load there was a fireman, I think, to receive the oil. The fireman did not adjust the apron; I do not know who adjusted it. The apron was already adjusted when I landed with the first load. When I got there with the first load I did not get off the truck. I did not report to anybody that I was there with the first load. . . When I left there was a bunch of men working around there. After I had the truck back in place they helped me put the long pipe on. Then I unloaded my load of oil and took off the pipe.. . . When I got back with the second load there wasn't anybody there. I did not report at the office, I did not report to anybody. I did not get off the truck. I did not ascertain whether there was a change in the tide, or whether the change of the tide or swaying of the boat in anywise disturbed the arrangement of the apron and the bridge. I did not inquire of anybody whether everything was in order; there was nobody there. I did not make any inspection myself. I did not know whether the apron was safe and properly fastened or not. I naturally supposed it was all right. I backed into place as I always had done when the apron was down and the boat was in. There were always men there before that but this time nobody was there."

The testimony on behalf of defendant was as follows: E. V. Rideout, the defendant, testified that, in January, 1916, he had the use of pier 19. "The space we actually occupied is open to the public. I have not the exclusive occupation of this wharf. The space is not marked off. When we were not in possession anyone can come with the permission of the wharfinger on the dock, or they can come in without permission. The wharfinger looks after the dock and takes care of it. He is there constantly. I have not agreed to anything as to keeping anything in order. I was under no obligation to maintain the plank, bridging, piling or anything of that kind. The harbor commissioners keep the dock in repair. I have nothing to do with the maintenance of the apron. The harbor commissioners or their agents make the repairs if any are needed. . . The harbor commissioners supplied the ropes, chains, pins and tackles. I have never directed the Union Oil Company's trucks as to how they should drive or where or when, nor have I ever authorized any of my employees to direct them in the operation of their trucks on the dock. I was not present on the day of the accident. The engineer was in charge of the boat on that day. Mr. Pierson, the bookkeeper, was in charge of the books."

H. H. Pierson, defendant's bookkeeper, testified: "On the 23rd of January, 1916, I was in the inner office doing some work on my books. I have nothing to do with the running of the boat other than just giving instruction when the load is to go and come. . . . I remember the Union Oil tank wagon coming to deliver cil on that Sunday morning." The witness told of the delivery of the first load of oil and that he asked the driver to take dinner with them if he returned in time. "I was there when he came back with the next load. That was about five minutes of twelve. When he came on the dock there was a big noise. I ran out of the office. I saw a man standing looking toward the slip. There was no truck there. I just saw that the apron was broken; one of the cables, I think it was on the left-hand side, looking down, was broken; the counter weight had dropped down; the pins were hanging underneath, the two pins on the side of the apron. I laid one on the dock and said, 'That is the trouble.' I said that to Mr. Younger, one of the other employees of the Rideout Company."

F. H. Young, who said he was "general utility man" for the E. V. Rideout Company, was with Mr. Pierson at the time of the accident. He said that he "heard an awful crash outside" and he and Pierson ran out.

He testified: "I observed the condition of the apron at the time. The apron had fallen down. The two slides that had held it up had pulled through and one of them was broken off and the other was laying down to one side. The two pins that hold those slides in place were both hanging by their chains. One of the counter-weights was broken, the fastener where it fastened to the apron was broken; one hinge was broken." On cross-examination the witness said: "The pins that hold this rod sustain the outer end to the apron, and also these cables that are used to hoist it up. If these pins are not in there and any considerable weight comes upon the apron, the apron drops, that is if the weight is more than these cables will sustain. It takes two men with great effort to operate this outer end of the apron. I have seen two men, one on each side, with great effort lift it, but two men on each side can handle it very nicely.

The block and tackles are attached to the outer end of the apron whenever you desire to raise or lower the apron. It takes four men to raise and lower the apron."

C. W. Thom, chief engineer of the steamer "Crockett," testified that he was on the boat, with his full crew of three firemen and assistant engineer, on the day of the accident; they were at dinner and heard a slight jar on the boat when the truck hit it. He said: "I and my crew have nothing to do with the apron. I do not exercise any authority or undertake to direct the trucks of the Union Oil Company when delivering oil. I gave the driver no orders to come back. He said he would be back, but he set no time." On cross-examination he said: "When the boat lands at this place the mate or the captain handle the men that handle the cargo. Then the men on the boats unload the cargo over this apron. When the apron is too high they lower it; when it is too low they raise it and they leave it as it may be necessary for the proper handling of the cargo. The boat's crew regulate it in accordance with the tide. About sixty men constitute the crew. I suppose there were over a dozen on board at the time this accident occurred. Whenever the wagon comes from the Union Oil Company it is the custom first for them to announce their presence and then I send somebody to handle the pipe. I have nothing to do with cables or tackles or anything of that kind whatever, nor have any of my men."

