Esrey

Plaintiff recovered a judgment for damages against defendant for personal injuries sustained by being struck by a moving car of defendant. Defendant has appealed from the judgment and order denying a motion for a new trial. The case has once been before the court ( 88 Cal. 399 ), and a detailed statement of the facts may there be found.

For our present purposes the following facts, as testified to by plaintiff, are deemed material: Upon attempt *544 ing to leave the depot grounds of defendant, and with a view of going around the end of the depot platform, plaintiff crossed the railroad track, and thereupon found herself between the outside rail of the track and the platform of the depot, which platform was about five feet in height; and the width of this intervening space was about three feet. At this moment of time a train came backing toward her, composed of flatcars, which prevented her going further, and for her own safety she stood against the side of the platform, with the object of allowing the cars to pass by. The original width of this space being but three feet, and the cars extending some distance outside and beyond the track, it is apparent that she at this time was…