railroad car would have been plainly visible if it was anywhere within one thousand feet of the crossing.

The evidence shows that Mr. Martz was fifty-two years old, in good health, and had been using this automobile nearly a year. On the day of the accident he was driving alone. It appears that he had never driven over this railroad crossing until that day. But as above shown, the railroad track at the point of crossing, and a sign-board of warning, were in plain view in front of the deceased as he came down the road. This being so, even if (as we must assume to be the fact) he had not seen any approaching car before coming opposite the white building, it was his duty to approach the crossing with reasonable care to have his automobile under control. If we assume that he did this, then when he came within sixty feet of the southerly railroad track he was in a safe situation at all events. If there was no approaching car within a distance of one thousand feet, he would have ample time to cross. For at the rate of thirty miles per hour the railroad car would require at least twentythree seconds to reach the point of intersection; whereas the automobile, even at a five-mile rate, would be across in eight seconds. On the other hand, if the approaching railway car was anywhere within the distance of one thousand feet, Mr. Martz must have seen it if he made the most ordinary use of his faculties, and this at least he was bound to do. (Griffin v. San Pedro etc. R. R. Co., 170 Cal. 772, [L. R. A. 1916A, 842, 151 Pac. 282].) The rule is applicable to electric railroads operated under conditions similar to the operation of steam railroads. (Loftus v. Pacific Elec. Ry. Co., 166 Cal. 464, [137 Pac. 34].) And if the car thus observed by the deceased was approaching at such speed, and was then within such distance as to cause reasonable apprehension of danger, it was negligence on the part of the automobile driver to attempt such a crossing. Such attempt would be the voluntary assumption of a risk, and for injuries resulting therefrom, and which the defendant then had no further opportunity to avoid, the law does not intend to provide compensation.

The only other alternative state of facts which seems possible under the evidence is that Mr. Martz came down the avenue and into the zone of danger at a rate of speed which was reckless under the circumstances, and thus heedlessly

placed himself where the concurrent negligence of the defendant caused his death. In this case also there is no right of recovery. Where the physical facts shown by undisputed evidence raise the inevitable inference that the person approaching a railroad crossing did not look or listen, or that having looked and listened, he endeavored to cross immediately in front of a rapidly approaching train that is plainly open to his view, he is as matter of law guilty of contributory negligence.

It seems clear that there is no situation shown upon any possible state of facts consistent with the evidence which can authorize a verdict such as was rendered in this case. The defendant was clearly entitled to a verdict in its favor. Having reached this conclusion, we deem it unnecessary to discuss alleged errors in the instructions given to the jury. With respect to the objections urged against those instructions, we express no opinion.

The judgment and order are reversed.

James, J., and Shaw, 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 December 1, 1916.

[Civ. Nos. 1993 and 2017. Second Appellate District.-October 2,

1916.]

MAY CATLIN, Administratrix of the Estate of John Catlin, Deceased, Respondent, v. UNION OIL COMPANY OF CALIFORNIA (a Corporation), Appellant; WILLIAM M. RILEY et al., Respondents.

KEROSENE-PROXI

NEGLIGENCE-EXPLOSION OF GASOLINE-SALE FOR MATE CAUSE. In an action for damages against an oil company and a grocer for the death of a patron of the latter from an explosion of gasoline sold to the deceased by the grocer for kerosene, where it is shown that the oil company in filling an order of the grocer for kerosene had mistakenly made a delivery of kerosene and gasoline mixed, and that the grocer upon discovering such mistake, notified the company thereof and the latter agreed to

take the oil back, but before the oil was taken back the grocer relying upon his experience in dealing in such oils, and upon a personal test made by him, sold the oil which caused the explosion, the direct and proximate cause of the damage was the intervening act of the grocer, and not the negligence of the oil company. ID.-PROXIMATE CAUSE-WHAT CONSTITUTES.-Proximate cause is that cause arising out of a breach of duty which in a natural and continuous sequence produces the damage complained of.

ID.-INTERVENING ACT OF NEGLIGENCE-LIABILITY OF ORIGINAL WRONGDOER.-If the negligent acts of two or more persons, all being culpable and responsible in law for their acts, do not concur in point of time, and the negligence of one only exposes the injured person to risk of injury in case the other should also be negligent, the liability of the person first in fault will depend upon the question whether the negligent act of the other was one which a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably anticipate or not. If such a person could have anticipated that the intervening act of negligence might, in natural and ordinary sequence, follow the original act of negligence, the person first in fault is not released from liability by reason of the intervening negligence of the other. If it could not have been thus anticipated, then the intervening negligent person alone is responsible. ID.-NEGLIGENCE-WHEN QUESTION OF LAW.-While it is true that questions involving alleged negligent action which turn upon the proposition as to what should be expected of an ordinarily reasonable man under the circumstances, present mixed questions of law and fact which generally should go to the jury under proper instructions as to the law, leaving the deductions of fact to be made by the verdict, yet, on the other hand, where the facts are undisputed and clearly settled, and the dictates of common prudence point to only one reasonable conclusion, the question is then one of law for the court, and a verdict may be either directed or a nonsuit granted. ID.-EVIDENCE-CHARACTER OF FLUID-STATEMENTS OF DECEASED-INCOMPETENT TESTIMONY.-Statements made by the deceased immediately after the explosion to the effect that the fluid used was gasoline are inadmissible, being self-serving and expressive of the opinion and conclusion of the witness.

