the said Daniel C. Rowell's donation land claim in the county of Polk, state of Oregon.' The fourth item of the will of John S. Martin, executed the same date provides as follows: "I give and devise to my daughter Sarah A. Stout, subject to the life estate of my said wife, all my right, title, and interest in and to the following described real property: The 70-acre tract of land conveyed to me by James McCain, Sr., and wife, on the 22d day of October, A. D. 1867, by deed of that date, which is recorded at p. 595, of vol. 9, of the records of deeds of Polk county, Oregon, and being a part of the Daniel C. Rowell donation land claim in said county and state; also all my interest in the tract of land conveyed to John S. Martin and Maria A. Martin, his wife, by George W. Graves and wife and D. P. Stouffer, on the 13th day of February, A. D. 1880, by deed of that date, which deed is recorded at page 122 of Book 13 of the records of deeds of Polk county, Oregon, and being a part of the D. C. Rowell donation land claim in said county and state. I also give and bequeath to my said daughter, Sarah A. Stout, $600 in money, subject to the said life estate of my wife. This $600 in money is given to my daughter in order to make her share of my estate equal to that of the individual shares of my other children." * * That at the time the deed was made to John S. Martin-I could not give the date-she told me she had $5,000 in money and accounts, and she had been letting Mr. Martin have money. Mr. Martin gave me to understand that they had fixed the papers just as she wanted them, and the property was deeded to him. Q. Did you know about Mrs. Martin making a will about eight or nine years prior to her death? A. They made a will. She told me they had, and Mr. Martin told me they had; that there was a will made. Quite a long time before the deed was made, they were talking the matter over, they were thinking of changing the will and were going to dispose of their property." That the reason the deed was made to Martin was because they wanted to distribute all their property, and that they could dispose of it better by its being in one name than each one dividing it separately. * This testimony is very unsatisfactory, and is largely the opinion of the witness, and is not sufficient upon which to decree a trust, and as to money owned by Maria Martin or coming to the hands of John S. Martin is indefinite and unreliable. Mrs. Martin made a will on July 14, 1898, in which she gives each one of the children $5, and all the rest of her real estate to her husband unconditionally. She said that it was always their purpose to dispose of their property-not particularly hers. There is no evidence tracing her money into the hands of John S. Martin, or any contract or agreement in relation thereto. On this trial plaintiffs seem to take the will of John S. Martin, of date March, 1906, as evidence of a partial execution of a parol agreement to create a trust in regard to the estate and as evidence of it, but that will only disposes of the homestead and $2, Thus it appears that they were both aiming to make an equal distribution of their estates. Subsequent wills were executed by both; and about January 23, 1906, with the mutual understanding, as shown by the testimony, that the distribution of the property could be more equally made if it were all in the name of one, the mother conveyed all her real estate to the father; such understanding being presented to us only by the testimony of interested witnesses. Stout testifies that she said the former will did not fit the property now. The deed is a plain war-000 of his money to Mary E. Baker and Sarah ranty deed without condition, except that Agnes Stout, the plaintiffs, and no reference it retains to the wife the rents and profits of is made to any agreement. Before John S. the land while she lives. Soon thereafter, Martin made his last will, the situation was about March, 1906, John S. Martin made a greatly changed, caused by his marriage to will in which he made an effort to treat all a second wife, and in his last will he athis children impartially. We find this will tempted to make provision for his wife in only as a copy of the stenographer's notes case she survived him. If he had not done made of it at the time. In that he wills to so, the statute gives to the wife half of the plaintiff Mary E. Baker, after the death of real estate and half of the personal property his wife, the south half of the remaining un- of which he dies seised, and he seems to have sold part of the donation land claim of J. S. had knowledge of this dower right. The Martin and wife; no mention being made of proof tends to show that the widow has althe 27-acre adjoining tract. This is the south ready relinquished her right under the will, half of the north half of the donation land and is now seeking to recover her dower. claim. He willed her also $1,000 out of the Plaintiffs' recovery of the property sued for proceeds of any personal property or money in this case would take largely from the other remaining after the death of his wife. To heirs and reduce their part to an amount Sarah A. Stout he devised and bequeathed much less than plaintiffs', and make the disthe north half of the said part of the dona- tribution of the property of Martin and wife tion land claim remaining unsold and $1,000 to the children very unequal, which was at out of the proceeds of any personal property no time the intention of the mother, as inor money remaining after the death of his dicated by the conversations and conduct of wife. D. Stout, a witness for plaintiffs, says the children. Mrs. Stout, in addition to the that plaintiff Sarah A. Stout is his wife. He half of the donation land claim given her by testifies to the fact that John S. Martin re- the terms of the present will of John S. ceived property from Mrs. Martin, and says: Martin, gets also the undivided half of the "I know Mrs. Martin frequently got money. Hamilton place referred to as the Fuqua She owned farms. She told me she rented them, Mill, alleged to be worth about $600, and Mrs. and got the rent. rented for about 23 years, Baker is given one-fourth of the proceeds of come from the places she told me, was hers., the sale of about 50 acres of the Fletcher She had those farms * and the in on the main track and ran against plaintiff's engine, in violation of signals. Plaintiff had no knowledge that the defective engine would be moved from the passing track. Held, that plaintiff did not, as a matter of law, violate a rule of the company requiring engineers, while plaintiff, in leaving his engine to make the reswitching, to remain on the engine, and whether pairs, was guilty of negligence was for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092–1132; Dec. Dig. § 289.