Morrison & Cope, C. H. Wilson, and A. M. McCoy, for appellant. J. T. Matlock and W. P. Johnson, for respondent.

LORIGAN, J. This action is brought by plaintiff to recover damages for personal injuries sustained in the discharge of his duty while in the employment of defendant. Plaintiff on September 23, 1901, was an engineer engaged in operating a "logging train" over the railroad of defendant in hauling logs from Beale Camp to its mill at Lyonsville, a distance of about 15 miles. The railroad of defendant between these points crossed a high trestle known as the "Big Wible Trestle," which, while the plaintiff was passing over it, on the date mentioned, with a logging train, went down with the engine and cars, and plaintiff was severely injured. The complaint alleged that the fall of the trestle was occasioned through defects in the construction, care, and preservation of said trestle, and through the negligence of defendant in allowing the timbers of which said trestle was constructed to become worn, rotten, and decayed, and, without any fault of plaintiff, the said trestle gave way and the said track, locomotive, and train were precipitated to the ground below and demolished. The case was tried by a jury, which returned a verdict in favor of plaintiff for $2,500. fendant moved for a new trial, which was denied, and this appeal is taken from such order of denial.

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As grounds for a reversal, it is urged that the evidence is insufficient to justify the verdict, and that certain errors were committed by the court during the trial.

The claim that the evidence was insufficient is untenable. The evidence in the case was mainly directed on both sides to showing the character of the trestle as originally constructed, and the condition it was in at the time it fell. The evidence upon the subject, it may be said, was conflicting, but in this conflict there certainly was sufficient evidence produced by plaintiff to warrant the jury in finding, not only that the trestle was defectively constructed originally, but also to warrant a finding that at the time it fellsome 12 years after its construction-its timbers had become rotten, loose, and insecure to such an extent as to render the trestle unfited for the purpose for which it was constructed and was being used. And, the evidence being so conflicting, the finding of the jury under the conflict is conclusive, and not subject to review here.

Now, as to the errors of law complained of which we deem merit consideration.

Richard Gernon, a surveyor and civil engineer, skilled in bridge and trestle building, was called as a witness for plaintiff, and testified, both from observation and as an expert, to the manner in which the trestle in question was originally constructed, the defects in such construction, and how it should have been reconstructed to have been reason

ably safe for the purposes for which it was designed. During his direct examination he testified as to the kind of stringers used, the manner in which they were placed on the trestle, and their effect, and was then asked: "Q. And you knew the manner that the stringers were placed upon the trestle? A. I did. Q. Now I ask you whether that was the safe way for the construction of a trestle or bridge of that kind, considering the purpose for which it was used?" to which the witness responded in the negative. To the latter inquiry defendant interposed an objection on the ground that it was "immaterial, incompetent, and irrelevant," which being over. ruled he excepted, and now claims that the court erred in its ruling.

In this court he insists that the objection should have been sustained for two reasons: First, because the matter was not a subject for expert testimony; and secondly, because, if it was, the witness had not qualified as an expert. There is no merit whatever in the second ground of objection. The evidence shows beyond question that the witness qualified as an expert. But, even if it did not, we think, under the general objection made by appellant, it cannot now, for the first time in this court, on account of both or either of the specific reasons, or particular ground of objection that it urges here, but which it did not directly present to the lower court, be heard to question the accuracy of the ruling. Without passing on the point whether or not the matter involved in the question was the subject of expert testimony, we do not think that, under the general objection presented, the appellant can now specifically raise it on this appeal. If the objection was intended to raise that question, it should have been directly made. Certainly it was proper for the plaintiff to prove that the stringers, as placed upon the trestle, and their number, were insufficient to render it a safe structure. If the method adopted to do so was not proper it should have been directly pointed out in the objection. To require this is simply a matter of fairness and justice in order that cases may be tried on their merits. Had attention been called directly in the court below to the particular objection which it is now claimed the general objection of appellant presented, that court would have had a concrete legal proposition to pass on, and counsel for plaintiff would have been advised directly what the particular complaint against the question was, and, if he deemed it tenable, could have withdrawn the inquiry, or reframed his question to obviate the particular objection. Trial judges are not supposed to have the numerous, varied, and complex rules governing the admissibility of evidence so completely in mind and of such ready application, that, under an omnivagant objection to a question, they can apply with legal accuracy some particular principle of law, which the objection does not specifically present. Counsel for appellant could just as

readily have directly presented to the lower court the particular objections which he urges now, instead of objecting generally, and we think that, in order to support any complaint on this appeal relative to the ruling, he should have done so. As was said by the Supreme Court of Arizona in Rush v. French, 1 Ariz. 124, 25 Pac. 816. and quoted approvingly by this court in Crocker v. Carpenter, 98 Cal. 418, 33 Pac. 271: "The object of requiring the grounds of objection to be stated, which may seem to be a technical rule, is really to avoid technicalities and prevent delay in the administration of justice. When evidence is offered to which there is some objection, substantial justice requires that the objection be specified so that the party offering the evidence can remove it, if possible, and let the case be tried on its merits."