In rebuttal, the witness, Ellis, testified: "I drove on the wharf in the ordinary manner. I backed up on the apron the same as usual. It was not a place to use any speed. I had to stop and back up. It was simply a short place to back up and you can't back with any excessive speed. When the boat is in and the apron down I do not give notice to the people on the boat of my presence. . . If the apron was not in position when we went there the boat crew put it in position." On cross-examination, the witness testified: "The truck and load of oil weighed 22,000 pounds. Q. You have been to school, haven't you? A. I have. Q. How far did you progress in school? A. I went far enough to read and write. Q. You are a grammar school graduate? You know all about the tides? A. I know that the tides come in."

We have thus presented sufficient of the evidence produced by both sides to subserve the purposes of the decision herein.

The findings of the court, in substance, were that defendant was not guilty of negligence in any degree and that plaintiff's servant, Ellis, was guilty of negligence in recklessly and carelessly driving upon said apron in the absence of defendant and his employees and without examining said apron or inquiring as to its condition of safety.

The harbor commissioners have full and exclusive general control and jurisdiction over the wharves and piers of the San Francisco water front,

and it is undoubtedly their general duty to keep the same in proper condition for the use for which they are intended and to repair them when out of order and not in proper condition for their use with safety by those docking their boats and vessels thereat. [1] As to the contractual relation existing between the harbor commissioners and those to whom they let the privilege of docking their boats at the piers, while it is to be conceded that, in a strict sense, as counsel for the defendant contend, the relation of landlord and tenant does not exist between them (see Morton Bros. v. Pacific Coast Steamship Co., 122 Cal. 353), still it cannot be doubted that, so long as the owners of boats have their vessels in dock at said piers, though not having that exclusive right and privilege, they are nevertheless as much occupants of said piers as they would or could be if they were in the strictest sense tenants of said commissioners. We suppose it is safe to say that the right granted to boat-owners by the commissioners to use the piers for the docking of their vesseis is a mere privilege or license, all owners of vessels plying the waters ending in the San Francisco bay having, where duly granted them, the same privilege or license. But it does not follow from that situation that it is not the duty of the owner of a boat or vessel, while using said piers for their transportation purposes, to see that, while their vessels are so docked, the necessary facilities or equipments for the loading or discharging of freight or the taking in or discharging of pasrengers are in safe and proper condition for those purposes. In 29 Cyc., p. 476, it is said that "the occupant of premises, although a mere licensee, is liable for injuries inflicted by reason of his neglect or failure to keep the premises in a safe condition", and, in Thompson v. Tilton Elec. L. & P. Co., 77 N. H. 93, which was an action for the death of a child, who was killed by the electric current of one of the company's poles while leaning against the pole, which stood in a public highway, the court said: "In the view most favorable to the defendant, the relation existing between it and the deceased was that which arises between two licensees upon land of a third party. Each must use ordinary care not to injure the other or his property." [2] Even if there were inherent defects in the apron or any other of the equipments of the pier essential to the loading or unloading properly and with safety of freight on and from the vessels docking thereat, and it was the duty of the harbor commissioners to correct such defects, it was still incumbent on the defendant, while using the pier, to exercise reasonable or such care as might have been necessary to the discovery of such defects and the correction thereof either by himself or the commissioners. This requirement of the defendant follows from the proposition that, when using the dock for the purposes of the transportation business in which he is engaged, the defendant, like the man who conducts a merchandise business of any character, invites the public to the dock and to use the pier for the purpose of transacting business with him, and, again like the merchant, he is required to maintain in safe and proper condition the means of ingress and egress whereby his customers go in upon and out of his boat, and the means whereby freight is transferred from the boat to the wharf or from the wharf to the boat. As a matter of fact, as to the plaintiff in this case, the defendant, in his written contract, guaranteed to the former, when delivering oil to his boats, "proper unloading facilities and access to the dock". By this covenant, the defendant agreed to provide the plaintiff with safe means whereby he could deliver the oil upon the boats, and thus he expressely bound himself, as the law itself had already bound him, to provide the plaintiff with such unloading facilities as would insure the delivery of the oil on board the boats with safety and despatch.

