was in general charge of the defendant's was the plaintiff's right of action destroyed ranch as foreman. His authority was superior to that of the plaintiff, and he had power of direction and control over the latter. Soon after the plaintiff entered the defendant's employ, he suggested certain changes in the arrangement of the pumphouse, and these were carried out with the defendant's consent. The belt transmitting power to the lower pump ran down one side of a flight of stairs leading to the basement. Among other changes, the plaintiff extended a wooden platform over this side of the stairs, and moved to the edge of the extension an iron railing which before had run within a few inches of the cogwheels on the upper pump. This left a space of some 18 inches between these wheels and the railing. The purpose of the alterations was to give plaintiff easier access to the upper pump, and to obviate the danger of contact with the belt. With things in this condition, the plaintiff regarded the exposed cogwheels as dangerous, and constructed a sheet iron cover, which he placed over the cogwheels. Soon thereafter Moebius, the foreman, objected to the cover, which apparently caused some noise in the operation of the machinery. After several discussions, he finally ordered the plaintiff to take the cover off. The plaintiff replied, "If I have to take it off now, I will take it off; but you have to take the responsibility if any one gets hurt." The foreman persisted in his command, and the plaintiff removed the cover. On the following day the accident occurred.

[1-3] This evidence fully warranted the jury in finding that the defendant had failed in his duty to use ordinary care to furnish to his employé a reasonably safe place in which to work. The plaintiff was not obliged to prove that the defendant had personal knowledge of the removal of the cover. Moebius was in full control of the plant, and notice to him was, of course, notice to his principal. There is no force in the claim that there would have been no element of danger in the situation if the location of the railing had not theretofore been changed in accordance with the plaintiff's own suggestions. alterations had the approval of the defendant, and, if carried out according to plaintiff's ideas, would have included the covering of the cogwheels. The dangerous condition was created, not by the adoption of plaintiff's plan, but by the elimination of an important part of that plan.

The

[4, 5] When the accident occurred, the Employers' Liability Act of 1911 (Stats. 1911, p. 796) was in force. Under that law the defenses of assumption of risk and negl1gence of a fellow servant were not available to the defendant. Nor, under that statute,

by the fact that he may have been guilty of contributory negligence. He was still entitled to recover, if his contributory negligence was slight and that of the employer was gross in comparison; the jury being permitted to diminish the damages "in proportion to the amount of negligence attributable to such employé." Perry v. Angelus Hosp. Ass'n, 172 Cal. 311, 156 Pac. 449. Regardless, however, of any comparison of negligence, it cannot be said that the evidence required a finding that the plaintiff was guilty of negligence at all. He was, it is true, aware of the uncovered condition of the gears, and of the danger involved in coming in contact with them. But his duties required him to work at the pump to which the gears were attached, and it was clearly a question for the jury whether, in leaving the pump, he was exercising ordinary care in his manner of carrying the rag which caught in the gears, or in other respects. It appeared that the engine was fitted with two clutches, by means of which either pump might be stopped without interrupting the motion of the engine or of the other pump and it is argued that it was negligent for the plaintiff to go to the pump to tighten the nuts on the stuffing boxes without first stopping the pump by means of the clutch. But this again was a question of fact for the jury. The plaintiff testified that the stuffing boxes had to be tightened frequently, that it was not customary to stop the pump when that work was done, and that "no employer would stand for anybody stopping a pump" for such work. The facts do not bring the case within the exceptional class of those in which a court is warranted in declaring, as matter of law, that negligence has been established. In any event, the jury was certainly authorized to find that the plaintiff's negligence, if any, was slight, and that of the defendant, comparatively speaking, gross, and to diminish the damages accordingly. Proper instructions covering this phase of the law were given.

The court's charge to the jury, as a whole. was full, clear, and correct. The appellant attacks certain instructions given or modified, but we think his criticisms, if well founded at all, are directed to points too unim portant to have affected the result. Of the single assignment of error in the admission of evidence, it may likewise be said that the ruling did not work substantial prejudice to the defendant.

The judgment and the order denying a new trial are affirmed.

We concur: SHAW, J.; RICHARDS, Judge pro tem.

(178 Cal. 231)

ly in excess of the aforesaid speed limit as

LEVINGS et al. v. PACIFIC ELECTRIC RY. to amount to negligence so reckless as to be

CO. (L. A. 4245.)

