Lucchese

This is an appeal by the defendant, John Spingola, from the same judgment that was under consideration in the case of Lucchese v. San Francisco-Sacramento R. R. Co., ante, p. 242 [ 289 Pac. 188 ].

The defendant Spingola asserts that in finding number 12 the court finds all the elements constituting the doctrine of the last clear chance, that said doctrine presupposes that the plaintiff has been guilty of contributory negligence, and, therefore, this plaintiff may not recover against this defendant. Whatever is contained in said finding is addressed to the truck and the train and their drivers. It contains nothing about this plaintiff. Conceding, for the purposes of the argument, that said finding holds that Spingola was guilty of contributory negligence it will not be claimed that his negligence was imputable to this plaintiff. In another finding the court held this plaintiff was not guilty of contributory negligence. There is no conflict.

However, this defendant says the latter finding is not supported by the evidence. He intimates that plaintiff and Spingola were drunk. He quotes the witness Skaggs to the effect that immediately before the accident they were engaged in loud,…