Herbert

Action for damages for personal injuries resulting from a collision with a westbound train of defendant at a private crossing about one-half mile west of Penryn. Plaintiff' *229 recovered a verdict for five thousand dollars. The appeal is from the judgment and from a refusal of a new trial.

It is contended on this appeal that upon plaintiff’s own testimony, and conceding to him all disputed points in the evidence, and also that defendant was guilty of such negligence that it would be liable if plaintiff were not also in fault, it must be held as matter of law that plaintiff was guilty of such contributory negligence that he cannot recover.

The rule is, that negligence is a question of fact for the jury, even when there is no conflict in the evidence, if different conclusions upon the subject can be rationally drawn from the evidence. This proposition has been frequently declared by this court. (Fernandes v. Sacramento etc. R. R. Co., 52 Cal. 45; McKeever v. Market Street R. R. Co., 59 Cal. 294 ; Chidester v. Consolidated etc. Co., 59 Cal 197; House v. Meyer, 100 Cal. 592 .) The rule is general, and appellant presents a very long list of cases in which the rule has been stated.…