It is further insisted that the court erred in admitting in evidence, over defendant's objection, the testimony of the witness Homer Harvey, as to a conversation had with him by James Lucas relative to the condition of the Big Wible trestle. Harvey was a brakeman in the employ of defendant, assisting in operating its logging trains over this trestle. James Lucas was one of the section foremen in the service of defendant. The evidence shows that it was the duty of Lucas to look in general after that part of defendant's road embracing the Big Wible trestle. He was to look after the groundwork entirely and report anything that was necessary in the way of repairs, or to see that the matter was repaired, and as to trestles, if there was one that needed fixing or repairing, it was his duty to tell the trestleman to repair it. Now, as to the conversation in question. Harvey testified that he had seen Mr. Lucas a short time before the accident, and then proceeded: "Well, I was sitting in front of my house one evening, and Mr. Lucas had been out to feed his horse, I think, and he stopped there and said: 'I wish you would tell Paul to go over and get to work on Big Wible trestle.' He says, "That trestle is going down and will kill the whole outfit of you.' He says, 'It is in bad shape.' This was some time before the accident. I don't remember just how long. Three weeks or a month. No repairs were made to my knowledge on that trestle after that time before the accident.

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** He [Lucas] didn't speak any more as to that one trestle. I saw Mr. Paul and gave him the message. I don't remember whether it was the next day; it was in a day or two." This conversation was admitted over a general objection of appellant, and the particular objection that the defendant could not be bound by any statements which Mr. Lucas might have made. The Mr. Paul referred to in the conversation was in the employment of defendant as foreman, having in charge a crew of men engaged in the work of repairing the trestles on defendant's road.

We perceive no error in the admission of this testimony. As one of the grounds upon

which plaintiff based his right of recovery was that the defendant had negligently permitted the trestle to become defective, it was incumbent on him to show that the defendant had knowledge of such defective condition, or that, by a reasonable inspection, it could have been discovered. Brymer V. Southern Pacific Co., 90 Cal. 496, 27 Pac. 371; Sappenfield v. Main St., etc., Co., 91 Cal. 48, 27 Pac. 590. It was the duty of Lucas to examine that portion of the groundwork and the general condition of the Big Wible trestle. He was the agent of the company for that purpose. It was his duty to ascertain whether repairs were necessary, and to inform the other agent of the company-the foreman of the trestle-repairing crew-of their existence so that the repairs might be made. His conversation with Harvey was in the line of a proper performance of his duty. He sent him to inform Paul, the trestle repairer, that the trestle was in bad condition and to make the necessary repairs. As tending itself to show that the defendant had knowledge through its agents of the defects in the trestle, this evidence was relative. Kauffman v. Maier, 94 Cal. 269, 29 Pac. 481, 18 L. R. A. 124; Elledge v. Railway Co., 100 Cal. 282, 34 Pac. 720, 38 Am. St. Rep. 290. As to the language used by Lucas, it was illustrative of his act in sending notice to the trestle repairer; it was used in the discharge of his duty to the company and was part of the res gestæ-a declaration made dum fervet opus. It was certainly admissible to prove generally that Lucas notified Paul, the trestle foreman, that the trestle was in a defective condition, and when what he did in that regard is admissible, it is equally competent to prove what was said by him about these defects while he was doing so. It was a declaration made during the continuance of the agency in regard to a matter concerning which it was the duty of the agent to act, and as part of the res gestæ was admissible. Beasley v. San José Fruit Packing Co., 92 Cal. 392, 28 Pac. 485; Birch v. Hale, 99 Cal. 301, 33 Pac. 1088; Silveira v. Iversen, 128 Cal. 187, 60 Pac. 687; Krogg v. Atlanta, etc., Co., 77 Ga. 202, 4 Am. St. Rep. 79. The cases cited by appellant against the admission of the declarations of Lucas are not in point. They apply to declarations of an agent made after the accident-declarations which are not part of the res gestæ, and which are universally held to be inadmissible. The distinction between these cases and the case at bar is that in this case the declarations were not made subsequent to the accident, but prior to and relative to a matter concerning which the agent was acting within the scope of his employment; a matter depending at the very time and arising from his duty under the agency, to examine the trestle for the purpose of discovering the defects, and to notify the trestle foreman of them and of the immediate necessity for repair.