As the evidence above quoted herein shows, Ellis, who was in charge of the truck on the day of the accident, had on some twenty-five or more previous occasions delivered oil to the defendant's boats at said pier, in the same manner in which he attempted to do so when the apron gave way and the truck thus precipitated into the bay. On that very day, just a short time before-not much over an hour prior to the accident-he delivered a quantity of oil to the defendant's steamer "Crockett" at said pier and in doing so drove or backed the truck, as he attempted to do when the accident occurred, on to the apron. It was necessary for him thus to move the truck upon the apron to make the delivery. On his return with the second load of oil, the driver observed that the apron was apparently in the same condition that it was in when he had previously used it. He had the right to assume that it was in the same condition, or that, being in position for its customary or usual use, there were no defects in it which would render it unsafe to use it as he had always used it. [3] He had a right to assume that the defendant, when in use of the pier, would exercise reasonable care to see that the apron and its essential equipments were maintained in a condition to be used with safety. Particularly was he justified in so assuming, in view of the fact that he knew that the defendant's engineer and others connected with the boat knew that he would return and expected him to return to the boat that day, shortly after the first load was delivered, with another load of oil to be delivered to the boat. He was not, therefore, charged with the duty of leaving his truck and himself making an investigation to assure himself of the safety of the apron. In Earl v. San Francisco Bridge Company, 31 Cal. App. 339, an action for damages for personal injuries to an employee who was injured from a powerful electric current while manipulating a part of the electrical apparatus, which had gotten out of repair without the knowledge of the plaintiff and which defect was the cause of the injuries received by him, this court said, at page 346: "It was not negligence on the part of respondent to assume that conditions were as before, and that the switch would disconnect the current. Having the right to assume that the appliance was in the same condition, he was excusable for his failure to make an examination or inspection whereby he might have ascertained what had been done; nor was the difference in the appearance of the equipment so palpable and obtrusive as to compel the conclusion that while hastening to perform his duty, if he had exercised ordinary care he would have discovered the change."

As above stated, the evidence shows that there was absolutely no difference in the appearance of the apron at the time of the accident from its appearance when he delivered the first load of oil that day or at any other previous delivery of oil by the same driver.

But it is asserted by the respondent that there existed a custom, of which the driver of the truck had knowledge, that whenever said driver took a load of oil to the boat, to be emptied from the truck into a tank maintained for that purpose on the boat, he was to notify the engineer or some other person connected with the vessel of his presence with the oil before attempting to drive the truck on the apron. But we have found no such testimony in the record as it is presented here. What the engineer did testify to was this: "Whenever the wagon from the Union Oil Company comes it is the custom first for them to announce their presence and then I send somebody to handle the pipe. I directed where the oil should go. That is the ordinary method of doing it. When the pipe is put in I am notified of it in order to direct where the flow should go." Again, the engineer testified: "Before the oil is taken aboard they always notify us,

because we have got to know, otherwise we would flood the tank." [4] This is far from saying that it was the custom for the driver to notify the engineer of his presence at the pier for the purpose of giving the engineer or some other person connected with the boat an opportunity to inspect the apron to see whether it was safe to drive the truck upon it.

It is not known, or at least it was not shown, how the apron became defective or in a condition not to be used with safety, nor is it necessary to this decision that that fact should be known, since there is no claim that the driver of the truck caused the unsafe condition thereof. An investigation after the accident, however, disclosed that the two pins which held in place the slides which supported the apron were out of their proper places and were "hanging down by their chains". In other words, it was evident that by some means or in some way, wholly unexplained by the record, the pins were removed from their proper places, and, therefore, afforded no support for the slides. It may be that the action of the tide had so swayed the apron as to cause the pins to become loose and so become useless for the purposes for which they were designed. However that may be, it is contended by the respondent that the burden was upon the plaintiff affirmatively to show either that the pins were removed by the defendant or his servants or that the defect in the apron was produced by some other act of theirs. [5] We do not agree to that proposition, but, on the contrary, we think that the doctrine of res ipsa loquitur applies. That rule is stated as follows by Shearman & Redfield on Negligence, section 60: "Where a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care. (See Judson v. Giant Powder Co., 107 Cal. 549, 556.)

In Bergen v. Tulare County Power Co., 173 Cal. 720-21, which was an action for damages for death caused by the negligent installation of an electrical apparatus, the court said: "It is the rule in this state that where electricity is furnished to a system installed and operated exclusively by the owner of the premises, the doctrine res ipsa loquitur has no application. .. But where the defendant in such a case had some control over the situation (italics ours), either by reason of its construction or its operation of plaintiff's plant, a showing of accident without plaintiff's fault shifts the burden of proof."

We have already shown that the pier and its equipments necessary for the loading and discharging of freight, during the times the vessels of the defendant occupied the pier, were under the latter's exclusive control and management. The chief engineer of the defendant's boat which was at the pier when the accident happened, testified: "When the boat lands at this place (the pier), the mate or the captain handle the men that handle the cargo. Then the men on the boats unload the cargo over this apron. When the apron is too high, they lower it; when it is too low, they raise it and they leave it as may be necessary for the proper handling of the cargo. The boat's crew regulate it in accordance with the tide, and they use it wherever there is a necessity." That evidence is sufficient, if there were no other in the record, to show that the defendant had "some control over the situation" by reason of the necessity of regulating the apron in accordance with the action of the tide and of keeping it in proper condition for using it for the boat's purposes with safety.

As before shown, it also further appears from the evidence that Ellis, the plaintiff's truck driver, during the preceding two years during which