the tracks while the electric car at twenty miles per hour covered one hundred feet of the intervening space. Of course, there can be no such mathematical accuracy of calculation in such a case, but this estimate would still leave another hundred feet as a margin of safety. They took the chances. Was it negligence, as a matter of law? Or was the jury entitled to determine the question of negligence as one of fact, in view of the conditions shown by the testimony?

[1] The fact that one voluntarily assumes a certain degree of risk is not conclusive of negligence. In these days of rapid transit and congested traffic, every man who crosses a busy street, or drives an automobile, takes chances, and serious ones. The question is, Are they greater than is reasonably necessary to meet the ordinary requirements of business, or even pleasure? Where the precise facts under consideration are such as to give rise to an honest difference of opinion between intelligent men, the question is one for the jury. We think this is such a case.

[2] If the jury accepted the testimony of the witnesses for plaintiff, as they fairly could, it is evident that the clement of miscalculation on the part of the men on the autotruck was in underestimating the speed of the approaching electric car when they determined to pass in front of it. To what extent were they entitled to rely upon the presumption that the railway company's servants were observing the speed limits, in justification for their mistake? Clearly not to the extent of shutting their eyes and crossing blindly in front of a moving car. But these men did not do that. They used their eyes and exercised their judgment, and thought that the rate of speed was reasonable, and, in view of the distance to be traveled by the electric car, would permit them to cross in safety. This would have been the result if the defendant's car had been traveling within the limits prescribed by law. Under these circumstances we think the jury would be justified in concluding that the men on the truck supplemented their own judgment of the speed of the electric car with the presumption that the law was being obeyed. This they had a right to do. Although, as already stated, one may not willfully close his eyes to danger on the assumption that another will act with care and prudence

42 Cal. App.-37

and in observance of the law, yet he cannot be deemed negligent when, if a reasonable use of his faculties does not warn him to the contrary, he rests on such assumption. (Harris v. Johnson, 174 Cal. 55, [Ann. Cas. 1918E, 560, L. R. A. 1917C, 477, 161 Pac. 1155]; Mann v. Scott, 180 Cal. 550, [182 Pac. 281]; Medlin v. Spazier, 23 Cal. App. 242, [137 Pac. 1078].)

[3] Appellant's second assignment of error is that the jury disregarded the instructions of the court. We fail to understand how it is made to appear in this case that the jury disregarded any of the instructions of the court in arriving at its verdict. The instructions did not direct a verdict for the defendant, but left the way open for a verdict for either the one or the other of the parties, according as the jury found upon certain ultimate facts. It is only in the event that the evidence does not support the verdict that we can say that the instructions were not followed.

No useful purpose would be served by discussing all of appellant's exceptions to the rulings of the court in granting and refusing instructions. We are satisfied that the instructions fairly covered all the matters necessary to a correct understanding by the jury of the law of the case. Some of the instructions refused correctly stated the law, but upon points sufficiently covered by the instructions given. It was, for instance, sufficiently pointed out that Makley owed a duty to look out for himself in crossing the car tracks, and might not blindly rely on the driver; and that neither of them could shut their eyes to the dangers from approaching cars, and rest secure in the assumption that the electric cars would approach the crossings in a careful and prudent manner. There was no necessity for the instructions offered and refused relating to the effect of negligence of the Commonwealth Bonding Company and the Los Angeles Daily Express on the right of plaintiff to recover, from the fact that their only connection with the events of the accident was through the agency of the men in charge of the motortruck; and it was sufficiently pointed out that contributory negligence on their part would defeat a recovery by plaintiff. [4] We think, also, that the instruction as to the "last clear chance" was not out of place. It might have appeared to the jury, under the evidence, that the occupants of the truck were at fault in attempting to cross the tracks in front of the ap

proaching car, but that after they had placed themselves in a position of danger, which was discovered by them too late to extricate themselves, the defendant, having knowledge of their dangerous situation, might, by the exercise of diligence, still have avoided the accident. It may well be that a motorman, with a better knowledge of the rate of speed at which his car is traveling, may discover the imminent danger of persons attempting to cross the track before they themselves become aware of it; and in such a case, notwithstanding their careless disregard of danger, if he had time to stop or slow up his car, his would be the last clear chance.