(Supreme Court of California. May 7, 1918. Rehearing Denied June 6, 1918.)

near the border line of criminality. A number of witnesses to the accident declared that

the car came down Colorado street at a rate of speed of from 40 to more than 60 miles an

1. STREET RAILROADS 114(14)-COLLISIONS hour. Others described this speed as "ter-CONTRIBUTORY NEGLIGENCE EVIDENCE.

Evidence held sufficient to sustain finding, that automobilist killed by street car at street crossing was not negligent.

2. COSTS 260(4) — FRIVOLOUS APPEALS PENALTY.

Where defendant was extremely negligent, bordering on criminality, and there was very clear evidence to the effect that a person killed was not negligent, an appeal on the ground that deceased was negligent as a matter of law, and that defendant was entitled to a directed verdict, was frivolous, and a penalty will be added to the damages.

Department 1. Appeal from Superior Court, Los Angeles County; F. E. Densmore, Judge.

Action by Ella H. Levings and others against the Pacific Electric Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Frank Karr, R. C. Gortner, E. E. Morris, and A. W. Ashburn, all of Los Angeles, for appellant. John F. Poole and George A. Boden, both of Los Angeles, for respondents.

rific" and "furious." The occupants of the automobile who survived the collision declared that no bell was rung or other warning given until just before the car crashed into the automobile. There was also evidence showing that after the impact the car, in spite of efforts of the motorman to stop it, ran 300 feet before being brought to a stand

still.

It will thus be seen that there was ample proof that the defendant's negligence was of the most gross and inexcusable kind. Upon the question of the contributory negligence of the deceased driver of the automobile, the uncontradicted evidence of its surviving oc

cupants was to the effect that the automobile

as it approached the intersection of El Moli-
no avenue with Colorado street was traveling
at a rate of speed of from 10 to 15 miles an
hour; that its deceased driver and its other
occupants looked in both directions up and
down Colorado street through the palms
which line the avenue, but only partly ob-
struct the view, and that no car was in sight,
and that there was no sound nor warning
One of the oc-
given of an approaching car.
cupants of the machine was a musician with
an ear trained to distinguish sounds, and she
testified that she heard no sound of warning
of the car's approach.

The distance from

the southerly curb line of Colorado street to the street car track was 26 feet. As the automobile emerged from El Molino avenue to cross this distance the car was for the first time seen approaching at the speed above indicated, but at the top of the hill more than a block away. The driver of the automobile at once attempted to stop it, but could not do so before reaching the track. The car traveled the length of the block, which was shown to be 300 feet, while the automobile was going a distance of not to exceed 26 feet, and after striking and demolishing it, went a further distance of 300 feet before being brought to a stop.

RICHARDS, Judge pro tem. This is an appeal from a judgment in favor of the plaintiffs in an action for damages for the alleged negligence of the defendant in the operation of one of its cars, by which a collision occurred with an automobile being driven by one Willard F. Levings, husband of the plaintiff Ella H. Levings, and father of the other plaintiffs, in which the said Willard F. Levings lost his life. The collision occurred at the intersection of Colorado street and El Molino avenue, in the city of Pasadena, where, upon the afternoon of September 14, 1913, an east-bound car being operated by the defendant's employés on Colorado street struck the automobile of the deceased going north on El Molino avenue and attempting to cross Colorado street. The appellant presents but one question upon this appeal, and that is the question whether upon the facts of the case the deceased was chargeable with such contributory negligence, as a matter of law, as would prevent a recovery of damages for his death. It is admitted by the appellant that the car which collided with the automobile of the decedent was being operated at a speed in excess of that allowed by the ordinances of Pasadena, which provide for a maximum speed of 20 miles an hour within said city. Aside lant to sustain it have no application to a from this admission, however, there is ample evidence tending to show that the car, immediately before and at the time of the collision, was being run at a rate of speed so great

[1, 2] Upon this state of the record the appellant contends that the deceased driver of the car must be held to have been guilty of contributory negligence as a matter of law, and that the appellant was entitled to a verdict in its favor upon that ground alone. This contention has not the slightest semblance of merit. The cases cited by appel

state of facts such as the record herein discloses. The appeal is entirely without merit, and a clear case is presented for the imposition of a penalty upon the appellant for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

having begun and prosecuted a frivolous ap-[ed that if the co-owner neglected to pay and peal.

