Basham

This action was begun by Eva M. Coffey as administratrix of the estate of her deceased husband, O. A. Coffey, to recover damages caused by the death of her husband, alleged to have been the result of negligence of the defendants. The verdict was given for the plaintiff and the defendants appeal from the judgment.

After the taking of the appeal Eva M1. Coffey died, and Mary T. Basham was duly appointed as administratrix of said estate, and she has been substituted as plaintiff herein.

The accident occurred in the city of Merced, on the main track of the Southern Pacific Railroad, at the crossing of R Street. The deceased was traveling on R Street from the north toward the south, toward said crossing, at the time the train approached the city of Merced. He was in a farm wagon, driving two horses and leading two others which were hitched to the rear of the wagon-bed. The bed was what is called a grain wagon-bed, composed of timbers and planks set upon the running gears, and not extending above the wheels. He was sitting about one-third of the way back from the front of the bed, either on a box or on some sacks. The horses were gentle and entirely under control. They were walking at…

I dissent.

I concur in what is said in the opinion on the question of the negligence of the deceased, and I have no objection to the statements as to the law in regard to the last clear chance doctrine. But it does seem to me, after a full consideration of the record, that the evidence was such as to sufficiently support the conclusion of the jury and trial judge that facts existed which make the Railroad Company liable under the last clear chance doctrine, and that the reversal of this judgment is in violation of our well-settled rule that this court will not interfere with the conclusion of the jury ánd trial court on questions of fact where the evidence is substantially conflicting.

There was much testimony as to the giving of the warning signal, and so far as its character is concerned there is no conflict in the evidence. The short, sharp blasts of the locomotive apparently attracted the attention of and alarmed the whole neighborhood. But on the question of the distance of the locomotive from the crossing at the time the first of these blasts was sounded, as well as on the question of the distance of Coffey therefrom, there is much conflict in the evidence, some of the…