ID. AVOIDANCE OF COLLISION-IMMATERIAL FINDING.-In such an action the finding that plaintiff's driver could have turned to either side and avoided the collision was immaterial, inasmuch as plaintiff's driver was clearly negligent in not having his truck under control when approaching the crossing.

APPEAL from a judgment of the Superior Court of Alameda County. Everett J. Brown, Judge.

The facts are stated in the opinion of the court.

B. D. Marx Greene, Greene & Sinclair, and Barry J. Colding, for Appellant.

Snook & Church, for Respondent.

ZOOK, J., pro tem.-This is an action for damages arising out of a collision between plaintiff's motor truck and an interurban train of the defendant, as a result of which plaintiff's truck was badly damaged. The scene of the aceident was at the crossing of Shafter Avenue, over which defendant has a right of way, and Cavour Street, in the city of Oakland. The crossing is at grade and both streets are practically level at that point. There was practically n› conflict of evidence upon the trial, and the facts, briefly stated, are as follows: Plaintiff's driver, who admitted that he was perfectly familiar with the crossing in question and had frequently seen trains of the defendant pass by at that point, was driving a five-ton truck, loaded with rock, westerly along Cavour Street, at the rate of about eight miles per hour, about the maximum speed of the machine when loaded. When about thirty-three feet from the crossing he threw out his clutch, and after he had gone about eight feet farther, he saw defendant's train approaching. He immediately put on both brakes in an endeavor to stop, but was carried by the momentum of the heavy load to a point two feet from the nearest rail of defendant, and within the interference line of the train. He made no endeavor to turn to the right or left along Shafter Avenue, although the court expressly found that by so doing he could easily have avoided the collision. Defendant's motorman testified that he first saw the truck when about three hundred feet from the crossing; he immediately put on the air-brake in order to stop

and let the truck cross ahead of him, and could have brought the train to a standstill before it reached the crossing; but, seeing the truck slowing down, he speeded up the train upon the assumption that the truck would stop in time. When he finally saw that the truck was in danger, he was unable to stop the train in time to avoid a collision. Upon this state of facts, the court found that both plaintiff's driver and defendant's motorman were negligent, and gave judgment in favor of defendant upon the ground of plaintiff's contributory negligence.

Appellant's main contention is that, conceding its own negligence, the case is one for the application of the last clear chance rule, but we are of the opinion that this claim is not well founded. The motorman's negligence, if any, lay in his speeding up the train after having slowed down, and the reason given by him for doing so was his erroneous assumption that the truck would stop before it reached the crossing. He having shown a reasonable degree of care in slowing down but a moment before, when he thought the truck was going to cross, it is only reasonable to accept his statement that he thought any danger was passed when he speeded up again. Under these circumstances, there being no other evidence as to the state of the motorman's mind, the plaintiff has wholly failed to establish one of the principal conditions precedent to the application of the rule in question, namely, actual knowledge on the part of defendant's servant of the perilous position of the truck. Appellant's claim that the last clear chance rule applies where the defendant is in possession of facts from which a reasonable man would infer that plaintiff was in peril, although he may not have actual knowledge of such perii, is based upon a single. sentence contained in the opinion of the supreme court in Arnold v. San Francisco-Oakland Terminal Ry., 175 Cal. 1, [164 Pac. 798]. That the language relied on was inadvertently used in that case is apparent from the recent case of Collins v. Marsh, 176 Cal. 639, [169 Pac. 389], where it is said that "it is well settled in this state that the 'last clear chance' rule does not apply when the defendant was not, but should have been, aware of the plaintiff's danger."

Appellant's only other contention is that the finding of the court that plaintiff's driver could have turned to either. side and avoided the collision is not supported by the evi

dence. Inasmuch as plaintiff's driver was clearly negligent in not having his truck under control when approaching the crossing, this finding is immaterial, and not necessary to support the judgment.

The judgment is affirmed.

Kerrigan, J., and Beasly, J., pro tem., concurred.

[Civ. No. 2151. Second Appellate District.-March 30, 1918.] JENNIE MORTON, Appellant, v. AVIS E. ANGST, as Executrix, etc., Respondent.

WILL-WRITTEN AGREEMENT STATUTE OF FRAUDS.-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.

ID.--ACTION FOR SERVICES-NONRELIANCE UPON PROMISE-FINDING SUPPORTED BY EVIDENCE.-In this action to recover upon a rejected claim against the estate of a deceased person for services alleged to have been rendered to the deceased by plaintiff, it is held the finding that the plaintiff did not render any services in reliance upon any promise of deceased to make plaintiff a beneficiary under her will, and that no contract was ever made to compensate plaintiff for any services rendered, is sustained by the evidence.

APPEAL from a judgment of the Superior Court of Los Angeles County. Paul J. McCormick, Judge.

The facts are stated in the opinion of the court.

Arthur H. Barendt, and Arthur Wright, for Appellant.

Stewart, Weil & Turner, Frank Stewart, and J. W. Howell, for Respondent.

CONREY, P. J.-This is an action to recover upon a rejected claim against the estate of a deceased person. As stated by counsel for appellant, the cause of action is upon a quantum meruit for services alleged to have been rendered to the decedent by the plaintiff, both claim and complaint containing the incidental allegation that the decedent had

promised to provide for plaintiff by will, but had not done so in the will admitted to probate.

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, sec. 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 plaintiff a beneficiary under her will, and 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 one thousand dollars nor any other These findings also are amply supported by the evidence. It does appear that the plaintiff and the decedent

sum.

for many years were intimate friends; that from time to time each of them visited the other; that the plaintiff did perform on behalf of the decedent certain acts of service in relation to shopping, hat-making, letter-writing, etc. They were such acts as one 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.

Works, J., pro tem., and James, J., concurred.

[Civ. No. 2375. First Appellate District.-March 30, 1918.] MARIA MACHADO, Appellant, v. FRANK R. MACHADO, Respondent.

DIVORCE-VALIDITY OF HOMESTEAD-BURDEN OF PROOF.-In an action for divorce in which the validity of the homestead claimed by the wife is attacked, the burden is upon her of showing not only the declaration of the homestead and the recording thereof, but also of showing that she was a resident upon the property at the time the declaration was made and recorded; and where her testimony was the only evidence upon the subject and was conflicting and uncertain, the trial court was justified in finding as true the portion of her testimony which showed that she was not residing upon the property at the time the declaration was made and recorded. ID.-APPEAL FROM JUDGMENT-MOTION FOR NEW TRIAL-MODIFICATION OF JUDGMENT-JURISDICTION.—In an action for divorce, the pendency of an appeal from the judgment does not deprive the trial court on the hearing of a motion for a new trial of jurisdiction to modify the judgment, since proceedings on motion for new trial are independent of the judgment.

APPEAL from a judgment of the Superior Court of Santa Clara County. J. R. Welch, Judge.