I hadn't quite reached the mail car until the other train came and struck me. There was no noise of the train or any indication of the train coming. I never knew it was there until it was right on to me. I knew as soon as I struck the ground where I was. There was a string of box cars loading at the platform that came up almost to the door, and besides that there was two or three baggage trucks, loaded with trunks and sample cases that obstructed the view to the south. I couldn't see beyond the trucks at all. I was fifty or seventy feet north of the trucks. The train that struck me neither whistled nor rang a bell." Witness also said that he was 20 or 25 feet north of the south line of Sycamore street, northeast of the station when the accident occurred. The direction taken by him from the time he dismounted from the bicycle until he was struck was northeast. The baggage trucks, so plaintiff testified, were half way between the "house track" and the main line track. Each was three and a half feet wide by ten or twelve feet long. They were loaded with baggage so that it was six or seven feet from the ground to the top of each load. Mr. Chrissinger is five feet nine inches in height. He testified that in his opinion a car or engine is about twelve feet in height from the ground. The baggage trucks were north of the box cars at the loading platform, the north end of the northerly truck being about even with the door of the waiting room, which is about twenty-two feet from the north end of the station. Mr. Corbett, another witness, located these trucks at about the same place in which plaintiff said they were situated. He said: "These trucks were standing end to end lengthwise of the track north and south." The plaintiff gave another estimate of the locations of the two trucks, stating that one of them stood quartering, the northeast corner of it being a little in front of the box car and the southwest corner perhaps a foot or a foot and a half from the east rail of the "house track", while of the other truck he testified: "Truck No. 2 was almost all of it east of truck No. 1. I cannot tell you at all whether two-thirds or three-fourths of it or all of it was east of truck No. 1. I can't tell exactly the situation now. I have given it as well as I know how." Continuing, he said: "When I got to the house track I stopped and looked around, like I usually do when crossing the railroad. I couldn't say the exact place, or whether I had got past the house track, was about the time I crossed that track, then I looked again.

Q. The box car was still in your way?

A. Yes, sir.

Q. And the trucks were still in your way?

A. Yes, sir.

Q. You could not see anything, then?

A. No, sir."

We will not discuss the testimony of the other witnesses, as the plaintiff's own version of the accident was quite as favorable to his side of the case as that of any other witness.

[1] The evidence fully justified the court's action in granting the motion for nonsuit. When plaintiff stopped at the northeast

corner of the depot, looking south he could see the box cars, and the baggage trucks "and a little farther off the engine of the other train". When he had crossed the "house track" on his way to the mail car he saw the same things. As the engine of the south bound train was south of the box cars and trucks and east of the main line, either he could look over the trucks or between the trucks and the box cars to the engine on the side track. If the trucks were standing in front of and north of the box cars they did not obstruct his view because he saw the engine of the south bound train over them. If they were located "about the middle of the space between the first and second tracks" or as witness Corbett said, "about six feet west of the main line, standing parallel with the track", then he had a clear view of the main line between the box cars and the trucks, and as the track was straight he might have seen an approaching train for a distance of many hundreds of feet. If the trucks were located partly in front of the box cars near the house track he had ample space between them and the main track to observe the approaching engine if he had looked. Respondents' counsel argues that, assuming the trucks with their loads to be seven feet high, the engine of the north bound train twelve feet high (these are plaintiff's own figures) and plaintiff's eyes five feet five inches from the ground (he being five feet nine inches in height) and placing plaintiff forty feet from the trucks he could have seen the engine 166 feet away as he looked over the top of the trucks, at fifty feet he could have seen the engine 208 feet away, and at sixty feet he could have seen it 291 feet away. We think these deductions are not only logical but inevitable from the testimony in the case, if we assume that the trucks would be directly in line between plaintiff and the north bound train. In any view of the testimony we are forced to conclude that had plaintiff used the slightest care the accident would not have happened. True it is that we have his own statement that he looked and listened but did not see or hear the approaching train, but where, as here, the established facts and conditions make it plain that, by looking and listening he must have observed the approach of the train, his testimony that he looked and listened but did not see or hear is not enough to support a verdict in his favor. (Zibbell V. Southern Pacific Co., 160 Cal. 241.)

