Noyes

I concur in the judgment.

In the former decision it was said: “The same facts which show that the deceased was negligent show also that the employees of respondent were not guilty of negligence.”

Upon further consideration of all the evidence, I am not prepared to say, as matter of law, that the engineer in charge of the engine on the main track, with his knowledge of all the circumstances, was not negligent in running at a rate of speed which would bring the locomotives together at the narrow part of the road where the men were traveling.

The question is not, How would I act were I a juror? but whether there is any evidence at all from which inferences may be drawn in support of or against the charge of negligence. Speaking of nonsuit, the court, in Wilson v. Southern Pacific R. R. Co., 62 Cal. 172 , said: “But where negligence, as the essential fact in the case, is disputed, and the evidence of it is conflicting, or con_ sists of circumstances from which inferences may be drawn for or against it, it is the province of the jury *292 to determine, under instructions by the court, whether the evidence establishes it as the proximate cause of the injury complained of.”

Whether…

This is an action brought by the administrator of one De Mattos, to recover damages for causing his death.

The plaintiff was nonsuited by the superior court, and his appeal from the judgment presents two questions: 1. Did the evidence introduced by the plaintiff in the superior court make out a prima facie case of negligence on the part of the defendant? and if so, 2. Did such evidence show that De Mattos was himself guilty of contributory negligence?

The following brief statement of the facts which the evidence on the part of the plaintiff proved, or strongly tended to prove, is extracted from the brief of bis counsel, and is in every particular sustained by the record: —

" On the twenty-sixth day of July, 1886, the deceased, *289 Manuel F. De Mattos, was run over and killed by an engine on defendant’s road, near Port Costa. At and for many years before that time, the defendant owned and operated a railroad running from Port Costa, along the margin of the Straits of Carquinez, in a southerly direction. At some distance southerly from Port Costa, on the line of the road, were located certain extensive grain warehouses, called the Nevada Docks. There was a double track running…