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objects probably caused his death. The testimony also shows that railroad rails shipped on cars usually shift in transit, so that they extend over the end of the car 18 inches or more, and that the only safe way in which a car in this condition can be coupled is by the switchman stooping, so that the rails may pass over his head. The intestate having been killed at about 7 o'clock p. m., before sunset, and at a point where his view of the cars to be coupled was unobstructed, the question is, assuming from a contemplation of the foregoing testimony, which is a fair résumé of that given at the trial, that the defendant was guilty of negligence in not readjusting the rails, was Tucker also guilty of negligence contributing to his injury, and, if so, was the evidence of his want of care so conclusive that the court could, as a matter of law, take the question from the consideration of the jury? The rule is settled in this state that it is unnecessary for a plaintiff, in a complaint in an action to recover damages for a personal injury, to allege or affirmatively show at the trial that he was free from negligence; but if it should appear from his own proof, offered for the purpose of establishing the defendant's negligence, that he was also guilty of negligence, without which the injury complained of would not have occurred, such proof will defeat a recovery. Grant v. Baker, 12 Or. 323, 7 Pac. 318; Scott v. Navigation Co., 14 Or. 211, 13 Pac. 98; Johnston v. Railway Co., 23 Or. 99, 31 Pac. 283. The defense of contributory negligence is made upon the theory that, notwithstanding the defendant has been guilty of negligence, the person injured has also been guilty thereof, and, as the law will not measure the degrees of wrong where each party is guilty, the plaintiff cannot recover. The answer denies that the defendant was guilty of any negli gence, and avers that the intestate's death was caused by his carelessness and want of attention. It is impossible to say from an inspection of the testimony, or from a consideration of the circumstances attending Tucker's death, whether he had been following the flat car that was "kicked" down, or was standing at the loaded car waiting to make the coupling at the instant of contact. If he occupied the latter position, he would undoubtedly have had sufficient time, and, the sun not having set, ample opportunity, to inspect the car near which he was standing, and, having had experience in coupling cars on which the rails had slipped in this manner, he must have known that he could successfully perform the duty required of him only by stooping, so that the rails might pass over his head when he effected the coupling, and, if he failed to bend forward low enough, the fault was his, and necessarily defeats a recovery. It might be inferred, from the fact that the coupling link was found fastened in the automatic coupler, but not pinned in the common drawhead, that

Tucker had inserted the link in the approaching car which he was accompanying, and in the hurry incident to the performance of his dangerous work did not see the shifted rails, and was not conscious of his extreme peril until too late to stoop low enough to permit the protruding obstacles to pass over his head. That he was stooping when he sustained the injury is evident from the testimony, which shows that, if he had been standing erect when attempting to make the coupling, the projecting rail would have struck his breast instead of his head. The fact that the coupling link was entered in the common drawhead would seem to refute the inference that he was unconscious of the danger to which he was exposed, for, if he had been following the approaching car until he saw the extended rails, his effort to escape the impending danger would probably have prevented him from attempting, as he must have done, to enter the link in the common drawhead. Another circumstance that seems irresistibly to lead to the conclusion that Tucker must have thought that he stooped low enough to avoid injury is the fact that the bed of the car loaded with iron rails must have been lower than that of the car to which it was to be coupled, for it will be remembered that his head was injured by being between the iron rail and the stake pocket; and, if the cars had been of the same height, the rails would have passed over the deck of the approaching car, so that he may have reasonably supposed, in the hurry of the work, that, his head being below the end of the car that had been “kicked” back, he was out of all danger. Assuming, without deciding, that the defendant was guilty in not readjusting the load, it would seem that the plaintiff's intestate was also guilty of negligence contributing to his injury, in that he did not stoop low enough.