[5] We think instructions 11 and 12 correctly stated the law, in declaring that "it cannot be said that a person is guilty of contributory negligence merely because he attempts to cross a street railway when a car is approaching"; that "all that is required on a given occasion of a driver of a vehicle in attempting to use a street railway crossing is to exercise ordinary care of his sense of sight and hearing to observe coming cars"; and that it is not negligence to attempt to cross in front of an approaching street-car "if it is at such a distance away that an ordinarily prudent person would believe he could make such crossing in safety, although it may afterward appear by evidence that a different course of conduct would have been safer on his part." Counsel for appellant, while admitting the correctness of these instructions as applied to street crossings where the speed limit is from four to eight miles an hour, claims that the rule should not apply in localities where the allowed speed is twenty miles an hour. We do not see the force of the distinction. There are, ordinarily, on many lines of street railway, where a speed of twenty miles per hour is permitted, cars passing at such frequent intervals that it is rarely that a car is not approaching a given crossing. It is, of course, in such localities incumbent on one attempting to cross the tracks to take into account this greater rate of speed in determining how far in advance of an approaching car he can prudently attempt to pass. But to say he is guilty of negligence in attempting to cross at all in front. of an approaching car, would place an intolerable burden and hardship on the traveler by team or automobile. We think the doctrine of Clark v. Bennett, 123 Cal. 275, [55 Pac. 908], Scott v. San Bernardino Traction Co., 152 Cal. 610,

[93 Pac. 677], and Campbell v. Los Angeles Traction Co., 137 Cal. 565, [70 Pac. 624], applies to crossings located as was the one under consideration here, as well as to crossings where a slower rate of speed is prescribed, subject to the qualification as to a prudent determination as to the distance of the car to correspond with the different rates of speed. The judgment is affirmed.

Finlayson, P. J., and Thomas, J., concurred.

[Civ. No. 2931. Second Appellate District, Division Two.-August 8, 1919.]

FRED A. KRENWINKEL et al., Respondents, v. JANE LOUISE HENNE et al., Appellants.

[1] MECHANICS' LIENS-ACTION TO FORECLOSE-VARIANCE-FAILURE TO DENY ALLEGATIONS-ESTOPPEL.-Where the defendants in an action to foreclose a mechanic's lien fail to answer and thus put in issue all the material allegations of the complaint, particularly those which set forth the contents of the liens, they are estopped to raise the question of variance between the claim of lien and the proof.

[2] ID. CLAIM OF LIEN-STATEMENT OF PRICE-REASONABLE VALUE.Under section 1187 of the Code of Civil Procedure, as amended in 1911, a claim of lien is not required, as before such amendment, to state "the terms, time given and conditions of his contract," but only "the price, if any, agreed upon for the same, and when payable." In the absence of any particular agreement the law fixes the compensation at the reasonable value thereof, and when the lien claimants state in their lien claims that the price agreed upon was a certain definite amount and that this was the reasonable value of such services, they are stating the facts correctly. [3] ID.-FAILURE TO FILE NOTICE OF COMPLETION-TIME OF ORIGINAL CONTRACTOR TO FILE CLAIM.-Where the owner, with knowledge that improvements are being made on his property although he is not a party to the contract therefor, fails to file a notice of completion, a claim of lien by an original contractor filed after the expiration of the sixty-day period but within ninety days after completion is in time.

[4] ID. KNOWLEDGE OF IMPROVEMENTS - FAILURE TO GIVE NOTICE LIABILITY OF OWNER.-One who stands by and sees another improve his property, without putting him on notice, must be held responsible for the value of the improvements. Under such con ditions the owner is not an innocent party.

APPEAL from a judgment of the Superior Court of Los Angeles County. Leslie R. Hewitt, Judge. Affirmed.

The facts are stated in the opinion of the court.

Walter M. Campbell for Appellants.

G. C. De Garmo and Robert Whitson for Respondents.

THOMAS, J.-These two actions, brought for the foreclosure of mechanics' liens against defendants and appellants, were consolidated in the superior court and tried as one. The liens claimed were for labor done and materials furnished in making certain alterations and improvements in a storeroom in the Henne Building, occupied by Naumann & Schill, Inc., as tenants of the defendants and appellants, who were the owners.

Each lien claimant was an original contractor, and all the work done and materials furnished was at the instance of said tenants, and without the actual knowledge of appellants. The evidence was conflicting as to the knowledge of the employees of R. A. Rowan & Co., as shown and admitted to be the agent of appellant for the collection of rents and care of the building. Each of these respondents, except Suck, filed two claims, the first one in each case being filed within sixty days after completion of their contract, and the second within ninety days after completion, but more than sixty days thereafter. No notice of the completion of any of the work was filed in the recorder's office. Respondent Suck alleged that he was employed by appellants Jane Louise Henne and Jane Louise Henne, as guardian of the person and estate of Christian

4. Knowledge of owner of improvements in process under orders of lessee as "consent" which will subject his interest to mechanics' liens, note, 4 A. L. R. 685.

Statutes giving liens where owner with knowledge of the improvement fails to give notice of nonliability, notes, 23 L. R. A. (N. S.) 618; L. R. A. 1917D, 584.