Sullivan

This is an appeal from an order granting a new trial. The order reads as follows: “In this action the plaintiff’s motion for a new trial herein having been argued and submitted, now, by the court, it is ordered that said motion be, and the same is, hereby granted for the reason only that the court erred in giving as modified defendant’s instruction relative to the presumption of negligence, being the instruction to which plaintiff’s exception No. 7 was reserved in the statement on motion for new trial herein.”

The modified instruction referred to reads: “In an action against a railroad company for an injury under the case and proofs as here made, no presumption of negligence arises against the defendant from the mere fact that an accident has. occurred.”

The plaintiff was a passenger on a Valencia-Street car, going west, and was sitting on the right-hand side of the dummy in the last seat towards the closed portion of the car. A dump-cart with two men in it was traveling along the road in the same direction as the car, partly on or near the track, and on the right-hand side thereof. The gripman saw the cart and sounded his gong, and at the same time slowed down while approaching…