White

Defendant appeals from a judgment and order denying its motion for a new trial. The action was hrqught to recover damages for personal injuries. Plaintiff was in the act of driving across the railroad track of defendant, when a train approached, and, in attempting to save himself from a collision, he was thrown out of his vehicle and injured. The matters involved in this appeal are few, and not of great importance.

The negligence of defendant at the time of the accident is substantially conceded by its attorneys. Indeed, the testimony of its principal witnesses—employees—indicates a degree of negli *306 gence upon its part in the handling of its train of ears closely approaching recklessness. But to defeat plaintiff's right of action it is insisted that he was guilty of contributory negligence, and for that reason it is claimed the evidence fails to authorize and justify the verdict of the jury. By this contention we are brought to an examination of the salient facts of the case.

Plaintiff, in a one-horse vehicle, was traveling westward upon Market street, a well-traveled street in the city of Stockton. He arrived at Sacramento street, which intersects Market street and extends…