Whitney

This is an appeal from an order granting a new trial. The action is one for damages and is brought by the administrator of the estate of O. W. Sinclair, deceased, for the death of Sinclair in an accident in which an automobile which was being driven by the deceased was struck by a train of respondent at a public road crossing in Humboldt County. Judgment was rendered on a verdict of the jury in favor of the plaintiff for twenty-five thousand dollars. The defendant regularly made a motion for a new trial on practically all the grounds authorized by statute, including that of insufficiency of the evidence to justify the verdict. The trial court disposed of this motion by making a general order granting the same. The appellant urges that this order should be considered as made upon the sole ground that the evidence showed deceased guilty of contributory negligence as a matter of law which would prevent a recovery; and in support of this claim, it is alleged in appellant's brief that at the time the order was made, a memorandum was given to the clerk stating such ground for the order. No such memorandum is a part of the record, and therefore cannot be considered by this court. It has,…

In our review of the evidence in this case, in the opinion filed herein, it will be observed that we stated: "In the case at bar it would seem that the question of negligence was one for the jury. To reach a conclusion on this question involves several deductive processes. First, it seems, the jury would have to decide from the evidence whether or not deceased knew of the location of the crossing, and that he was approaching it, for until they had decided that matter, they could not decide whether or not, under all the circumstances, deceased was negligent in not stopping to look and listen." It is not a question of conflict — it is a question of drawing an inference from testimony. As indicated in the above-quoted portion of the opinion, there were other circumstances also from which the jury would have to draw further inferences. For under our view of the law, it was not only necessary for the jury to draw an inference from the testimony upon the subject of deceased's knowledge of the location of the track, but it was also necessary for them to decide from the testimony before them (which was conflicting on these points) whether, if the deceased had stopped and looked and…