It may be suggested that it was incumbent upon the jury, and not within the province of the court, to deduce inferences of fact from the circumstances attending the injury, in view of which it is deemed proper to consider the question of Tucker's assumption of the risk, in case any error may have occurred in reaching the conclusion that he was guilty of contributory negligence. The plea of an assumption of risk is a defense in which, if the injury results from a peril ordinarily incident to the employment, the question whether the servant was in the execution of due care at the time he sustained the injury is wholly immaterial. Railway Co. v. Husson, 101 Pa. 1, 47 Am. Rep. 690. It is not alleged in the answer that plaintiff's intestate assumed the risk that caused his injury, and such averment is unnecessary, if the hazard was ordinary, for the rule of the common law is that when a servant, of suitable age and sufficient intelligence, enters into the employ of the master, he is presumed to understand, and, therefore, in considera

tion of the rate of compensation agreed to be paid, voluntarily assumes, all the risks ordinarily incident to the business in which he engages (Johnston v. Railway Co., supra; Brown v. Lumber Co., 24 Or. 315, 33 Pac. 557; Snow v. Railway Co., 8 Allen, 441, 85 Am. Dec. 720; Hare v. McIntire, 82 Me. 240, 19 Atl. 453, 8 L. R. A. 450, 17 Am. St. Rep. 476; Wonder v. Railway Co., 32 Md. 411, 3 Am. Rep. 143); and whenever the law presumes a fact, it is not necessary to aver the same in a pleading. Bliss, Code Pl. (3d Ed.) $ 175. The rule appears to be otherwise, however, in respect to extraordinary risks, in which case the servant's assumption thereof, to be available as a waiver, must be affirmatively alleged in the answer. Mayes v. Railway Co., 63 Iowa, 562, 14 N. W. 340, 19 N. W. 680; Fisher v. Lead Co., 156 Mo. 479, 56 S. W. 1107; Stock Yards v. Goodwin, 57 Neb. 138, 77 N. W. 357; Lloyd v. Hanes, 126 N. C. 359, 35 S. E. 611; Lee v. Mills Co., 21 R. I. 322, 43 Atl. 536. "The waiver of the

negligence of the defendant," says Mr. Justice Beck, in Wells v. Railway Co., 56 Iowa, 520, 9 N. W. 364, "places the case in the same position as though the defendant had not been negligent; and without the negligence of the defendant there can be no recovery." The servant's assumption of extraordinary risks is a waiver in advance of all claims for damage that may arise in consequence of the master's negligence, and, as a plea of such fact admits a right of action in the servant, but seeks to avoid recovery by reason of the waiver, it seems to be necessary to allege such defense, if relied upon. The important question to be considered is whether the shifting of iron rails in transit, so that they project beyond the end of the car on which they are loaded, creates an extraordinary risk. "The ordinary risks of a particular business," say Shearman and Redfield in their work on Negligence (5th Ed.) § 185, "are those which are part of the natura' and ordinary method of conducting that business, even though they might fairly be called extraordinary with reference to a different business, or a different department of the same business." In Jackson v. Railway Co., 104 Mo. 448, 16 S. W. 413, it was held that when a railroad company is in the habit of receiving and transporting cars laden with timbers and iron rails projecting over the ends of the cars, the risk arising therefrom is the ordinary one assumed by a brakeman engaged in the company's service. Mr. Justice Black, speaking for the court, says: "The business of a brakeman is beset with many dangers which are incident to his business, and these risks arising from cars loaded with projecting timbers and rails are risks incident to this particular business, and as to that business are not extraordinary." In Railway Co. v. Husson, supra, a brakeman was killed in coupling cars by having his head crushed between the ends of bridge frons projecting beyond the ends of the cars

