Scott

An action to recover damages for personal injuries alleged to have been caused by the defendant’s negligence. The jury returned a verdict in plaintiff’s favor, but the trial court granted a new trial upon the ground of .the insufficiency of the evidence; and from the order made in that behalf plaintiff has taken this appeal.

The evidence adduced at the trial is conflicting on some points, but in the main is without dispute. Briefly stated, it is as follows: Shortly after 2 o’clock on the morning of May 7, 1927, one of the defendant’s freight trains consisting of an engine and fifty-three cars, traveling easterly between Redwood City and Newark over the Dumbarton cutoff, stopped a short distance easterly of Redwood City to take water from a tank standing just beyond the so-called Middlefield road crossing in San Mateo County, and in doing so blocked the crossing, about one-third of the train not yet having passed over it. Just as the train was coming to a standstill appellant approached the crossing from the north in an automobile. He was driving alone and did not see the train until within ten feet of it, and then, in order to avoid colliding with the side of it, turned abruptly…