The judgment is affirmed, with $100 added damages for an appeal, which was frivolous and taken for delay.

We concur: SLOSS, J.; SHAW, J.

(178 Cal. 237)

ROBINSON et al. v. BRIEST. (L. A. 4212.) (Supreme Court of California. May 8, 1918. Rehearing Denied June 6, 1918.)

1. QUIETING TITLE 44(1) BURDEN Or PROOF.

In a suit to remove cloud on title, plaintiff has the burden to prove the facts alleged, and on which the claim for judgment is based. 2. MINES AND MINERALS 23(6) ASSESSMENT WORK-NOTICE OF FAILURE TO CONTRIBUTE.

contribute her share of the expenditure so claimed to have been made by defendant within 90 days from the date of service, her interest in said mining property would become that of defendant.

The complaint, filed February 3, 1914, after stating the fact of service of said notices, alleged that plaintiff and defendant jointly, and not defendant alone, had done the assessment work, each contributing one-half the cost and expense thereof; that notwithstanding such fact defendant threatened to and would, unless restrained from so doing, file the notices so served, and an affidavit of service thereof, with the recorder of Riverside county, in which said mining claims were located, as provided in section 14260, Civil Code, thus depriving plaintiff of the record title to a one-half interest therein, all to her irrepar

Rev. St. U. S. § 2324 (U. S. Comp. St. 1916, able damage, and prayed that it be adjudg$ 4620), provides for assessment work on mined that no sum whatsoever was unpaid by ing claims, and that upon the failure of a co- plaintiff on account of work and labor done owner to contribute his proportion, the co-owner, in performing the annual assessment work on who has performed the labor, may give notice to said mining claims, and asked that defendthe delinquent for 90 days, and if at the expiration of such time the delinquent fails or refuses ant be enjoined from filing the notices and afto contribute his interest, the claim shall be- fidavits of service thereof in the recorder's come the property of the co-owner who has office of Riverside county. No injunctive ormade the improvements. Civ. Code, § 14260, provides that when the notice in Rev. St. U der, however, was at any time issued. S. § 2324, is given it may be recorded in the office of the county recorder, and the original or certified copy of the record shall be prima facie evidence that the delinquent has failed or refused to contribute his proportion of the assessment work. A co-owner filed a notice provided for in these two sections, but did not file it within 90 days after service. Held, that such notice did not invoke the rule of evidence with

in section 14260.

VICTOR E. SHAW, Judge pro tem. This action grew out of the following facts: Plaintiff, Catharine N. Robinson (wife of James M. Robinson), and defendant were co-owners of two certain groups of mining claims, upon one of which defendant asserted that he, at his own expense, had done the assessment work required by section 2324 of the Revised Statutes of the United States (U. S. Comp. St. 1916, § 4620) for the years 1910 to 1912, both inclusive; and that upon the other group he had done said assessment work for the years 1908 and 1912, both inclusive.

On November 5, 1913, he caused to be served upon plaintiff, as such co-owner, the notice provided by said section, wherein it was stat

By his answer, filed March 3, 1914, defendant, admitting that plaintiff was a co-owner of said property up to the expiration of 90 days after service of the notices, denied that she had, as alleged, contributed anything towards said assessment work for the years specified in the notices, and alleged the doing of the work by himself alone, as stated

in the notices so served upon plaintiff, which notices, given pursuant to section 2324, United States Revised Statutes, together with affidavits of service thereof, were, on February 9, 1914, filed for record in the recorder's office of Riverside county.

The sole purpose of the action, as stated in the complaint, was to obtain an injunction restraining defendant from filing for record the notices and affidavits of service, as provided in section 14260, Civil Code, which is as follows:

* *

"Whenever a co-owner of a mining claim shall give to a delinquent co-owner the notice in writing * pro. vided for in section twenty-three hundred and twenty-four, Revised Statutes of the United States, an affidavit of the person giving such notice, stating the time, place, manner of service, and by whom and upon whom such service was made, shall be attached to a true copy of such notice, and such notice and affidavit must be recorded in the office of the county recorder, in books kept for that purpose, in the county in which the claim is situated, within ninety days, after the giving of such notice. original of such notice and affidavit, or a duly certified copy of the record thereof, shall be prima facie evidence that the delinquent mentwenty-four has failed or refused to contribute tioned in section twenty-three hundred and his proportion of the expenditure required by that section."