on which they were loaded, and, it appearing that he was aware of a regulation of the company requiring persons coupling such cars to stoop for that purpose, it was held that the risk run by the brakeman was not extraordinary. In Railroad Co. v. Plunkett, 25 Kan. 188, it was held that where a railroad company is in the habit of receiving cars from other roads loaded with timbers projecting over the ends of the cars, so as to make it dangerous for any one except a careful, skillful, and prudent person to attempt to couple the cars together, it is not negligence for the railroad company to order and permit such a person, who has been in the employ of the railroad company doing that kind of business for about five months, to attempt to make such a coupling, where the attempt is made in broad daylight, although it may be raining at the time. In Boyle v. Railway Co., 151 Mass. 102, 23 N. E. 827, the plaintiff's intestate, in attempting to couple cars, had his head crushed by projecting timber, and, the injury having occurred in daylight, it was held that he assumed the risk, and that no recovery could be had. In Day v. Railway Co., 42 Mich. 523, 4 N. W. 203, a brakeman, in stooping to couple cars, had his fingers injured by the coupling link, caused by lumber projecting beyond the end of the car, and it was held that the injury resulted from one of the risks incident to his occupation, and that no error was committed in taking the case from the jury. In Railway Co. v. Gower, 85 Tenn. 465, 3 S. W. 824, a brakeman, in coupling cars having been injured by lumber projecting beyond the end of the car, brought an action against the railway company for the damages sustained, and it was held that the risk, being necessarily incident to the business of railroad transportation, was assumed by him, and that no recovery could be had. In Railway Co. v. Shean (Tex. Sup.) 18 S. W. 151, an experienced switchman, having charge of an engine and its movements, undertook, without objection, to couple a flat car, with its load projecting over the end, to a box car, knowing the dangerous way in which it was loaded, and, having been injured in the performance of his duty, he brought an action to recover the damages sustained, but it was held that he had assumed the risk, and could not recover. For authorities to the effect that a brakeman in coupling cars on which the load projects beyond the end of the car assumes the risk incident to the service, see Ely v. Railway Co. (Tex. Civ. App.) 40 S. W. 174; Brennan v. Railway Co. (Mich.) 53 N. W. 358; Railway Co. v. Black, 88 Ill. 112; Scott v. Navigation Co., supra. The reason upon which the principle rests that material projecting beyond the end of the car is a risk ordinarily incident to the business of a brakeman is thus succinctly put by Mr. Justice Snodgrass, in Railway Co. v. Gower, supra, in which he says: "Lumber of all kinds, iron, steel, and

finished structures must often necessarily be transported on cars of shorter length than the material to be transported. It may not be practicable or proper to solidify the train by loading upon connected cars, and it must, of necessity, result that this loading will project, and still the cars require to be coupled. To hold that such a service is not to be anticipated by a railroad employé as an occasional, incidental, though extremely hazardous duty to be performed, would be to do so in manifest disregard of the demands of the age upon transportation lines, and their common and well-understood service in conformity to such requirements." It is contended by plaintiff's counsel that this rule has no application to material which, when carefully loaded, would not extend beyond the ends of the car, and that, the car in question being of the same length as the rails which were loaded thereon, no necessity existed for any projection of the rails, and that such extension, caused by the shifting of the rails, was not an ordinary risk incident to the business of coupling cars, and hence the court erred in not submitting the cause to the jury. In Corbin v. Railway Co., 64 Minn. 185, 66 N. W. 271, a brakeman in the defendant's employ having been killed while coupling cars, one of which was loaded with steel rails that projected over the end of the car due to careless loading or resulting from displacement while in transit, the administrator of his estate brought an action to recover the damages sustained, and, having secured judgment therefor, the company appealed. The evidence showed that the brakeman knew that the rails projected; that he saw the conductor who had charge of the train uncouple the car in question by stooping below the rails, and was cautioned by him to "look out for that car, as the rails stick over"; that the deceased stooped and made the coupling, but raised his head a second too soon, and a trifle too high, whereupon he was immediately pinned against the adjoining car by the extended rail. It also appeared that material of this character often shifted in transit, and when it extended so far as to interfere with the adjoining car its transportation became dangerous, and it was the custom to reload the car or to side-track it for that purpose; and that, the conductor having knowledge of the condition of the rails on the car, the company had notice thereof, and it was held that the court could not say as a matter of law that the defendant was not negligent in permitting the car to remain in the train, and that the question of the brakeman's contributory negligence was properly submitted to the jury. Mr. Justice Collins, in speaking of the extension of the rails, says: "It is to be remembered that this is not a case where, from the size or shape of the articles carried, they must of necessity project over one or both ends of a ear, as will heavy sticks of timber, or heavy castings, or threshing machines, but it is a

