It is true, as the authorities declare, "the distinction between agency contracts creating bailments and contracts of sale is not always clear, . . . and in some cases a contract may be construed as creating merely an agency as between the parties where, as between the parties and a third person, it might be given the effect of a sale." (6 Corpus Juris, p. 1091.) There is no question of the rights of third persons involved in the transaction with which we are presently concerned.

After all, however, where the contract is uncertain or not clear as to its purpose and effect, the question whether the transaction of which it purports to be the evidence is a sale or a bailment is to be determined from all the circumstances giving rise to it, and, on conflicting evidence, a question of fact is presented for the jury's determination. (6 Corpus Juris, p. 1087.)

But counsel for the plaintiff contend that the "terms of selling these goods were to be determined by the defendant, and that he agreed to pay a fixed price for the goods," and declare that therefore the case here comes within the rule that where the consignee or factor is to sell upon terms fixed by himself, and is bound to pay to the consignor a fixed price, the contract is one of sale. (21 Am. & Eng. Ency. of Law, p. 520.) The contract here, however, expressly provides, as will be observed from a perusal of it, that the "second party agrees that they will not sell any of said protectors at less than the established list prices attached herewith, marked Exhibit A, when selling to the consumer, nor allow any of their sub-agents to violate this agreement." Thus it is plainly manifest that the defendants were not at liberty under the contract to fix their own minimum prices in selling the goods, but were to be governed in that respect entirely by the prices fixed by the consignor-the plaintiff itself.

We have neither been shown nor found a substantial reason for declaring that the trial court's construction of the contract is erroneous, and the judgment and the order are accordingly affirmed.

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

[Civ. No. 1570. Third Appellate District.-September 28, 1916.] J. H. THOMPSON, Respondent, v. SOUTHERN PACIFIC COMPANY et al., Defendants; SOUTHERN PACIFIC COMPANY, Appellant.

NEGLIGENCE-COLLISION AT RAILROAD CROSSING OBSTRUCTIONS-FAILURE TO STOP AND LISTEN-CONTRIBUTORY NEGLIGENCE.-In an action for damages for personal injuries received from a collision between an automobile driven by the plaintiff and a freight train of the defendant at a grade crossing on a public highway, the plaintiff is guilty of such contributory negligence as to preclude recovery, where it is shown by his own testimony that the view of approaching trains at the place of the accident was obstructed by a dense growth of sunflowers and weeds, which was well known to the plaintiff, and that he did not, upon approaching the crossing and while within the lines of the right of way of the railroad company, stop his machine, or look or listen for an approaching train. ID.-OBSTRUCTED VIEW AT CROSSINGS-DUTY OF TRAVELERS.-While it is true that the rule requiring the traveler to stop at railroad crossings and look and listen for approaching trains is not an absolute one, yet if the view is obstructed he must place himself in a position where he can use his faculties of observation to advantage. ID.-LACK OF NEGLIGENCE OF TRAIN OPERATIVES-RIGHT TO ASSUMEERRONEOUS INSTRUCTION.—An instruction advising the jury that the plaintiff had the right to assume that the defendant's employees would observe the law requiring them to ring the bell and sound the whistle when approaching the crossing is erroneous. ID.-ACTION AGAINST RAILROAD COMPANY AND TRAIN OPERATIVES,

JUDGMENT EXONERATING AGENTS-ACQUITTAL OF COMPANY.-In such an action, where recovery is sought against the railroad company and its servants, based upon the acts of the latter in running the train at a high rate of speed without sounding any warning of its approach, an acquittal of the latter of negligence is an acquittal of the company.

APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. W. B. Wallace, Judge.

The facts are stated in the opinion of the court.

Power & McFadzean, for Appellant.

Alfred Daggett, Lamberson, Burke & Lamberson, and J. A. Chase, for Respondent.

BURNETT, J.-It is conceded by respondent that appellant has made a fair statement of the facts and we may, therefore, substantially adopt the same. The action is for personal injuries to plaintiff, resulting from a collision between an automobile driven by him and a freight train of appellant. The collision occurred July 18, 1912, about 4 o'clock P. M., at a grade crossing of a public highway. The crossing is located about one mile south of Dinuba, in the county of Tulare, and the train was, at the time of the accident, in charge of defendant Keith, as engineer, and defendant Rhone, as conductor. Defendant Waller was the fireman. Appellant and its trainmen were jointly charged with negligence.

