Bygum

This is an appeal by the defendant from an order granting the plaintiff a new trial after a judgment of nonsuit had been entered against him. The action was brought to recover damages for the death of plaintiff’s son, alleged to have been caused by the negligence of the defendant, its servants and employees, in operating its railroad. The boy was between five and six years of age, and, when attempting to cross defendant’s railroad track, was struck by a moving engine, and instantly killed. The complaint alleged that the accident which resulted in the death of the boy occurred about 1 o’clock in the afternoon, at the crossing of the railroad and-University avenue, in the village of West Berkeley, Alameda county. ' The answer denied that the accident occurred at the crossing named in the complaint, or at any public crossing of the railroad; denied that it occurred by reason of any negligence or fault on the part of the defendant or its servants and employees; and alleged that it occurred solely by and through the negligence of the boy and his father, the plaintiff. The nonsuit was granted upon the theory that the accident did not occur at a street crossing, and that the -case came…