case where the load is capable of being placed so that no part of it will extend beyond the deck of the car; and that, if the ends of the rails do project, it is because of careless loading, or is the result of displacement in transit; and, further, that such displacement is not an uncommon occurrence,-in fact, according to defendant's witnesses, it is to be expected. It is also to be noticed that, according to these same witnesses, whenever such material projected so far as to endanger an adjoining car, it was customary to put the rails in place, either by moving them by hand, or by pushing them back, using heavy timbers and a locomotive,-‘butting' them, as one witness expressed it." In that case no question of assumption of risk was considered, the decision being put upon the alleged negligence of the defendant and the contributory negligence of the plaintiff's intestate. In Scott v. Navigation Co., supra. the plaintiff, a brakeman, having been injured in coupling a car loaded with iron rails that extended over the end of the car, secured a judgment against the defendant for the damages sustained, in reversing which Mr. Justice Thayer, in speaking of the plaintiff's employment as an experienced switchman and car coupler, says: "When he engaged in the company's service in that capacity, he assumed all the ordinary risks incident thereto; and, unless the company subjected him to unnecessary danger, it was not liable. This was the gist of the action, and he had no right to have his case submitted to the jury without first proving that the company did subject him to extraordinary risks in the affair, and that his injuries were received as the direct consequence thereof." The decision, however, seems to rest upon the principle of contributory negligence, the majority of the court holding that, as the plaintiff had the right to inspect the car in question, and to refuse to couple it if he found the load thereon dangerous, and not having reported to the foreman in charge of the defendant's yard the condition of the car, he was not free from negligence, nor was the defendant guilty of such negligence as rendered it liable, and that a judgment of nonsuit should have been given. Mr. Chief Justice Lord, in a dissenting opinion, intimates that the rails having shifted on the car in transit was an unusual occurrence, and created an extraordinary risk.

It will be remembered that the defendant is not engaged in operating a line of railway, but in receiving and switching cars, and in coupling them up into trains. The size of its yard, and the length and number of its tracks, are not disclosed by the evidence; and while the care demanded of it in the performance of its business is commensurate with the danger incurred, the same degree of care cannot, upon principle, be required of it as is exacted of a railway company engaged in general transportation business, in which case its trains are moved upon sched

ule time necessitating hasty coupling and uncoupling of cars at stations, whereby brakemen have not the opportunity for careful observation of the instrumentalities with which they are engaged, nor the time for deliberate action, which switching in a terminal yard affords. In the latter case, the danger incident to coupling cars evidently being less imminent, what might be considered as an extraordinary risk in the coupling of cars at a way station on the line of railroad, where hasty action on the part of the brakeman is demanded, would not be so regarded in coupling cars in a terminal yard. The evidence shows that iron rails shipped on flat cars usually shift in transit, and that a car upon which they have been displaced in this manner can only be coupled safely by the brakeman stooping below the projecting rails and allowing them to pass over his head when the cars come together. The shifting of the rails being usual, the risk incident to coupling cars on which such load has shifted is ordinary, particularly so in a terminal yard. The plaintiff's intestate was an experienced switchman and car coupler, and that he must have seen the protruding rails and been conscious of the danger to which he was exposed is evident from the location of the injury, which conclusively demonstrates that he was stooping, as necessity demanded, when he attempted to make the coupling. We think, as to the service demanded of him, that the risk was ordinary, and one which he assumed on entering upon the discharge of his duty, and, this being so, no error was committed in granting the nonsuit.

It follows that the judgment is affirmed.

(29 Colo. 317)

MEDANO DITCH CO. v. ADAMS. HUDSON et al. v. SAME. (Supreme Court of Colorado. Feb. 3, 1902.) WATERS AND WATER COURSES-SOURCES OF STREAMS-APPROPRIATIONS INJUNCTION

ADEQUATE REMEDY-EVIDENCE-SUFFICIENCY-APPEAL.

1. In an action to restrain the diversion of waters claimed by appropriations antedating those of defendant, evidence that the streams through which the parties claim their appropriations are embraced in a certain water district, wherein was a statutory adjudication of the water rights awarding priority of specific volumes of water to plaintiff, prior to defendant's appropriation, is sufficient to sustain a finding that plaintiff's appropriation antedated defendant's.

