The rule applicable to such a case as is disclosed by this record was applied in Pastene v. Adams, 49 Cal. 87, 90, a case quite similar in its general features to the one at bar. That case answers the contention of the appellant that his negligence became passive and was overlapped by that of the Electric Company when its car collided with his automobile. There the defendant, a lumber company, had piled three tiers of timbers about twelve inches square between gangways leading to the street on which the business of the company was maintained. The piling of the timber was so carelessly done that a wagon passing through one of the gangways came in contact with one of the projecting timbers, causing the pile to fall upon the plaintiff, who was at the defendant's office to purchase lumber, with the result that his leg was severely injured. The argument was that if, as was contended was true in that case, "a subsequent and distinct cause, intervening after that for which the defendant is responsible had ceased to act, has been productive of injury, and that but for that, no injury would have occurred, the defendant is not responsible." The supreme court, denying the soundness of that doctrine as applied to the facts of that case, said: "If the timbers were negligently piled by the defendant, the negligence continued until they were thrown down and (concurring with the action of Randall) was a direct and proximate cause of the injury sustained by the plaintiff."

In Tompkins v. Clay Street Ry. Co., 66 Cal. 163, [4 Pac. 1165], two cars, owned by two different companies, collided at the corner of Clay and Polk Streets, in the city of San Francisco. The court, replying to the contention that there was no joint liability, says: "In Pennsylvania, it seems to have been held that when a passenger on a carrier vehicle is injured by a collision resulting from the mutual negligence of those in charge of it and another party, the carrier alone must answer for the injury. . . . But the weight of authority is otherwise, and is to the effect that, if the negligence of the managers of both vehicles contributes to the injury, the party injured may recover from the proprietors of either or both. (Wharton on Negligence, p. 395, and cases cited.) Where both are sued, the plaintiff may ordinarily dismiss as to either, and if it turn out at the trial that one was not guilty of negligence. he may, on sufficient evidence, take a verdict. against the other."

But it is unnecessary to multiply herein authorities, of which there are many in this and other jurisdictions, upon a proposition so thoroughly settled in California. It is suffcient to cite the following in addition to those above considered: Barrett v. Southern Pac. Co., 91 Cal. 296, 303, [25 Am. St. Rep. 186, 27 Pac. 666]; Doeg v. Cook, 126 Cal. 218, [77 Am. St. Rep. 171, 58 Pac. 707]; Horgan v. Jones, 131 Cal. 521, [63 Pac. 835]; Kimic v. San Jose & L. G. etc. Ry. Co., 156 Cal. 379, [104 Pac. 986]; Muller v. Hale, 138 Cal. 165, [71 Pac. 81]; Heath v. Manson, 147 Cal. 694, [82 Pac. 331]; Merrill v. Los Angeles G. & E. Co., 158 Cal. 499, [139 Am. St. Rep. 134, 31 L. R. A. (N. S.) 559, 111 Pac. 534]; Williams v. San Francisco etc. Ry. Co., 6 Cal. App. 718, [93 Pac. 122]; Spear v. United Railroads, 16 Cal. App. 659, [117 Pac. 956], and many other cases and authorities unnecessary to name. But we do not understand counsel for the appellant to contend that there is not joint liability where joint or concurring separate and independent acts of negligence constitute the proximate cause of the damage. Their position is, as seen, that the negligence of the appellant was not an active contributing cause of the injury. We have, however, already shown the utter fallacy of this position, and as further showing that that theory is wholly unsupportable we call special attention to the case, already cited, of Spear v. United Railroads, which bears a marked similarity in all essential particulars to the case here. The case of Williams v. San Francisco & N. W. Ry. Co., cited above, is, as to the general nature of the facts, also noticeably similar to this case. In that case, the plaintiff's wife was driving an excitable horse along a public highway upon a portion of which the defendant had placed, and for a long time previously to the accident had maintained, and at the time of the accident still maintained, a woodpile. The horse became frightened at the noise made by a passing locomotive traveling over the defendant's railroad track, situated near and running parallel with the highway, and started to run. The deceased was unable to control or manage the animal, and while the horse was running at a lively rate of speed the vehicle to which the horse was attached, and in which the deceased was riding, collided with said woodpile, the result of the force of the impact being to throw her with such violence to the ground that she sustained fatal injuries. It was argued in that case that the placing of

the obstruction in the public highway was not the proximate, cause of the damage. The court said: "The defendant was primarily at fault in maintaining the obstruction upon the highway. . . . There is always ground for apprehending accidents from obstructions upon highways, and any person who wrongfully places them there or aids in so doing must be held responsible for such accidents as may occur by reason of their presence. . . . The rule is that the defendant is answerable in law for negligence proximate in causal relation to the damage, or, in other words, it is liable if the obstruction for the existence of which it is responsible is the direct cause of the accident, with its resulting damage."

