McNamara v. North Pacific Railroad (50 Cal. 581, 1875)

By the Court:

The presence or absence of negligence on the part of defendant and of contributory negligence on the part of plaintiff, were questions of fact to be passed on by the jury in view of all the circumstances proved.

These questions were practically taken from the jury by the instructions of the court, and we must, therefore, reverse the order denying a new trial. (Perry v. S. P. R. R. Co., ante, p. 578.)

Judgment and order reversed, and cause remanded.