contributing to the Injury of the plaintiff concurred with the negligence of a fellow servant, the defendant is liable, even if the negligence of the fellow servant contributed to the cause of the injury; (4) instructing the jury that if the work in which plaintiff was engaged at the time of his injury was such as to require rules and regulations for the reasonably safe conduct thereof, and the defendant failed and neglected to provide such rules and regulations and such failure was the proximate cause of the injury, the plaintiff is entitled to recover if he was not negligent himself; (5) modifying two instructions requested by the defendant, to the effect that, if the accident to the plaintiff was due to the negligence of a fellow servant, plaintiff could not recover, by adding thereto the proviso if defendant was itself without negligence; and (6) the overruling of the motion to set aside the verdict because it is excessive and the result of prejudice and passion.

T. H. Crawford and Zera Snow, for appellant. Leroy Lomax and Gustav Anderson, for respondent.

BEAN, C. J. (after stating the facts). It is unnecessary to notice the alleged errors seriatim, for they are all, except the last, based upon the theory that the complaint charges but one specific act of negligence as the proximate cause of the injury to the plaintiff, and that is the removal by the defendant of the employé Kinney from the head of the shoot a short time before the log causing the injury to plaintiff was sent down, and directing the teamsters who were hauling logs to start them down without instructing them how to do so with safety to the plaintiff and others working at the middle bench. With this construction of the allegations of the complaint as a premise, counsel argue that the motion for nonsuit was well taken because the proof shows, as they claim, that Kinney was not removed from the head of the shoot, but was at work there at the time the log causing the injury to the plaintiff was started down, and was in fact the person who started it, and that it was error for the court to instruct the jury in reference to the duties of the defendant to promulgate and enforce suitable rules and regulations governing the work of sending logs down the shoot, because such instructions were not within the issues made by the pleadings. In this construction of the complaint we are unable to concur. It is perhaps unnecessarily long and prolix, but it manifestly proceeds upon the theory that it was the duty of the defendant to exercise reasonable care and prudence to provide the plaintiff with a reasonably safe place in which to work, and that from the nature and character of the work at the middle bench, and the dangers necessarily attending it, it was not such a place unless the defendant had established and enforced

adequate rules or regulations among its employés governing the manner in which the work should be done, and providing for proper and timely warning to the men at work at the middle bench before logs were started down the shoot.

It is expressly alleged that without the enforcement of such rules or regulations the place at which plaintiff was put to work was extremely hazardous and dangerous, and that defendant failed and neglected to promulgate or enforce any rule or regulation for the safety of its employés, and that the want of such a rule or regulation was the cause of the accident to the plaintiff. That the place at which plaintiff was put to work was extremely dangerous and unsafe without the strict enforcement of a rule or regulation requiring the men to be warned of the approach of a log, a sufficient length of time allowed to seek a place of safety, and that a failure or neglect of the defendant to promulgate and enforce some such regulation would be actionable negligence, are too clear for argument. Hartvig v. North Pacific Lumber Co., 19 Or. 522, 25 Pac. 358. And one of the issues made by the pleadings and tried in the lower court was whether the defendant had discharged its duty in this regard. The complaint alleges that it had failed and neglected to provide or enforce such a rule or regulation. This averment is not only denied by the answer, but it is affirmatively alleged that defendant had promulgated and enforced a rule requiring that before a log should be started down the shoot the men at work at the middle bench should be notified and given time to place themselves in a position of safety, and that after they had done so they were to notify the parties stationed at the head of the shoot, who should then send the log down. To disregard these averments of the pleadings and the issues thus tendered and made would be giving to the complaint altogether too technical a construction for the practical administration of justice, and especially so since the question does not seem to have been raised or suggested until the trial.

It is true the complaint alleges that on the morning plaintiff went to work at the middle bench defendant had an employé (which the evidence shows to have been Kinney) stationed at the top of the shoot to attend to starting the logs and to see that warning was given to the employés working at the middle bench in time to take precaution for their safety, and that while he was attending to his duties logs were sent down at regular intervals, and notice and warning given before the next succeeding lot were started, and that in such manner the work was safe ly conducted, but that a short time before the accident this employé had been removed and the teamsters directed to send the logs down immediately and without any system, and that after the removal of such employé

the log causing the injury was sent down. This is but a part of the averments of the complaint, and it is not alleged that the employé stationed at the head of the shoot had been properly instructed in regard to his duties or that he had been instructed at all, or that suitable rules or regulations had been promulgated by the defendant for his guidance, or that his removal was the sole and proximate cause of the injury to the plaintiff. Indeed, the contention that the complaint assumes that he had been properly instructed as to his duties. is negatived by the positive averment that no rules or regulations had been promulgated by the defendant governing the conduct of the work at the shoot or the manner of giving warning to the employés at the middle bench of an approaching log. We are of the opinion, therefore, that the complaint charges negligence in not providing suitable rules or regulations governing the conduct of the work, and that the court was not in error in submitting the cause to the jury on that theory.

