Cain

The plaintiff commenced an action against the defendant to recover damages which he sustained by reason of being hit by one of the defendant’s trains. The defendant answered and a trial was had in the trial court by the court sitting with a jury. The jury returned a verdict in favor of the plaintiff, and the defendant has appealed from the judgment, bringing up the judgment-roll and a bill of exceptions. [1] On this appeal the defendant contends that the evidence showed that the plaintiff was at the time of the accident, as a matter of law, guilty of contributory negligence, and that the judgment should be reversed. The accident occurred at the crossing of College Avenue and the defendant’s right of way in the city of Santa Rosa. The plaintiff was at the time of the accident on his way to his residence, and was entirely familiar with the route he was traveling, including the dangers, the signals, and the topographical conditions. College Avenue intersects the defendant's right of way at an angle of about forty-five degrees therewith. Buildings, fences, and trees on the plaintiff’s left greatly obscured, if they did not wholly obscure, the plaintiff’s view of the defendant’s right…