McVea

In this action the plaintiff recovered a verdict against the defendant for $3,500, on account of injuries sustained through being struck and knocked down by an automobile operated by defendant. Upon the hearing of the usual motion, the court ordered a new trial unless the plaintiff remitted one-half of the amount of the verdict. The plaintiff consented and thereupon the motion for new trial was denied. The defendant has appealed from the judgment based upon the verdict, as thus altered.

It appears from the evidence that about 8 o’clock on the evening of January 15, 1928, the defendant was driving an automobile through the city of Bakersfield. He was traveling north on Chester Avenue. This street crosses a railroad, with several tracks, at a point where there is no street intersection. Chester Avenue is paved from curb to curb, to the south of the railroad crossing, with a sidewalk on the east side thereof. The railroad crossing itself is paved, but with no sidewalk. From the railroad crossing, the state highway extends north on Chester Avenue, paved in the center, with an unpaved portion on each side. Just prior to the accident, the plaintiff was proceeding north on the easterly…