The amended complaint in substance alleges that bordering the public highway on which the accident occurred on the south, and adjoining the railroad right of way on the west, there was at the time of the accident, and for a long time prior thereto had been, an orchard belonging to one Weddle; that the defendants had negligently permitted to grow up and mature on said right of way where the same crosses the public highway a dense growth of sunflowers and weeds; that the vegetation had grown to such height that a person traveling in a vehicle in an easterly direction along the highway across the railroad right of way could not see the railroad track or a locomotive engine or a train of cars upon it for any distance when looking in a southeasterly direction, until he reached a point near and almost immediately upon the railroad track; that the train of cars which collided with plaintiff's automobile was traveling upon its track from the southeast to the northwest; that at the time of the accident, the plaintiff, who was traveling along said highway in an easterly direction, brought his machine down to a slow gait at a point about one hundred and twenty yards west of the crossing, moved slowly toward the crossing, and looked for an approaching train; that because of the presence of the fruit trees in the Weddle orchard, and the sunflowers and weeds on appellant's right of way, he did not see any engine or cars on the track until he was practically upon the track; that before he got near the track he listened, but could not hear any train approaching the crossing; that when he reached the crossing, defendant and appellant, which was operating the train by and through its codefendants,

Keith, Waller, and Rhone, at a high rate of speed and in a careless, reckless, and negligent manner, ran into said automobile and seriously injured plaintiff.

It is alleged that the defendants Keith, Waller, and Rhone did not have control over the train; that they omitted to ring any bell, sound any whistle, or give any warning whatever as the train approached the crossing; that if defendants had sounded the whistle at a distance of eighty rods from the crossing, and had continued to ring the bell or sound the whistle from that point until they reached the crossing, the plaintiff would have known of the approach of the train, and would not have gone upon the track and been injured.

The answer denied all the allegations of the complaint except those in reference to the corporate capacity of appellant and the existence of said orchard, and affirmatively alleged that the train was carefully and properly run; that plaintiff was driving his automobile at a speed of about thirty miles per hour; that the whistle was blown and the bell sounded; that plaintiff, as he approached the crossing, did not look or listen for an approaching train; that if he had done so, he would have known that the train was approaching the crossing, and that he was guilty of contributory negligence which directly and proximately caused the injuries. The jury rendered a verdict in favor of plaintiff against the Southern Pacific Company for $17,946.55, but against plaintiff as to said trainmen, Keith, Waller, and Rhone.

It appears that plaintiff, in company with one West Lee, left Dinuba about 4 o'clock in the afternoon of the day of the accident. In leaving the town they crossed the railroad approximately one-half or three-fourths of a mile northwest of the crossing where the accident happened, and proceeded in a southerly direction until they came to a county road leading in an easterly direction toward the railway. They traveled along this roadway and in an easterly direction until the automobile collided with the train. As they crossed the railway in leaving the town of Dinuba the witness Lee looked down along the railroad track in a southeasterly direction toward the town of Monson and saw the smoke of a train beyond the crossing at which the accident occurred. Lee and the plaintiff say that there was a rough place in the county road upon which they were traveling, about one hun

dred and fifty yards west of the crossing, near a stone culvert, and that plaintiff brought his automobile down to a slow gait and thereafter moved slowly toward the railroad crossing. They and their witnesses testified that there was one row of tall sunflowers extending along the south side of the county road and into the railroad right of way, to within a few feet of the railroad track, and that there was another row of tall sunflowers extending southeasterly from the south side of the county road along the fence which separates the railroad right of way from the Weddle orchard. Lee's estimate of the height of these sunflowers was six or seven feet.

The westerly or southwesterly boundary of the railroad right of way from the center line of the railroad track, measured along the center line of the highway, is about seventy feet. Plaintiff testified that as he approached the crossing he looked in a southeasterly direction, and that he listened for the purpose of ascertaining whether or not there was a train approaching the crossing, but that he did not see or hear one.

As to his knowledge of conditions at the crossing, he testified as follows: "I knew that trains were passing up and down the road frequently and I was somewhat familiar with the road. I do not know how often I have been over that road, but I believe I had been over it once that day, and I had had occasion to be over it many times previous to that time, but I went usually another way and didn't go over this crossing. I noticed the sunflowers, or other weeds or wild oats there about ten days before the accident. At that time I particularly noticed the sunflowers and wild oats, and this other vegetation, and that is the reason I approached as cautiously as I could, and I knew they were there on the occasion of making this approach to the railroad track on the eighteenth day of July."

As to his automobile, he testified: "My automobile was in good condition and repair, both as to brakes and otherwise, and I could stop it within a distance of three or four feet by applying the brakes. I could have stopped it by the emergency brake, or the foot brake, or by shifting my gearing across to the other side of the disc. I could have set it back so that it would not have moved a foot after that."

As to his conduct while within the railroad's right of way, he was asked this question: "Now, when you were approaching the crossing, and while you were within the lines of the