In connection with the alleged inadmissibilIty of the conversation between Harvey and Lucas may be considered the further claim made by defendant that it was improper for the court to permit the witness Richard Gernon, heretofore referred to, to testify that he had, prior to the accident, called the attention of J. C. Turner, manager of defendant's road, to certain defects in the trestles and bridges on that road. This defect was with reference to the system of stringers used. This evidence was, we think, admissible as showing that the attention of the defendant, prior to the accident, had been called to what was claimed to be a defect in the original construction, as bearing on the question of negligence in failing to obviate the defect. It is true that the inquiry, in as far as it applied generally to the trestles and bridges on the defendant's road, was too broad. Defendant, however, did not object on that account. If, in fact, the particular defect as to these stringers was common to all the trestles on the road, no harm resulted to the defendant from the admission of the evidence as to them in the aggregate, because it is quite apparent from the testimony of Gernon, given prior and subsequent to the evidence objected to, that he had in mind, and was applying his testimony particularly to, the defects existing in his judg ment in the Big Wible trestle. This same witness Gernon, as an expert trestle and bridge builder, testified for plaintiff as to how the Big Wible trestle should have been constructed, considering the purposes for which it was intended to be used. He went into details as to these matters, and testified, among other things, that there should have been additional and perpendicular posts inside the bents of the trestle as originally constructed, and also that the caps should have been longer, and should have had pieces of timber firmly bolted on them so as to hold the cars or train from going over the trestle in case of derailment. Defendant objected to this evidence, but we think it was admissible. In fact we can see no pertinent objection to it. This witness was testifying as to how the trestle should have been properly constructed, and if, in a proper construction, for the purpose intended, it should have had these bents, caps, and bolted timbers, it was proper to show it. It is claimed that the question of guard rails and derailment of the logging train was not involved in the case; that the plaintiff's right of recovery proceeded upon the theory, either that the trestle was not properly constructed originally, or that it had been suffered to go to decay, and that the plaintiff's injury occurred through the fault of the trestle for either or both of those reasons. This is true, but did not preclude proof as to how the trestle in its entirety should have been properly constructed, and it is further apparent from the testimony that, while these guard rails were primarily to prevent derail87 P.-40

ment, they tended also to strengthen the trestle.

This witness also testified, over defendant's objection, as to the effect that running trains over the trestle would have upon the diagonal timbers used in its construction; that the jar of the train in running over them-the vibration-would have a tendency to loosen the nails or spikes driven in the bracing, and thus shake loose the bracing itself; that, instead of nailing these timbers, they and all parts of the trestle should have been fastened with bolts. There was nothing improper in admitting this testimony. It is not such a matter of common knowledge whether vibration occasioned by the passing of a logging train over a trestle will or will not loosen spikes in its timbers that the testimony of one conversant with such matters from experience is inadmissible. Neither is it a matter of such common knowledge that a trestle is more securely constructed. for the purpose the one in question here was built, by the use of bolts rather than of nails or spikes. Hence it was entirely proper to admit the evidence of the witness on both matters, as a proper subject for expert testimony.

The appellant further complains because the court sustained objections of the plaintiff to interrogatories made by defendant's counsel of the witness Gernon on cross-examinatain as to whether the trestle, as he testified it should have been constructed, would "bring absolute safety to the employés of the road," and whether it would "be sufficiently safe for a passenger train to run over." The objection was properly sustained. It was not a question in the case whether "absolute safety" would be secured, or whether a passenger train could safely be operated on the trestle in question, but simply whether the trestle as constructed or maintained by defendant was a reasonably safe trestle for the uses to which is was subjected. Aside from this, it is apparent, from the narrative of the testimony of this witness in the record. that, prior to the particular inquiries complained of here, appellant had endeavored to show by the witness that, in describing how the Big Wible trestle should have been built. he had in contemplation a stronger one than the logging purposes of defendant required. because, in response to an inquiry on crossexamination in that direction, the witness had answered: "I mean to say that it is necessary to have a trestle constructed in the way I have described in order with reasonable safety to carry such loads as they were accustomed to carry over those trestles." Hence, assuming that the questions objected to were permissible, the witness having already been examined by appellant, and having testified on the subject, no harm was committed in precluding further inquiry.

