presumption had been overcome. Conceding that the presumption did not apply to the other notes, the question was as to whether there was sufficient evidence to indicate that the other property had always been the separate property of Bridget O'Neill, or whether a gift of it had been made to her by the husband. The fact that these notes were made to the wife, with the incidental mortgages, is certainly to be taken as some evidence tending to show a gift by the husband. We cannot, as counsel seem to suggest we should, assume that these mortgages may have been taken without the knowledge of the husband, for it was necessary for the husband to make a deed of the property to the grantees, and the court would be altogether justified in inferring that he knew of the mortgages being made in the name of the other spouse, even though there was no evidence indicating such knowledge. But there was evidence to indicate that the husband intended that the wife should have this property as her separate estate. A neighbor of the O'Neills living at Pomona, testified that in conversation with the husband the latter referred to some real estate at San Bernardino which Mrs. O'Neill was about to purchase, and that O'Neill "just told me that mother had bought a piece of ten acres down there." This witness further testified that he sold feed for a cow and horse to the O'Neills and that Mrs. O'Neill always paid him; that at one time he owed O'Neill money and there being money owing for feed, he thought to equalize accounts, but O'Neill said: "No; you pay me and mother will pay for the feed." Fred O'Neill, a son, testified that prior to his father's death he visited him at Pomona, at a time when the last piece of property which had theretofore stood in the name of the father had been sold, and talked with the father; that the father said to him: "It is all right now. The property has all been disposed of and mother owns it all." Katherine Hale, a daughter, testified that on one occasion she remembered her mother bringing home a mortgage (it being the Rust mortgage) and that her father examined it and, after he had read it, said: "Everything is all right now." There was other testimony of a similar character to that narrated, but we think that enough has been stated to illustrate the fact that the court was not without warrant in concluding that the promissory notes and mortgages were the separate

property of Bridget O'Neill. The circumstances would justify such a conclusion. Assuming that the husband's earnings as a part of the community estate made up a portion of the purchase price of the real property, it was most natural that in the latter years of his life, being afflicted with an incurable disease which was progressing toward a fatal termination, he should desire that the wife should. have the results of the hard-earned capital which they had produced by their joint efforts. We do not think it necessary that he should in terms and formally declare that he presented his interest in the property to the wife. Circumstances, consisting of conduct, words, and such admissions as were testified to, would be sufficient to establish the fact of a gift. We are leaving out of account, of course, testimony introduced on behalf of defendants in contradiction of that produced for the plaintiff, because it is wholly immaterial in view of the restrictions upon this court's duty in examining the appeal. It seems unnecessary, in view of the fact that the only question under consideration relates to the sufficiency of the evidence, to review any of the authorities cited. As to the real property, deeds to which were originally taken in the name of Bridget O'Neill, the presumption under the section cited that the spouse taking it took it as her separate estate, applied unless overcome by testimony for the defendant. Concerning the other notes and mortgages, as we have before stated, the fact that they were taken in the name of the wife (even though the presumption allowed by the section did not apply) afforded some evidence, not sufficient perhaps by itself, tending to show that the wife had acquired the same as her own. Aided by the other facts and circumstances shown in evidence, a sufficient case can easily be made out.

For the reasons given the order appealed from is affirmed.

Conrey, P. J., and Shaw, J., concurred.

[Civ. No. 2853. First Appellate District, Division One.-July 26, 1919.] PEHR TRULSSON, Appellant, v. SOUTHERN PACIFIC COMPANY (a Corporation), Respondent.

[1] NEGLIGENCE-ACTION FOR DAMAGES-PERSONAL INJURIES TO RAILROAD PASSENGER-CONTRIBUTORY NEGLIGENCE.-A railroad company is not liable for damages for personal injuries sustained by a passenger from being struck by one of the company's trains while crossing the tracks in the switch-yards of the company, where he had been permitted by the conductor to alight from a train that did not stop at that point but which he had taken by mistake, notwithstanding the train that struck him gave no warning of its approach, where such passenger, instead of taking a smooth and traveled pathway along the side of the track leading from the point where he alighted to the station, proceeded obliquely across the rough ground and raised rails of the defendant's switch-yards toward the street without using proper vigilance.

[2] ID. EXIT FROM CARRIER'S PREMISES-DUTY OF PASSENGER TO USE ORDINARY CARE.-The fact that a carrier may owe to its passengers the highest degree of care in safeguarding their exit from the carrier's premises after leaving its trains does not absolve a passenger from the duty of himself using ordinary care under the circumstances attending his departure from the carrier's train and grounds.