[2] A person approaching a railway track, which is itself a warning of danger, must take advantage of every reasonable opportunity to look and listen. [3] Undoubtedly the question of contributory negligence or freedom from it is ordinarily one for the jury, but where, as here, the standard of conduct is so obvious as to be applicable to all persons, and the plaintiff has failed to measure up to that standard under the circumstances shown, he is not entitled to have his case go to the jury. (Hamlin v. Pacific Electric Co., 150 Cal. 779.)

The judgment and order are affirmed.

We concur:

LORIGAN, J.

HENSHAW, J.

MELVIN, J.

L. A. No. 3249. Department Two. March 16, 1915.

In the Matter of the Estate of FLORENCE E. CHASE, Deceased. PAUL STEWART, Appellant, v. ERNEST W. CHASE, MABEL K. CHASE and NEELIE H. CHASE, Respondents.

[1] PROBATE LAW-PROBATE OF FOREIGN WILL-CONTEST-ESTOPPEL BY JUDGMENT APPLICABILITY OF PRINCIPLE.-While it is true that in terms our code does not say that an estoppel by judgment may be pleaded as a ground of contest against the offer of probate of a foreign will, and while it is also true that it specifies the general grounds of contest, nevertheless the principles of res adjudicata and estoppel by judgment are applicable in such a contest, and it is held herein that the injunctive judgment obtained against the offering of the foreign will in question for probate, was conclusive upon the proponent of such will.

Appeal from the Superior Court of Los Angeles County-James C. Rives, Judge.

For Appellant-T. M. Stewart.

For Respondents-Waldo M. York and Enyeart & Holton.

There was offered for probate in the superior court of the county of Los Angeles a foreign will of Florence E. Chase, deceased, which will, it was averred, had been duly admitted to probate in the probate court of the county of Penobscot, state of Maine, of which state it was also alleged Florence E. Chase was a resident at the time of her death. Elinor A. Chase Stevens was the sole devisee and beneficiary under this will. The petitioner for the probate thereof, Paul Stewart, asserts an interest in the will through assignment from Elinor A. Chase Stevens.

This offer was met by a contest instituted by the beneficiaries under the will of Horace W. Chase, deceased, who in his lifetime had been a brother of Florence E. Chase, deceased. In their contest they alleged that another will of Florence E. Chase, deceased, had been duly admitted to probate in the superior court of Los Angeles county; that by this will the property left by Florence E. Chase was to be disposed of precisely as was the property of her brother Horace W. Chase; that they were beneficiaries under the will of Horace W. Chase, deceased, and thus interested in the will of Florence E Chase; that to this will a contest had been instituted by Elinor A. Chase Stevens and Paul Stewart, and that their contest had been dismissed. In this contest Elinor A. Chase Stevens and Paul Stewart offered for probate this foreign will of Florence E. Chase. Further, the contestants pleaded an injunctive judgment obtained by them in an action prosecuted against Elinor A. Chase Stevens and Paul Stewart by which judgment Elinor A. Chase Stevens "and all her counselors, attorneys, solicitors and agents and all others acting in aid or assistance of her, were required to absolutely desist and refrain from presenting for probate in this superior court the said alleged will of Florence E. Chase, deceased, purporting to be dated February 17, 1912, and alleged to have been admitted to probate in the probate court of the county of Penobscot, state of Maine, on the 29th day of May, 1912, and also were required to absolutely desist and refrain from in any way contesting the will or said Florence E. Chase, deceased, heretofore admitted to probate in this superior

court on the 24th day of May, 1912; that the said judgment of said court was duly entered in said court in March, 1913; that thereafter, after the entry of said judgment against said Elinor A. Chase Stevens, she moved said court to vacate and set aside the said judgment, which said motion was denied by said court, and the said judgment against the said Elinor A. Chase Stevens, and the said order denying the same have become final and no appeal has been taken therefrom". The order of the court in probate dismissing the contest of Elinor A. Chase Stevens and Paul Stewart, seeking a revocation of the probate of the will of Florence E. Chase, was made after and in pursuance of this judgment.