So here. The appellant was confessedly primarily at fault in placing and leaving his machine in a place where it would necessarily operate as an obstruction to the passage of the cars of the Electric Company over and along its track, and, as above declared, the negligence involved in that wrongful act necessarily continued so long as the obstruction remained and until it had contributed to the damage which could not have occurred but for said obstruction.

The suggestion that the day was clear and that, therefore, the motorman of the street-car could, by the exercise of ordinary diligence, have seen the automobile on the car-tracks in time to have avoided the collision, is a proposition which involves the doctrine of the last clear chance or opportunity. But, while counsel for the appellant undertook to invoke that doctrine in their opening brief, they expressly abandoned that position at the oral argument and conceded that that doctrine has no application to this case. Of course, as has often been pointed out by the cases, and as is plainly true from the very reason of the rule, the doctrine of the last clear chance necessarily implies contributory negligence in the plaintiff or the injured party. (Cordiner v. Los Angeles Traction Co., 5 Cal. App. 400, [91 Pac. 436]; Spear v. United Railroads, 16 Cal. App. 655, [117 Pac. 956].) There is no pretense, nor could such a claim well be advanced in this case, that the plaintiff here was guilty of contributory or any negligence.

The irresistible conclusion from the facts of this case as they are alleged in the complaint, and as the appellant admits that the evidence shows them to be, is that the appellant's act was one of the procuring, active, proximate causes of the in

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jury complained of; and that the said act involved a high degree of negligence, there can be no question, since the appellant himself testified that he was at all times aware of the fact that street-cars passed over the tracks upon which he left his automobile standing at frequent intervals during the day.

It follows from the foregoing considerations that the complaint states a cause of action for negligence against the appellant, that the demurrer was, therefore, properly overruled, and that the disallowance of appellant's motion for a nonsuit was proper.

The court charged the jury in accordance with the theory that the appellant's negligence was an active, continuing, and contributing proximate cause of the injury. The charge in this respect is criticised and declared by the appellant to be erroneous. The above discussion and conclusion dispose of this assignment.

There are no other questions in the case requiring notice. The judgment is affirmed.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 22, 1918.

[Civ. No. 2126. Second Appellate District.-February 23, 1918.] BOAZ DUNCAN, Respondent, v. TOM POSTE, INC. (a Corporation), et al., as Trustees, etc., Appellants.

an

ASSIGNMENT-CLAIM FOR RENT-SUFFICIENCY OF EVIDENCE.-In action on an assigned claim for rent due under a lease, the assignment of the claim to the plaintiff by the assignors, who were partners, is sufficiently proven by the testimony of one of the partners that before the commencement of the action he assigned in writing on the back of the lease all of the claims of himself and his partner to all of the rent due from the defendant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Grant Jackson, Judge.

The facts are stated in the opinion of the court.

Fred W. Heatherly, for Appellants.

Valentine & Newby, for Respondent.

THE COURT.-The defendants were indebted to the plaintiff's assignors for delinquent rent due upon a lease of real property. The complaint alleged an assignment of said claim to the plaintiff and this allegation was not denied by the answer; nevertheless the plaintiff at the trial introduced evidence of such assignment.

The only point urged in support of the appeal is under a specification of insufficiency of the evidence to support a finding in favor of the plaintiff based upon this evidence. Appellant insists that as the plaintiff at the trial assumed that evidence of the assignment was necessary, the defendants thereby became entitled to have the case tried as if the assignment had been denied. Assuming for the purposes of the argument that the question was at issue, we nevertheless find in the record ample evidence to support the finding. It is true that the plaintiff, who had lost the written assignment, testified that the words thereof were: "For value, I hereby assign to Boaz Duncan all my right, title and interest to the within lease." Plaintiff's assignors were partners and the assignment was made by one of the partners, L. M. Holman, who testified that before the commencement of this action he assigned in writing on the back of the lease all of the claims of himself and his partner to all of the rent due from the defendant corporation. The defendants other than the corporation were its directors and have become its trustees after the forfeiture of its charter.

It appearing to the court that the appeal is without merit and was made for delay, the judgment is affirmed, and there is added the sum of $50 damages, together with the costs.