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2. Defendant appropriated water from stream which plaintiff claimed was the source of the streams from which he claimed prior appropriations. The stream from which defendant's appropriation was taken flowed southwesterly until intercepted by sand hills, into which it disappeared in the direction of the sources of plaintiff's streams. The streams from which plaintiff's appropriation was taken arose out of the western side of such sand hills, and their sources, which were 3 and 7 miles, respectively, from where defendant's stream disappeared, were in the direction therefrom of the general drainage of the country. Wit

nesses testified to the existence in former years of a well-defined channel from the place where such stream disappeared near to the sources of plaintiff's streams. The flow and character of the water in the defendant's stream were reflected in those of plaintiff, and there was no other source from which such streams could be reasonably presumed to have been supplied, and there was no other known outlet to defendant's stream. Held sufficient to sustain a finding that the stream from which defendant appropriated water was the source of the plaintiff's streams.

3. Where defendant is appropriating water from a stream which is the source of streams from which plaintiff has a prior right of appropriation, injunction is the appropriate remedy, as an action at law would be inadequate.

4. A complaint in a suit to restrain an appropriation of water from a stream which plaintiff claimed to be the source of streams on which he had a prior appropriation, alleging an adjudication of water rights in the water district in which the streams are situated, and an award to the ditches through which plaintiff claims such rights, states a prima facie case, since Civ. Code, § 65, provides that in pleading a judgment of a court of special jurisdiction the facts conferring jurisdiction need not be averred, but such judgment may be stated to have been duly made.

5. A defect of parties must be raised by demurrer or answer, and, if objection is not so taken, it is waived under provisions of Civ. Code, § 55.

6. Where, in a suit to restrain appropriations of water, plaintiff pleads an adjudication in another county of the water rights in the 'water district in which the streams are situated, the fact that the adjudication proceedings were in such other county does not preclude the court from assuming jurisdiction, since such action is not a statutory proceeding to adjudicate water rights.

7. In a suit to restrain appropriations of water, a decree is not objectionable as unqualifiedly prohibiting the diversion of water between specified dates, as the law reads into the decree that the inhibition only covers the period that plaintiff has use for the water. Steele, J., dissenting.

On Rehearing.

Failure to assign error on the admission in evidence of a decree is a waiver of an objection to such admission.

Appeal from and error to district court, Saguache county.

Consolidated actions by George H. Adams, trustee, against the Medano Ditch Company, and same plaintiff against Joshua B. Hudson and others. There were decrees in favor of plaintiff, and defendant in the former case appeals, and defendants in the latter bring error. Affirmed.

Appellee and defendant in error commenced separate actions below for the purpose of obtaining a decree enjoining appellant and plaintiff's in error from diverting water from Medano creek. Plaintiff in each case was the same party, and claimed to be the owner of appropriations of water for the purposes of irrigation from Big and Little Spring creeks, which antedated any appropriation on the part of the defendants from Medano creek; that the latter was the source of supply of Big and Little Spring creeks, and, by the diversion on the part of defend

ants from Medano creek, the supply to which plaintiff was entitled and needed was diminished, to his damage. The court found these issues in favor of plaintiff, and entered decrees enjoining the defendants in each case from diverting any water from Medano creek from May 15th to October 1st of each year. From these decrees the defendant in the one case appeals, and in the other the defendants bring the case here for review on error. By agreement of parties the causes were tried below upon practically the same testimony. The issues of fact and questions of law involved are the same in each case, and will be considered together. The parties will be referred to in the opinion as plaintiff and defendants.

The following is a plat of the premises in question:

Henry Hunter, J. C. Gunter, and John A. Gordon, for appellant and plaintiffs in error. Walcott, Vaile & Waterman (W. W. Field, of counsel), for appellee and defendant in

error.

GABBERT, J. (after stating the facts). The first proposition advanced by counsel for defendants is that the testimony does not establish an appropriation by plaintiff of the waters of Big and Little Spring creeks which antedates the diversion of the waters of Medano creek by them. If the rights of plaintiff in this respect depended solely upon testimony to establish an actual application of the waters of Big and Little Spring creeks for the purposes of irrigation, this proposition might have some force. Such, however, is not the case. In each of his complaints

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