To all of these matters so pleaded as grounds of contest to the probate of the foreign will of Florence E. Chase, so proffered for probate in California by Paul Stewart, Paul Stewart demurred, and his demurrer having been overruled he declined to answer. Upon this state of the record, after the making of voluminous findings in accordance with the allegations above set forth, the trial court decreed the probate of the will of Florence E. Chase, deceased, to be irrevocable and conclusive, and denied the application of Paul Stewart for the probate of the foreign will.

The attitude of appellant in standing upon his demurrer without answer is, of course, in legal effect, an admission of the truth of all the allegations well pleaded in the contest. Thus, it stands admitted that he has acquired his interest in the estate of Florence E. Chase, deceased, through assignment from Elinor A. Chase Stevens, sole beneficiary under the foreign will, and that he took this assignment subject to the injunction above set forth. Indeed, appellant does not question this, but founds his right to a probate of the will upon the proposition that the so-called contest is not a contest at all; that the injunctive judgment does not raise an estoppel against him, and that the sole question with which the court will deal under his offer of probate is whether the instrument under investigation is the legally valid, free act of a competent testatrix, and upon this he argues that, as it has been so decreed by virtue of its admission to probate in the courts of Maine, it must be so held here, under the provisions of article IV, section 1, Constitution of the United States, requiring that full faith and credit shall be given in each state to the judicial proceedings of every other state.

[1] Appellant's position, however, is a mistaken one. True it is that in terms our code does not say that an estoppel by judg ment may be pleaded as a ground of contest against the offer of probate of a foreign will, and true it is also that it specifies the general grounds of contest. But it would be beyond reason to hold that in the enumeration of these specific grounds of contest the law meant to declare that the principles of res judicata and estoppel by judgment were inapplicable in such a contest. By solemn and final decree equity has forbidden this appellant from doing the precise thing which he undertakes to do. It would verge upon the absurd to hold that the court, before which he seeks to do this thing, must disregard that decree when formally

presented for its consideration. (Marco v. Low, 55 Maine 553; Moors v. Landenburg, 178 Mass. 272.) Whatever informalities or irregularities may have attached to the original judgment for lack of due service upon Elinor A. Chase Stevens, it appears and is found that she subsequently came into the courts of California to cause that judgment to be reviewed and set aside. Her application was denied; her right to appeal is gone; and unquestionably that judgment is now final and binding. (Lake v. Bonynge, 161 Cal. 120.)

The judgment appealed from is therefore affirmed.

We concur:
LORIGAN, J.
MELVIN, J.

HENSHAW, J.

S. F. No. 6798. In Bank. March 18, 1915.

*JOSEPH FEARON, Plaintiff and Respondent, V. ANTONIO FODERA et al., Defendants; T. C. TOGNAZZINI and SWISS AMERICAN BANK, Defendants and Appellants.

Appeal from the Superior Court of Fresno County-George E. Church, Judge.

For Appellants-Lilienthal, McKinstry & Raymond.

For Respondent-W. H. H. Hart; Devoto, Richardson & Devoto; T. C. Van Ness Jr.; Ira S. Lillick.

BY THE COURT.

The judgment heretofore given by this court on February 16, 1915, is hereby modified to read as follows:

"The motion to dismiss the appeal is denied. The judgment, in so far as it purports to assess damages against the defendants, Tognazzini and the Swiss American Bank, is reversed. The order denying the motion of said defendants for a new trial is affirmed as to all issues relative to the title to the land described in the complaint, and in all other respects is reversed."

S. F. No. 7001. In Bank. March 18, 1915.

KERNAN ROBSON, Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO et al., Respondents.

[1] MORTGAGE ASSUMPTION BY SUCCESSIVE GRANTEES-ACTION FOR FORECLOSURE-DENIAL OF NEW TRIAL TO INTERMEDIATE GRANTEE SUBSEQUENT VACATION OF ORDER-ALLEGED LACK OF JURISDICTION— RIGHT OF ATTACK BY PRIOR GRANTEE PROHIBITION.-A grantee of mortgaged premises who has assumed the payment of the mortgage debt and against whom a personal judgment has been rendered in the action foreclosing the mortgage is beneficially interested in a proceeding for a new trial taken in such action by one of several subsequent grantees, who likewise assumed such payment, and such grantee has the right to maintain a proceeding in prohibition to restrain the trial court from retrying the issues in so far as they affect him based on the ground that the court was without juris(*49 Cal. Dec. 214.)