The remaining question arises upon the overruling of the motion to set aside the verdict because it is excessive. It was held by this court in Nelson v. O. R. & N. Co., 13 Or. 141, 9 Pac. 321, that where the verdict of a jury in an action of this kind is excessive it is the duty of the trial court to set it aside, but its refusal to do so cannot be reviewed on appeal because it does not present a question of law, but one of fact, which the court is not authorized or empowered to examine. This case has been subsequently followed (McQuaid v. Portland & V. Ry. Co., 19 Or. 535, 25 Pac. 26; Kumli v. Southern Pac. Co., 21 Or. 505, 28 Pac. 637; Coos Bay Nav. Co. v. Endicott, 34 Or. 573, 57 Pac. 61; Sorenson v. Or. Water Power Co.. 47 Or. 24, 82 Pac. 10), and we know of no reason why it should be now disregarded. The verdict in this case is large, but the trial judge, who saw the parties, heard the witnesses, and was necessarily more familiar with the facts than we can be from reading the record, declined to disturb the verdict, and nothing appears to justify our interfering with his conclusions. even if we had the right to do so. Judgment affirmed.

(48 Or. 439)

GOSS v. NORTHERN PAC. RY. CO. (Supreme Court of Oregon. Oct. 23, 1906.) 1. CARRIERS-INJURIES TO PASSENGER-NEGLIGENCE OF CARRIER-EVIDENCE.

In an action for injuries to a passenger, caused by the sudden closing of a car door against his hand, as it rested on the door frame, evidence held insufficient to show that the catch for the car door was insufficient and out of repair, or that the train was being operated at a high and dangerous rate of speed, which caused the door to become disengaged from the catch by the lurching of the train.

2. SAME RES IPSA LOQUITUR-REBUTTAL OF PRESUMPTION.

In an action for injuries to a passenger caused by the sudden closing of the car door on his hand, any presumption of negligence arising from the accident was overcome by the uncontradicted evidence that the catch provided for the car door was in good repair, and that the train was not operated at a dangerous rate of speed, and hence a verdict was properly directed in favor of defendant.

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer, Judge.

Action by J. T. Goss against the Northern Pacific Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This is an action for negligence. On August 27, 1903, the plaintiff was a passenger on one of the defendant's trains from Kalama to Tacoma. Having occasion during the journey to go to the toilet, he found the room occupied, the door locked, and the door from the car to the platform opened back against the toilet door. He started to step out on the platform to await an opportunity to enter the toilet, and while he was passing out put his hand on the door frame to steady himself, when the door suddenly closed, crushing his finger. At the close of the testimony the court directed a verdict for the defendant, and the plaintiff appeals.

S. C. Spencer, for appellant. O. C. Spencer, for respondent.

BEAN, C. J. (after stating the facts). We are of the opinion that the court was right in directing the verdict. The negligence charged is that the catch for the car door was insufficient and out of repair, and that the train was being operated at a high and dangerous rate of speed, which caused the door to become disengaged from the catch by the lurching of the train. The proof does not, in our opinion, sustain either of these allegations. The plaintiff, who is a contractor and had frequently traveled on defendant's trains between Kalama and the Sound and was familiar with its cars and road, testified that at the time he tried the toilet door the car door was opened back and fastened to a hook or catch on the floor, which was of the kind ordinarily used in railway coaches; that the train was running quite fast, he thinks about 50 miles an hour, and was passing around a curve at the time of his injury, and that, in his opinion, the raising of one side of the car while going around the curve was the cause of the door becoming unfastened and shutting against his finger; that he made no examination of the catch to ascertain whether it was out of repair, and does not claim that it was, or that the train was running at an unusual rate of speed, but says that it was running on schedule time and over a good roadbed. brakeman, The conductor, car inspectors, and other witnesses for the defendant, who

