Benson

This action is brought by the plaintiff, an infant, to recover damages for personal injuries alleged to have been sustained by her while walking upon the roadway of defendant, by being run into by a locomotive operated by defendant.

The case was tried by a jury, which returned a verdict for defendant, and the appeal is from the judgment and from an order refusing a new trial.

Plaintiff’s evidence tended to prove the following facts:—

Plaintiff, a child of but six years of age, with her father and the other members of her family, took passage on a train of defendant for Watt’s Station, in Alameda County. As the train approached Watt’s Station, the whole family arose and took positions at the door of the car, so as to be able to step off the train without delay, and immediately on the stoppage of the train at the station proceeded to leave it; but the stop was so short that but part of the family were able to get off, and the train moved away with the father and the plaintiff and her brother still on it. While the family was thus endeavoring to get off, the conductor of the train was on the platform of the car, and when the train began to move, the father asked him, “Why didn’t…