the defendant.

This action was commenced by plaintiff for damages as a result of those injuries, and upon trial, before the court sitting with a jury, a motion for a nonsuit was granted, and judgment was entered in favor of defendant, for the reason and upon the ground that the evidence given by plaintiff proved that he was guilty of contributory negligence. Plaintiff appeals.

The record discloses that at the time of the accident defendant’s automobile was being driven on the wrong side of the street, and it is upon that ground that plaintiff contends that defendant was1 negligent. It may be conceded that this contention of plaintiff is sound, and yet if, by the uncontradicted testimony of the plaintiff himself, it is shown that he was also negligent and that such negligence contributed proximately to the injuries complained of, the motion for a nonsuit was properly granted.

The accident occurred on the night of December 21, 1920, shortly before the hour of 8 o’clock. It was raining and blowing at the time.…