The case, as thus made out by the testimony of the plaintiff and all the other witnesses, was simply the sudden closing of a car door, the fastenings of which were in good repair, on a train moving at the usual rate of speed, and without any proof that it was due to the negligence of the defendant or of any facts from which an inference of negligence could be drawn. The plaintiff claims, however, that proof of the occurrence of the accident and the extent of his injury made a prima facie case in his favor, and cast the burden upon the defendant to show that the accident was without its fault, and that whether such presumption was overcome by the proof was a question of fact for the jury, and not the court. Ordinarily the mere fact of an accident does not per se raise a presumption of negligence, but often negligence may be implied from the facts and circumstances disclosed, in the absence of evidence showing that the accident occurred without negligence. Sherman & Redfield, Negligence (4th Ed.) § 59; 2 Thomas, Neg. (2d Ed.) p. 1093; Jaggard, Torts, 933. Thus, where the evidence shows that the defendant had the exclusive management and control of the thing which caused the injury, or where it appears that the accident occurred through some defect in the vehicle, machinery, roadbed, or appliances, the circumstances, if unexplained, may be sufficient to justify a jury in drawing the inference of negligence, under the rule of res ipsa loquitur. This doctrine has been fre quently recognized and the principle applied by the courts in a variety of cases, such as accidents from fallen electric light wires (Boyd v. Portland Electric Co., 40 Or. 126, 66 Pac. 576, 57 L. R. A. 619; Id., 41 Or. 336, 68 Pac. 810; Chaperon v. Portland Electric Co., 41 Or. 39, 67 Pac. 928), or from the falling of a sleeping car berth (Hughes v. Railway Company, 39 Ohio St. 461), or from the derailment of a train upon which the plaintiff was riding (Montgomery, etc., Ry. Co. v. Mallette, 92 Ala. 209, 9 South. 363; Southern Kansas Ry. Co. v. Walsh, 45 Kan. 653, 26 Pac. 45; Feital v. Middlesex Railroad Co., 109 Mass. 398, 12 Am. Rep. 720; Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890, 55 N. W. 270, 20 L. R. A. 316, 38 Am. St. Rep. 753), or by a train running into a landslide (Gleeson v. Virginia Midland Ry. Co., 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458), or colliding with another train or an obstruction on the track (Louisville & Nashville R. Co. v. Ritter's Adm'r, 85 Ky. 368, 3 S. W. 591; Smith v. St. Paul City Ry.

Co., 32 Minn. 1, 18 N. W. 827, 50 Am. Rep. 550), or by the upsetting of a stage coach, etc. (Stokes v. Saltonstall, 13 Pet. [U. S.] 181, 10 L. Ed. 115). See additional cases collated in 3 Am. Neg. Reports, 488. But in nearly, if not quite, every case that has come under our notice in which the rule has been applied, it appeared either that the thing causing the injury was under the exclusive control of the defendant, or that the injury resulted from the breaking of machinery, the derailment of cars, or something improper or unsafe in the appliances or the conduct of the business. In other words, that it was not the injury alone from which the negligence was presumed, but the manner and circumstances under which it occurred, which justified the application of the maxim. An unusually clear and learned discussion of the question will be found in the opinion of Mr. Justice Cullen, in Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 Am. St. Rep. 630.

It is doubtful, therefore, whether the rule can be applied in the case at bar. The car door which caused the injury to the plaintiff was not under the exclusive control of the defendant, but was being constantly used by passengers boarding and alighting from the train and in going from one car to another, and there is no evidence that it was or had been opened or fastened by the defendant's employés, and not by a passenger. Nor is there any testimony that the accident was due to a defect in the door or the fastening or the unusual movement of the train. There was therefore no proof of any fact or circumstance attending the accident from which an inference of negligence could be drawn. The case as made was similar to that of a passenger injured by the falling of a car window, in which case it has been held that mere proof of the injury raises no presumption of negligence against the defendant. Faulkner v. Boston & Maine R. Co., 187 Mass. 254, 72 N. E. 976; Strembel v. Brooklyn Heights R. Co. (Sup.) 96 N. Y. Supp. 903. But, whatever the rule may be, and assuming that the doctrine applies in a case of this character, the evidence as given on the trial was so clear and convincing that the accident was not due to the negligence charged in the complaint as to completely overcome any presumption which may have arisen from the mere happening of the accident. The evidence had no affirmative signification in establishing negligence on the part of the defendant, but the negligence complained of was left wholly and entirely to inference and presumption from the mere happening of the accident. This presumption, if it existed at all, was overcome by the plaintiff himself, as well as by the other witnesses in the case, and it was therefore not error for the court to direct a verdict in favor of the defendant. Spaulding v. Chicago & N. W. Ry. Co., 33 Wis. 582; Menominee River, etc., Co. v. Mil