[3] ID. CONTRIBUTORY NEGLIGENCE RAILROAD TRACK AS SIGN OF DANGER. In this action for damages for personal injuries, the plaintiff was clearly guilty of such negligence as a matter of law as to prevent his recovery. A railroad track upon which trains are constantly run is itself a warning to any person who has reached years of discretion and who is possessed of ordinary intelligence that it is not safe to walk upon it, or near enough to it to be struck by a passing train, without the exercise of constant vigilance in order to be made aware of the approach of a locomotive, and thus be enabled to avoid receiving injury; and the failure of such a person so situated with reference to the railroad track to exercise such care and watchfulness, and to make use of all his senses, in order to avoid the danger incident to such situation, is negli gence per se.

1. Crossing intermediate track between train and station as contributory negligence of passenger, note, 14 Ann. Cas. 24.

Duty of passenger embarking or disembarking at station to stop, lock, and listen before crossing track adjacent to train, notes, 13 L. R. A. (N. S.) 621; 27 L. R. A. (N. S.) 128.

APPEAL from a judgment of the Superior Court of Santa Clara County. P. F. Gosbey, Judge. Affirmed.

The facts are stated in the opinion of the court.

John D. Willard and E. A. Douthitt for Appellant.

Louis Oneal, James P. Sex and Roy G. Hildebrand for Respondent.

RICHARDS, J.-This is an appeal from a judgment in the defendant's favor after the granting of a motion for nonsuit at the close of the plaintiff's case.

The action was one to recover damages for injuries sustained by the plaintiff through the alleged negligence of the defendant. The facts of the case are these: The plaintiff, who at the time of the injuries complained of was, and for a period of between two and three years prior thereto had been, a resident of Palo Alto, had, on the thirteenth day of March, 1917, purchased a commutation-ticket book which entitled him to a first-class daily passage upon the trains of the defendant to San Francisco and return. Thereafter and up to the 21st of March, 1917, the plaintiff had made six trips between said points upon his commutation-book. On the last-named date, at about 4 o'clock P. M., the plaintiff presented himself as a passenger at the San Francisco depot of the defendant and exhibited his book to the gatekeeper at one of the then open gateways which were there maintained leading to outgoing trains. The gatekeeper admitted him and the plaintiff boarded a train then loading with passengers, and apparently about to start on the way to his desired destination. The train presently started, the conductor began his round collecting tickets, the plaintiff presented to him his book, from which the conductor took one of the tickets representing that day's trip without comment, and returned the book. The plaintiff presently noticed that the train was not stopping at stations to take on or discharge passengers, and inquired of a brakeman the reason thereof, by whom he was then informed that the first stop of that particular train was at San Jose, which was about twenty miles beyond Palo Alto. Plaintiff thereupon demanded that the train be stopped at the Palo Alto Station and that he be let off there. The brakeman referred him

to the conductor, upon whom he made the same demand. The conductor refused to stop the train at the passenger depot at Palo Alto for the reason that the train, being a through train, was not scheduled to stop at Palo Alto. The plaintiff's commutation-book of tickets contained the following provision: "It is hereby understood that if this book is used on a train that does not stop at destination of coupons the holder will detrain at some point short of destination of coupons, or, if he elects to travel beyond such destination, he will pay conductor ticket fare from such destination to point at which he detrains." The plaintiff, however, still insisting upon being let off at the Palo Alto Station, the conductor finally consented to stop the train in the switch and freight yards, about one thousand two hundred feet beyond the regular station at Palo Alto, and allow the passenger to alight there. This he did; and the plaintiff, going at the conductor's request to the rear platform of the train, alighted on the west side of the train, which immediately moved off. The place where the plaintiff thus left the train was about fifty yards south of Forest Avenue at the point where it crosses the defendant's tracks. There was a smooth and traveled pathway leading along the side of the track from the point where the plaintiff alighted back to the Palo Alto Station, but otherwise the ground within the switch-yards was graveled and rough, and the rails stood their width above the ties so as to render walking across the tracks difficult. There is some question as to whether the plaintiff noticed the traveled walk leading back to the station but whether or not he did so he did not wish to go that way, but rather to cross obliquely to the east side of the several tracks of the defendant in order to reach Forest Avenue at that point on his way to his home, which was to the eastward of the point where he had alighted from the train. While so proceeding obliquely across the rough ground and raised rails of the defendant's switch-yards he was struck by a north-bound train of the defendant coming swiftly upon an adjacent track to that on which the former train was departing, without giving warning of its approach. For the injuries thus inflicted he brought this action.

[1] The plaintiff's first contention upon this appeal is that he was a passenger of the defendant while upon its