ID.-MANNER OF FILLING LAMP-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.-The question whether the deceased was guilty of contributory negligence at the time of the explosion by reason of the fact that he was engaged in filling an oil-lamp with the fluid, while he had a lighted miner's lamp on his cap, is one for the jury, where there was expert testimony that a lamp could be thus filled with reasonable safety, and without great danger, provided the fluid was coal-oil of ordinary quality.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Willis I. Morrison, Judge.

The facts are stated in the opinion of the court.

Lewis W. Andrews, A. V. Andrews, Thos. O. Toland, Andrews, Toland and Andrews, W. H. Bowers and Cedric E. Johnson, for Appellant.

R. T. Lightfoot, Walter Whitworth, J. W. Whitworth, and E. B. Drake, for Plaintiff and Respondent.

A. G. Alm, for Respondents, William M. Riley et al.

JAMES, J.-This action was brought to recover damages for the death of John Catlin, alleged to have been caused by the negligent acts of the defendant Union Oil Company and William M. Riley. Mary E. Riley, the wife of William M. Riley, was also sued, but the action was dismissed as to her in the course of the trial. The jury returned a verdict in favor of the plaintiff and against the defendant Union Oil Company for the sum of seventeen thousand dollars, on which judgment was entered. By the verdict it was found that William M. Riley was not liable for damages in any The defendant Union Oil Company appealed from the judgment, and from an order denying its motion for a new trial.

sum.

In November, 1912, William M. Riley was conducting a grocery store at the town of Sawtelle in Los Angeles County. Among other classes of merchandise he dealt regularly in fuel oils, including gasoline and kerosene. The oils he stored in a little outbuilding some thirty feet or more away from the store proper. In this outbuilding he had a tank for gasoline and one for coal-oil or kerosene. On about the 15th of November, that being Friday of the week, he gave an order to the Union Oil Company to deliver to him sixty gallons of kerosene. The tank-wagon belonging to the oil company made delivery. The kerosene tank had a capacity of sixty gallons. The tank was not empty, but contained twenty gallons of the fluid before the quantity delivered that day was added to it. Hence, the driver of the oil-wagon was only able to put into the tank forty gallons of the sixty gallons

ordered. There were four or five empty five-gallon cans inside of the oil-room, and into these cans was poured the remaining twenty gallons, which completely filled both the tank and the other receptacles mentioned. Almost immediately after the tank-wagon had left his place, Riley, according to his testimony, took one of the five-gallon cans which had been filled as described, and delivered it to a customer; for another customer, either that evening or the following morning, he drew a gallon from the tank which had been filled; and for a third customer he made delivery of another gallon, evidently from the same supply. Complaint was very soon made by the patron who had received the fivegallon can that there was something the matter with the oil, and complaint also came from one of the persons who had received a single gallon. On Saturday morning, being the next day after the delivery of the oil, Riley got back all of the oil about which complaint had been made that he was able to secure, including the five-gallon can which he had delivered to the first customer. He testified that one of the single gallons of oil returned he poured back into the large tank; that he then had the four five-gallon cans of oil which had been filled by the tank-wagon, and of the contents of these he proceeded to make tests. Riley had for a number of years, both in the east and in California, had experience in the handling of both kerosene and gasoline as a dealer. He testified that in making his tests he dipped splinters of wood into the cans, noted the smell of the fluid, and also the rapidity with which it evaporated from the sticks; that by this means, and also by noting the odor of the fluid, he made up his mind that two of the five-gallon cans contained gasoline and two contained coal-oil; that he made a further test of the fluid in the two cans which he had concluded was gasoline by taking a small quantity thereof and placing it upon a stove where, when it was subjected to heat, it flashed up quickly. He made no further tests of the contents of the other two cans, being satisfied that these cans contained coal-oil. On cross-examination he testified that had the oil been mixed he did not know whether he would have been able to determine from the tests he made if it was gasoline or kerosene. He testified further that he took the two cans which he had determined contained gasoline, labeled them with a label showing their true contents, and placed