& Northern Ry. Co., 91 Wis. 447, 65 N. W. 176. "Where," as said by Mr. Justice Wolverton, in Boyd v. Portland Electric Co., 41 Or. 336, 68 Pac. 810, "the evidence of the plaintiff has affirmative significance in establishing negligence, and the negligence complained of is not left wholly to inference or presumption, the question becomes a mat ter for the jury, to be determined by the preponderance of evidence." But, where there is no proof of negligence, except the mere inference or presumption arising from an accident, and this is overcome by positive, undisputed, and unimpeachable testimony, there is no question of the preponderance of evidence, and nothing for the jury to decide.

Judgment affirmed.

(48 Or. 444)

MORTON v. OREGON SHORT LINE
RY. CO.*

(Supreme Court of Oregon. Oct. 23, 1906.) 1. WATERS AND WATER COURSES-RESTORATION OF CHANNEL.

Where a freshet causes a natural stream to form a new channel across the land of a riparian proprietor, the latter may, within a reasonable time, restore the flow to its original bed.

[Ed. Note. For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, § 72.] 2. SAME-RIGHTS OF LICENSEE.

Where defendant, railroad company, built jetties into a river from the bank of a riparian proprietor with his consent, and thereafter a freshet caused a new channel to be formed, the licensor being a riparian proprietor on the new channel, the railroad company, had the same right to change the flow of the current that its licensor possessed:

[Ed. Note.-For cases in point, see vol. 48, Cent. Dig. Waters and Water Courses, §§ 72, 73.] 3. SAME

ALTERATION OF CHANNEL CONSTRUCTION OF JETTIES.

Defendant railroad company, obtained the right from a riparian proprietor to construct certain jetties into the river from the bank of his land, and, after the channel of the stream was changed by a freshet, it constructed a jetty into the river. not to restore the stream to its original channel, but to confine the water to the channel made. The effect of the jetty was to cause the water to flow almost at right angles against complainant's land, and greatly injure the same. Held, that the jetty was an unlawful obstruction of the stream which complainant was entitled to have abated.

4. EVIDENCE-JUDICIAL NOTICE LAWS OF

NATURE.

a corporation, to enjoin the maintenance of obstructions to the flow of water in a stream. The complaint states, in substance, that the plaintiff is the owner of certain real property in section 28, township 18 S., of range 47 E., in Malheur county, which land lies west of and borders on the Snake river; that in 1904, the defendant built above such premises in the west channel of the stream certain dams which deflected the water, depositing sediment in the channel, and shoaling it so as to prevent the operation of plaintiff's private ferry boat, from his land to an island in the river, and also depriving his arid land of water from the river for subirrigation; that these obstructions caused another channel to form in such a direction as to force a current directly against the bank of his land, cutting away a wide margin thereof, and, if such encroachment is permitted to continue, it will force a channel through a depression in his premises, making an island of a part thereof to his irreparable injury, to redress which he has no plain, speedy, or adequate remedy at law. The answer denied the material allegations of the complaint, and averred, in effect, that in 1883 the defendant built its railroad through Malheur county on the right of way now occupied thereby and thereafter maintained its roadbed and track, operating trains thereon for the benefit of the public; that at the time the railroad was constructed the water of Snake river, during each freshet, flowed through a swale situated between the roadbed and the west channel of the river, and the floods in that stream have cut and are cutting away the bank near the track, thereby endangering the roadbed to such an extent that the defendant was compelled to build the obstructions complained of, to prevent its property from being destroyed; and that the swale is the so-called channel referred to in the complaint as the west channel of the river, but that such swale is, and at the time the railroad was constructed was, at least 300 feet west of the west channel of Snake river. The reply having put in issue the allegations of new matter in the answer, the cause was referred, and from the testimony taken the court made certain findings and dismissed the suit, from which decree the plaintiff appeals.

Will R. King, for appellant. F. S. Dietrich, for respondent.

