Maglinchey

Action to recover for personal injuries. The defendant had judgment, and the plaintiff appeals from an order denying his motion for a new trial. The injury occurred September 30, 1894,.and the plaintiff was seventeen years of age in the May preceding. He resided with his father in Berkeley,, and came to the West Berkeley station, situate at the corner of Third and Delaware streets, to take the local train to San Francisco. He arrived too late for the train he intended to take, and left the station, and went to watch some boys playing marbles, and when he returned to take the next passenger train, and when he was on the opposite side of the street, a freight train came between him and the passenger train, and blocked Delaware street, as he testified; that he waited four or five minutes, and was afraid he would be left, and undertook to cross between two freight cars on the bumpers, when, without notice by bell or whistle or any warning, the freight train started, and his foot was caught between the bumpers, and injured.

The only error specified by appellant is that the court erred in giving to the jury the following instruction: “And further, in this same line of instruction, I…