Pepper

Miles Pepper, a young man of twenty-five years, in driving across the track of the defendant’s railroad in or near the town of Los Gatos, was killed by a passing train. Miles was never married, and the plaintiff, his father and heir at law, brought this action, alleging that his son’s death was caused by the carelessness and negligence of the defendant.

The answer denied all negligence on the part of the defendant, and alleged that the death of the deceased was caused by his own negligence.

The jury found for the plaintiff, and assessed his damages at eight thousand dollars. This appeal is from *398 the judgment and from an order denying defendant’s motion for a new trial.

Several exceptions were taken to evidence and to instructions given and refused, and it is further specified that the verdict is nott justified by the evidence in many particulars. The more important specifications of insufficiency of the evidence are, in substance: 1. That the evidence was insufficient to show negligence on the part of the defendant; and 2. That it does show negligence on the part of the deceased contributing proximately to the accident.

1. The complaint alleged the negligence of the…