Tobin

The defendant is an incorporated cable railway company, operating on Post street and certain other streets in the city of San Francisco. The plaintiff was a passenger on one of defendant’s cars, and, while attempting to *216 alight from the ear at the junction of Post and Kearny streets, was thrown upon the pavement by the movement of the car and personally injured. This action was brought to recover $30,000 damages for the injury, which, it is alleged, resulted solely from the negligence of the defendant. A trial by jury resulted in a verdict for plaintiff, assessing the damages at $10,000. On defendant’s motion for a new trial the court ordered that if, within ten days, the plaintiff remit $3,000 from the damages assessed by the jury, the motion for neiv trial “will be denied, otherwise' it will be granted.” The plaintiff accordingly remitted $3,000 and a new trial was denied, and judgment entered for $7,000. The defendant appeals from the judgment, and from the order denying a new trial.

1. Counsel for appellant contends that the evidence is insufficient to justify a verdict of negligence on the part of the defendant, and, if it is, that it shows contributory negligence of the…