Complaint is made because the court modified one of the instructions asked on behalf

of the defendant. The modification consisted in striking out the first sentence thereof, as follows: "The defendant was not required to use the degree of care in the construction of this trestle in satisfying the demands of the law as to its duty towards its employé, as would be required of a railroad company in the performance of its duty towards passengers upon its trains." The court gave the rest of the instruction which correctly stated the rule of law as to the degree of care necessary to be exercised by the defendant in constructing and maintaining the trestle in question for the purpose for which it was actually intended and used. We perceive no error committed by the court in modifying the instruction. Counsel for appellant insists that the instruction as tendered was in the language of this court as expressed in Dolan v. Sierra Ry. Co., 135 Cal. 436, 67 Pac. 686. This is true, but for that reason it was not error to refuse it. It does not follow, because a trial court does not give an instruction in the language employed by an appellate court in reasoning out a proposition of law or elaborating upon it, that error is thus committed. The most that the trial court is required to do is to give instructions which will embody clearly the principles of law under which the jury is to apply the evidence in the case before them. There was nothing in the case at bar involving any question of the degree of care due from a railroad company in relation to its passengers. The question actually before the jury was whether the defendant performed its duty by the exercise of ordinary care in the construction and maintenance of this trestle for the purpose for which its servant (the plaintiff) was required to use it. The trial court in several instructions clearly instructed the jury on that point, which was all it was required to do, or to which either of the parties was entitled. Some other points are presented on this appeal, but we do not think they merit particular discussion.

The order appealed from is affirmed.

SCHINDLER v. GREEN et al. (Sac. 1,260.) (Supreme Court of California. Oct. 1, 1906.) MECHANICS' LIENS-RIGHT TO LIEN-PERFORMANCE OF CONTRACT-SUBSTANTIAL PERFORMANCE.

Code Civ. Proc. & 1187, in relation to mechanics' liens, provides that any trivial imperfection in the work shall not prevent a lien. The contract for the making of an addition to a house contained no plans or specifications where windows were to be placed. and the contractor placed two windows in the basement, so that they were not directly under windows in the first story of the house, and the contractor testified in an action to enforce a mechanic's lien that he placed the windows in such a manner in order to give the largest amount of

furniture room in the basement, and that no request was made to him to have the windows changed until after the plastering had been put on around them, when he refused unless he should be paid additional for it, whereupon defendant made the change. The cost of placing the windows in alignment was $7.50. Held. that the facts warranted a finding that the contractor acted in good faith, and that the failure to place the windows in alignment was a trivial imperfection.

Department 2. Appeal from Superior Court, Sacramento County; Peter F. Shields, Judge.

Action by C. Schindler against Thomas Green and others. From a judgment in favor of plaintiff and from an order denying a new trial, defendants appeal. Affirmed.

John D. Moynahan and Hinkson & Elliott (C. A. Elliott, of counsel), for appellants. R. Platnauer, for respondent.

LORIGAN, J. This action is brought by an original contractor against defendants as owners of a lot in the city of Sacramento, to foreclose a mechanic's lien: A written contract was made by plaintiff with Annie and Maggie Green, daughters of defendants in the action, who lived on the premises with their parents. said defendants, to do the carpenter work in making alterations and adding two rooms to the house in which defendants lived. The plastering of the rooms was to be done by another person under a separate contract, with which plaintiff had nothing to do. There were no regular plans or specifications as to where the doors or windows in the rooms should be placed, the contract providing generally that there should be not to exceed six doors and not to exceed ten windows. and that the new addition should be built uniformly. The contract price was $403.50 for all materials and carpenter work, of which plaintiff was paid $100 during the progress of the work. Defendants refusing payment after the plaintiff claimed his contract was completed, the latter filed a lien on the premises and in due time brought this action to foreclose it in the amount of $326.50; the $23.00, over the unpaid contract price of $303.50, being claimed for extra work and material furnished beyond that provided for in the written contract. At the trial plaintiff had judgment as prayed for and this appeal is taken by defendants from the judgment and from an order denying their motion for a new trial.