MOORE, J. (after stating the facts). The transcript shows that the plaintiff is the owner of the real property mentioned, and that his land borders on the west bank of the Snake river. The township referred to was surveyed in 1874, and the field notes thereof, a copy of which was offered in evidence, show that the left bank of the river, as meandered, then intersected the south boundary of section 33, at a point 68.35 chains west of the southwest corner of that section, and

extended northwesterly by a curved line to a point west, but near the center, of section 33; thence, by a similar line northeasterly, to a point east of the northeast corner of that section; thence westerly and northerly by a curved line to a point west of, but near the center of, section 28; and thence northeasterly to a point 2.80 chains east of the northeast corner of the latter section. A sketch of the margin of the river, as indicated, will disclose that, when the government survey was made, the stream flowed around a peninsula over which the boundary between sections 28 and 33 extended. The defendant, in 1883, constructed its railroad from Huntington, Or., southerly through the premises hereinbefore described, and also through adjoining land on the south, now owned by H. M. Plummer. The defendant offered in evidence a blue print of the locus in quo, reduced to a scale of 400 feet to the inch, which indicates the original course of the river as meandered, the line of the railway as constructed, and other data. It appears from this plat that the railroad was built about 14 rods west of the meander line at the bend near the center of section 28, and about 52 rods west thereof at the curve near the middle of section 33. An extraordinary freshet in Snake river in 1894 cut across the base of the peninsula a new channel, which extends northeasterly over what theretofore had been a meadow. Prior to such change, a large part of the river below the peninsula flowed in a channel that separated plaintiff's land from Datey Island, east of his premises; but, after such flood, the greater volume of water flowed east of that island. Immediately north of section 33, but south of Datey Island, the change in the channel of Snake river formed a large sand bar, constituting an island, the surface of which was above the ordinary stage of water. The bar is separated from the left bank of the river by a narrow channel which extends northerly, and is also severed from Datey Island by a broader channel that extends northwesterly; the waters of which unite and flow by plaintiff's premises. The freshet adverted to and the annual floods in the river have washed away the left bank of the stream in sections 28 and 33, nearly to the east line of the right of way of the railroad, and, to prevent further injury therefrom, the defendant placed several hundred car loads of rock along the margin of the river; and in 1903, with Plummer's consent, it built, where the swale had been, five jetties that extend from the bank down stream at an acute angle with the thread thereof. These obstructions were made by driving parallel rows of piling about 12 feet apart, and filling the intervening space with brush and rock. The lower jetty is about 215 feet long, and extends nearly across the channel west of the sand bar at the head thereof. The other jetties are from 50 to 75 feet in length. Another

extraordinary freshet in 1904, caused the bank of plaintiff's land, for a distance of about half a mile, to be washed away to the depth of 100 feet or more, whereupon he instituted this suit, and, at the trial, offered testimony tending to show that the lower jetty prevented the water from flowing in the channel west of the sand bar, thereby permitting the current in the channel be tween the bar and Datey Island to flow nearly at right angles against his bank damaging it; that the closing of the channel west of the sand bar caused sediment to be deposited, shoaling the channel east of his land, and preventing him from operating, by force of the current, a ferry boat which he maintained for his own use from his premises to Datey Island, a part of which he held by a lease from year to year, and another part thereof was claimed by his son as a homestead where cattle were pastured in which he had an interest; and that if the lower jetty be maintained the diminution of water in the channel will prevent the subirrigation of his land, which is arid, and will also permit the water in the channel north of the sand bar to cut into a swale on his premises, thereby forming a new course through his land and creating an island. The testimony, relating to the injury which it is claimed will result to plaintiff's land by the maintenance of the lower jetty, though given by persons living in the vicinity of his premises, who are acquainted therewith, know the character of the soil, and the effect thereon of freshets in the river, consists of the opinions of several witnesses, and it is possible that the disastrous consequences which they predict may not eventuate. It was stipulated that three civil engineers who were employed by the defendant would, if present, testify that in the early spring of 1905, they made accurate measurements of the left bank of the river through the plaintiff's premises, setting stakes along the margin of the stream, and that returning to his land in the latter part of July, after the annual freshet had subsided, they found that no part of the bank had been washed away during that season, but that the water in the river in 1905 was not as high as it was the preceding year. The foregoing is deemed a fair statement of the material facts involved, and based thereon, the question to be determined is whether or not the jetties can legally be maintained where they are built. The defendant's counsel insist that the river having suddenly changed its channel in 1904, thereby endangering the railroad track, their client, to protect its property, was authorized to restore the flow of the stream to its original bed, and hence the decree should be affirmed.

It has been held that the person across whose land a freshet in a natural stream suddenly causes a new channel to be formed may, within a reasonable time, restore the