Kenna

Action to recover damages for causing the death of Patrick Fallon, the plaintiff’s intestate. At the close of the plaintiff’s testimony the court granted a nonsuit. The plaintiff moved for a new trial; and from the order denying the same, as well as the judgment, he has appealed.

In January, 1885, the defendant was engaged in erecting a tower on the Oakland mole, and constructing a signal system to be connected therewith. The plaintiff’s *28 intestate was employed by the defendant as a plumber, for fitting and connecting pipes to be laid in the tower and alongside its tracks. This tower was about four hundred feet from the end of the mole, and a few feet to the south of the Alameda track. There were two tracks for the Alameda trains, and to the north of them were the tracks of the Oakland trains. Between these tracks, and about one hundred feet to the east of the tower, there was an open space in which was placed the plumber’s bench. On the 10th of January Fallon started to go from the tower to this bench for the purpose of cutting a piece of pipe, and while walking upon the end of the ties on the outer or southern most track, at a point about seventy-five feet east of the tower,…