There are many specifications of error in the transcript relative to the admission of evidence. We have given all of them careful consideration, and do not think any of them are well taken, or that particular reference to them is required. Aside from such alleged errors, the main point made by appellants for a reversal is as to the sufficiency of the evidence to sustain a finding of the lower court relative to two windows placed in the basement story of the house as built by plaintiff and the effect of such finding. The court found as to the windows: "That the two windows

placed by plaintiff in the front portion of the basement story of said house were not directly beneath the two front windows of the upper portion of said house, which upper portion consisted of the old house after the same had been raised, and that the placing of such windows in this manner was not workmanlike; and the court finds that the failure of plaintiff to place said windows in the basement in a direct line underneath the two windows of the upper portion of said house is a trivial imperfection." The only complaint made relative to the two windows so referred to was that they were not in alignment with the two front windows in the upper story. No other defect relative to them was complained of. This was what the lower court found to be a trivial imperfection, and relative to it further found that after the work had been completed by plaintiff defendants caused the position of said two front windows to be changed, and had said windows placed directly underneath the two windows in the upper portion of said house for which they paid the sum of $7.50, which the court finds was a reasonable amount to allow the defendants for making such change and which it deducted from the amount for which the plaintiff sued. It is insisted by appellants that the evidence does not support that portion of the finding that the failure of plaintiff to place said windows in a direct line with the windows in the upper portion of the house was a trivial imperfection. We do not think this point is well taken. In the last clause of section 1187 of the Code of Civil Procedure, it is provided that any trivial imperfection in the work shall not prevent a lien. Whether an imperfection in the work for which a lien is sought is a trivial one or not is to be determined from the facts and circumstances of each particular case. No fixed or inflexible rule upon the point can be laid down. Upon this subject it is said in Bianchi v. Hughes, 124 Cal. 27, 56 Pac. 610: ""Trivial imperfection,' as used in the Code, relates to the question whether or not there has been an actual completion of the building. Marble Lime Co. v. Lordsburg Hotel Co., 96 Cal. 332, 31 Pac. 164. 'What constitutes a "trivial imperfection" is a question of fact in each instance' (Willamette, etc., Co. v. Los Angeles College Co., 94 Cal. 229, 29 Pac. 629); and the decision of the trial court thereon cannot be disregarded, unless the party complaining makes it clearly appear to be without any evidence in its support. Harlan v. Stufflebeem, 87 Cal. 508, 25 Pac. 686. The 'trivial imperfections' mentioned in the above section (section 1187, Code Civ. Proc.) refer to imperfect or defective performance of the work upon a building which is claimed to have been completed, and not to a case in which the building is admittedly uncompleted, and workmen are still engaged in constructing substantial portions thereof." Santa Monica, etc., Co. v. Hege, 119 Cal. 376, 51 Pac. 555. And in Harlan v. Stufflebeem,

See

87 Cal. 511, 25 Pac. 687: "The performance of a contract need not in all cases be literal and exact, in order to entitle a party to compensation therefor. Especially is this the rule in contracts for labor by mechanics or artisans, where the quality of the work done, or the manner of its performance, is the sole matter in dispute, and is to be decided upon conflicting testimony. In contracts for the construction or repair of buildings, a substantial performance of his contract is sufficient to entitle the contractor to compensation for the work done by him under the contract. If there has been no willful departure from its provisions, and no omission of any of its essential parts, and the contractor has in good faith performed all of its substantive terms, he will not be held to have forfeited his right to a recovery by reason of trivial defects or imperfections in the work performed. If the omission or imperfection is so slight that it cannot be regarded as an integral or substantive part of the original contract, and the other party can be compensated therefor by a recoupment for damages, the contractor does not lose his right of action. Whether the contract has been substantially performed is a question of tact, which must be determined by the trial court in each instance from the facts and circumstances in that case, and the finding of the trial court upon that point is as conclusive as is its finding of any other fact."

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Now applying these rules to the matter under review: It is not contended that the plaintiff omitted to put in any windows, which he agreed to place in the basement story, but only that they were placed some inches out of alignment with the windows in. the upper story. The court found that this was unworkmanlike. This, however, was not a finding that the plaintiff had failed to substantially perform his contract, but only that the manner of its performance was not workmanlike, with the additional finding, bearing upon such defective alignment of the windows, that it constituted but a trivial imperfection. And the facts and circumstances in the case warranted the court in so finding, as was the court also warranted in finding (as is implied in the finding that the imperfection was trivial) that in placing the windows where he did plaintiff acted in good faith with the intention of complying fully with his contract. As we have said, there were no plans or specifications showing where the windows were to be placed, and as testified to by Devine (who drew the contract and was acting as agent for the Green sisters in supervising the building) the plaintiff had to use his best judgment in the construction of the house, and plaintiff testified that in his opinion the placing of the windows was workmanlike, and that he placed them, though not in alignment, so as to give the most furniture space in the room; that he understood when placing them there that he was following directions given him by De