Gaster

This is an appeal from an order granting a new trial after a verdict had been secured in favor of the defendant.

On the motion for a new trial the respondent contended that certain instructions which were given at the request of the appellant were erroneous and therefore warranted the granting of a new trial, but the chief question involved on this appeal is whether in view of the evidence the trial judge abused his discretion in granting the new trial.

On November 8, 1923, at about 8 o’clock P. M., the defendant was driving his Essex coupe automobile from Richmond toward Oakland along San Pablo Avenue. It was a rainy night. There was a double line of street-car tracks along this avenue. Seated upon defendant’s right on the front seat was his friend Shroeder. Defendant’s wife and Mrs. Shroeder occupied the rear seat. All agreed they were traveling about fifteen miles an hour, with the machine running over the westerly rail of the street-car track.

The plaintiff, who is an elderly lady, had been shopping at a grocery store on the westerly side of San Pablo Avenue at its intersection with Thirtieth Street. With a number of small parcels under her left arm she went to the crossing…