Andruss

. „ , , . Appellee brought an action against apPellant in the District Court of the United Stat£s for the Northern District of Cali. fomi Southerr] Diy¡sio recoyer ,dam_ for ml A ■ hav¡ been waived ^ trial de¿ b'fore th| CQUrt without a . * From jud t entered ^ fayor of appellee> app¿lla°t ap. peals.

The facts in the case are substantially as follows:

Respondent, Philip Nieto, was injured on November 3, 1934, when struck by an automobile being driven by appellant, N. F. *251 Andruss. The accident occurred'between 5:15 and 5:30 p. m. Appellant was driving easterly on the Mountain View Highway in the Comity of Santa Clara in the State of California. This highway runs in a general easterly and westerly direction. Mear the place where the accident occurred the highway turns into, and is merged in, the Alviso Highway. The plaintiff was standing several feet west of where these roads intersect, about six feet north from the northerly edge of the paved portion of ¡he Mountain View Highway, and beside a concrete curbing or abutment along the northerly edge of a culvert located at said place. A railroad crosses the Mountain View Highway at an obtuse angle about ■forty-five feet west of…