Frew

This action was for the recovery of damages for personal injuries alleged to have been caused by defendant’s negligent operation of an automobile. A jury returned a verdict for the defendant. The plaintiff moved for a new trial upon the ground of the insufficiency of the evidence to justify the verdict and the motion was granted. The defendant has appealed from the order. He contends that he was not shown to have been negligent, that the evi deuce established plaintiff’s contributory negligence as a matter of law and that the order was consequently an abuse of discretion.

The plaintiff was an engineer employed in the division of highways and on July 3, 1928, was inspecting a section of the state highway which was under course of repair between Gonzales and Salinas. This section of the highway for several miles follows a straight course north and south and on the day of the accident, which occurred about 11 o’clock A. M., the traffic thereon was heavy. The pavement which was being resurfaced was twenty feet wide and plaintiff was examining the west half thereof. According to his testimony he was standing at a point about five feet east of the westerly edge of the pavement when he…