Wyckoff

This is an action for persona] injuries to plaintiff incurred in a collision between a locomotive of defendant and a span of horses and wagon driven by plaintiff at a street crossing in the town of Burbank in Los Angeles county. The verdict was for the defendant, and the defendant appeals from an order of the court granting plaintiff a new trial.

The testimony of the plaintiff as a witness in his own behalf was in effect as follows: Plaintiff and his father were driving into the town of Burbank in a two-horse wagon on Verdugo street. About three hundred feet from defendant’s track they discovered .a horse fast in a wire fence. They stopped there and both went to the relief of the horse. Finding it necessary to cut the wire, that the horse might be released, the plaintiff returned to the wagon and drove in a walk in the direction of the railroad track, intending to cross the same for the purpose of obtaining some wire nippers. When he reached the wagon he looked and listened to learn whether any trains were approaching. He could hear none and see none “on account of the box-ears that were along the sidetrack between the main track and the section-houses, and the shade trees around…