*

The

The theory of the plaintiff, as alleged in appears from the pleadings, they were not filed the complaint, was that the filing of the no- until after the expiration of 90 days; hence, tices, with affidavits of service thereof, would, by such act of filing, defendant obtained none under this provision of the statute, vest in of the rights or advantages which he might defendant record title to the interest in the have secured by a compliance with the proviproperty theretofore owned by her, to which, sion of section 14260. Therefore, there was however, if plaintiff had, as she alleged, con- no cloud of record upon her title. Construtributed her share in doing the assessment ing the complaint as stating a cause of acwork, he would not be entitled and therefore tion based upon the allegation that plaintiff should be restrained from doing an act which had paid her full share for work done upon would cloud her title. Thompson v. Pack (D. the mines, it devolved upon her, since such alC.) 219 Fed. 624. As heretofore stated, how-legation was denied, to prove such fact. This ever, the notices and affidavits, in the absence she did not do, and in the absence of such of any injunctive order, were filed on Feb-proof it follows that the court erred in denyruary 9, 1914.

[1] At the trial of the issues so joined by complaint and answer plaintiff declined to offer any evidence in support of the allega tions contained in the complaint, and having

ance.

rested, the defendant moved for a nonsuit, which motion was denied. This ruling, in our The act opinion, was clearly erroneous. which it was sought to enjoin having been performed, no purpose could be served by the making of an order enjoining its performOn the other hand, assuming as the trial court apparently did that the complaint was sufficient in stating a cause of action to quiet title as against the defendant's claim based upon the admitted service of the notices as provided by section 2324, U. S. Rev. Stats., by reason of which, if the facts therein stated were true and plaintiff neglected with in 90 days after such service to contribute her share, her interest in the mines would become the property of defendant, it devolved upon her to affirmatively prove that, as alleged, she had contributed her share towards doing the assessment work. From the effect declared by section 2324 to follow from the service of the notices, plaintiff, as such coowner, if not delinquent, might safely rest until defendant by affirmative action invoked a judicial determination of the question, in which case the burden of proof would rest upon him to establish the facts upon which he based his claim to her interest in the property. O'Hanlon v. Ruby Gulch Min. Co., 48 Mont. 65, 135 Pac. 913. Having, however, sought affirmative relief upon the theory that the acts of defendant clouded her title, the burden was upon her as plaintiff to prove the facts alleged, and upon which she based her claim to recover judgment quieting her title. In Pixley v. Huggins, 15 Cal. 128, in discussing the test as to whether or not a certain instrument would cast a cloud upon the title of the plaintiff's property, it was said:

"Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary, the cloud would exist; if the proof would be unnecessary, no shade would be cast by the presence of the deed."

The statute (section 14260, Civil Code) provides that the filing of the documents shall be within 90 days after the service of notice, which service was had on November 5th. As

ing defendant's motion for nonsuit.

[2] With his answer defendant filed a crosscomplaint, alleging that he had performed the required assessment labor upon the property for the years designated in said notices,

which were served on November 5, 1913, and that on February 9, 1914, he filed with the recorder of Riverside county, wherein the mining property was located, the original of said notices, together with affidavits of service thereof, and asked that his title to the entire property be quieted as against plaintiff. To this cross-complaint plaintiff filed an answer denying the allegation that defendant had contributed other than one-half the entire expense of doing said work. After the denial of defendant's motion for nonsuit, the trial of the issues so joined by cross-complaint and answer proceeded, defendant offering in evidence the notices and affidavits of service filed with the recorder of Riverside county on February 9, 1914, upon the theory that, under the provisions of section 14260, Civil Code, they constituted prima facie evidence that plaintiff had failed or refused to contribute her proportion of the expenditure upon said mines required by section 2324, Rev. Stats. of the United States, to which section 14260 is supplementary. But the provision contained in section 14260 requires that the documents shall be filed within 90 days after the making of such service; otherwise the filing is a futile act. It appears from his pleading that they were not filed until 5 or 6 days after the expiration of such time, and hence did not constitute prima facie evidence under the provisions of the rule specified in the section. Conceding that defendant was under the allegations of his cross-complaint, entitled to a decree of forfeiture, nevertheless, since the documents were not filed within 90 days from service, he was in no position to invoke

the rule of evidence declared in section 14260, Civil Code. It devolved upon him, in accordance with the ordinary rules of evidence, to establish the facts which entitled him to the forfeiture provided for by section 2324, Rev. Stats. of the United States, namely, that he and plaintiff were co-owners of the property; that he had done the annual assessment work as claimed; that plaintiff had not contributed her share of the expense of doing the same; that he had served upon her the notice pro

vided for in said section; and that she failed | plaintiff a beneficiary under her will, and or refused to contribute her proportion of such expenditure within 90 days from the service of such notice.

