Davey

The action was for damages for personal injuries. At the conclusion of plaintiff’s evidence defendant moved for and was granted a nonsuit. Plaintiff pleaded that defendant operated its railroad upon a public highway in Alameda county, known as “Stanford street.” She averred that there was a culvert or drain crossing Stanford street, and extending under the tracks of defendant, which drain was securely and safely covered with planking and earth. Defendant opened this culvert, and left it “open and unprotected and in a dangerous condition for the whole length across said Stanford street, and under the track” of defendant. Upon the night of the accident, plaintiff “proceeded to cross said railroad track on said street,” and was precipitated down through and between the rails of said track into the excavation. By this fall, and in this manner, she suffered the injuries complained of. It will be noticed that the complaint charges that the defendant corporation maintained its road upon a public highway. It clearly appears to have been the intent of the pleader to charge defendant with negligence in having laid open and left unguarded a drain or culvert upon a highway over which it had…