Durkee

On the 2d of July, 1876, M. W. Durkee, a boy four or five years old, was run over by an engine belonging to and used at the time in the service of the corporation defendant. To recover damages for the personal injuries *600 sustained by the boy on that occasion this suit was brought by his guardian ad litem against the railroad company, on the ground that the injuries were caused by the negligence of the company’s engineer while driving the engine, which was attached to a train of cars running on the railroad from San Jose to Niles, in Alameda county. The evidence in the case tended to show that, on the day of the casualty, the train had arrived on the railroad track at the Warm Springs station at 4:35, and, according to schedule time, it was to leave there at 4:36. When it stopped at the station the nose of the pilot or cow-catcher just came to the south end of a trestle-work, which formed part of the railroad track across a creek at the station at a point where a county road, running east and west, crosses the trestle. The train was started on schedule time across the trestle at a speed of about six miles an hour, and, at that rate of speed, it had moved for about twenty feet on…