The judgment rendered in favor of plaintiff quieting her title was not within the issues joined by the complaint and answer, and no such relief was asked. Moreover, conceding such issue to have been joined, no evidence was offered by her in support of the allegations of her complaint.

The judgment is reversed.

We concur: MELVIN, J.; WILBUR, J.

(36 Cal. App. 644)

MORTON v. ANGST. (Civ. 2151.) (District Court of Appeal, Second District, California. March 30, 1918.) 1002-REVIEW-FIND

APPEAL AND ERROR

INGS OF FACT.

Where there is a conflict in the evidence, the finding of the trial court will be affirmed. Appeal from Superior Court, Los Angeles County; Paul J. McCormick, Judge. Action by Jennie Morton against Avis E. Angst, executrix of the estate of Annie E. Luscombe, deceased. From judgment for defendant, plaintiff appeals. Affirmed.

that no contract was ever made by the decedent or on her behalf, either in writing or otherwise, wherein the decedent promised to compensate the plaintiff by bequest or otherwise for any services rendered to the decedent by the plaintiff. This finding is sustained by the evidence. The only testimony to which our attention is directed by counsel and upon which he relies as constituting proof that plaintiff rendered services because of or in reliance upon the existence of a will in her favor is so vague, indirect, and unsatisfactory that the court could not very reasonably have made any other finding than that which it did make.

Concerning the services alleged to have been rendered to the decedent for which the plaintiff seeks to be compensated, the court found that the plaintiff occasionally did perform some acts of service for the decedent, but that the same were done and performed voluntarily by the plaintiff without the expectation of making any charge therefor; that said services were rendered solely on account of friendship which had existed for a long time between the plaintiff and the decedent, and that the decedent treated such services as and believed them to be only acts of friendship; that decedent had no knowledge that plaintiff intended to make any charge for such services, and did not intend or expect to compensate the plaintiff therefor, otherwise than by reciprocal acts of friendship; that the value of the services rendered by plaintiff is not the sum of $1,CONREY, P. J. This is an action to re- 000 nor any other sum. These findings also cover upon a rejected claim against the es- are amply supported by the evidence. It tate of a deceased person. As stated by does appear that the plaintiff and the dececounsel for appellant, the cause of action is dent for many years were intimate friends; upon a quantum meruit for services alleged that from time to time each of them visited to have been rendered to the decedent by the the other; that the plaintiff did perform on plaintiff, both claim and complaint contain-behalf of the decedent certain acts of serving the incidental allegation that the dece-ice in relation to shopping, hat making, letdent had promised to provide for plaintiff ter writing, etc. They were such acts as one by will, but had not done so in the will admitted to probate.

Arthur H. Barendt, of San Francisco (Arthur Wright,. of Los Angeles, of counsel), for appellant. Frank Stewart and J. W. Howell, both of Los Angeles, for respondent.

An agreement to make any provision for any person by will is invalid, unless the same or some note or memorandum thereof is in writing, subscribed by the party to be charged or by his agent. Civ. Code, § 1624, subd. 7. It is in evidence that in April, 1913, the decedent made a will which by its terms gave to the plaintiff the sum of $150, and also made the plaintiff one of four residuary legatees, but this will was revoked by the later will which has been admitted to probate and in which no provision is made for the plaintiff. The court found the facts to be that the plaintiff did not render any services to the decedent in reliance upon or because of any promise of decedent to make

woman might do for another as acts of friendship, although some of them were also such acts as might have been done by a secretary or companion or milliner. But the court had before it all the evidence of these circumstances, related in detail by various witnesses, and made its findings as above stated. The utmost that can be said in favor of the appellant on this question is that there was a conflict in the evidence. That being so, it is a familiar rule that the findings must be affirmed. It appears to us that the claim of the plaintiff is without merit.

The judgment is affirmed.

We concur: JAMES, J.; WORKS, Judge pro tem.

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