*] 3. MASTER AND SERVANT (§ 296*)—INJURY TO SERVANT-NEGLIGENCE-INSTRUCTIONS. farm, of the dwelling in Dallas, worth about | charge of the defective engine moved the engine $1,600, and of the rest and residue of the estate, real, personal, and mixed. The appraisement of the estate shows that there is personal property to the value of $8,695, of which $2,695 is included in the disposition of article 13 of the said will of John S. Martin; also, the 27-acre tract for which plaintiffs contend is included in that ítem. There is no proof of a part performance of the parol agreement to create a trust sufficient to take the case out of the statute of frauds; neither does the evidence of the alleged part performance show that such acts were in fulfillment of a parol agreement. The evidence fails to show that the property or any of it was obtained by John S. Martin by fraud. The evidence of the agreement is not sufficiently definite and cannot operate to establish a trust. Therefore we conclude that it was not the intention of the mother to control the distribution of part of her estate to plaintiffs to the exclusion of the other children except as a part of an equal distribution of the property of both of them, and that the facts testified to and other proof in regard to the trust are not sufficiently specific and definite to create a trust. Neither is the evidence of trust sufficient to take the case out of the statute of frauds. The decree is affirmed. a collision while on the ground repairing his In an action for injuries to an engineer in engine, so as to enable him to complete his run, an instruction that, if the engineer got off his engine while a switching movement was being had, he violated a rule of the company, and, if he could have avoided the injury by obeying the rule, he was guilty of negligence, as a matter of law, sufficiently gave effect to a rule requiring engineers to remain on the engine while switching and was sufficiently favorable to the company. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*] 4. TRIAL (§ 260*)—INSTRUCTIONS-REFUSAL OF INSTRUCTIONS COVERED BY THE CHARGE GIVEN. Where, in an action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act. April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. 1913, §§ 8657-8665]), for injuries to an engineer in a collision, the court charged that if the en MCBRIDE, C. J., and MOORE and BEAN, gineer did what a prudent engineer would not JJ., concur. (74 Or. 307) PFEIFFER v. OREGON-WASHINGTON R. proximate cause of the injury, the verdict must have done, or failed to do what a prudent engineer would have done, under the circumstances, he was guilty of negligence, and, if the acts of other employés of the company were not the be for the company, and, if the engineer's negligence was alone the cause of the accident, the (Supreme Court of Oregon. Dec. 15, 1914.) verdict must be for the company, the refusal to charge that, if the accident was solely caus1. EVIDENCE (§ 177*)-SECONDARY EVIDENCE-ed by the engineer's violation of a rule of the ADMISSIBILITY. & NAV. CO. Under L. O. L. § 712, providing that there shall be no evidence of the contents of a writing other than the writing, except when the original cannot be produced with proper diligence, and its absence is not owing to neglect, and section 782 requiring that the original writing be produced and proved, except as provided in section 712, an engineer suing for injury in a collision, who shows that he received a work order which he had not seen since the accident, but that he served a demand on the railroad company to produce orders issued to him and his conductor on the date of the accident, and that the company did not produce the order, may prove the contents thereof. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 557, 570-579; Dec. Dig. § 177.*] 2. MASTER AND SERVANT (§ 289*)-INJURY TO SERVANT-VIOLATION OF RULES EVIDENCE. Plaintiff, an engineer, directed to pick up a defective engine at a passing track and tow it to a station, was informed by the engineer of the defective engine that it was dead. Plaintiff then informed the engineer that he would come in and get the engine. Plaintiff thereafter directed his brakeman to cut off his engine from the train on the main line, and then passed several hundred feet beyond the switch of the passing track, and while working on his engine to enable him to complete his run, with a torch placed on the step of the pilot, the engineer in company, he could not recover, and if partly caused by his act he could not recover full damages, was not erroneous because the requested instruction was in substance given. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. § 260.*] 5. MASTER AND SERVANT (§ 289*)-INJURY TO SERVANT CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. Whether an engineer injured in a collision was guilty of contributory negligence, and the extent to which the contributory negligence, if any, contributed to the injury, held, under the evidence, for the jury. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*] 6. MASTER AND SERVANT (§ 289*)-INJURY TO SERVANT-FEDERAL EMPLOYERS' LIABILITY ACT-CONTRIBUTORY NEGLIGENCE. Contributory negligence is, under the federal Employers' Liability Act, only a partial defense, so that it is necessary in a case, otherwise proper, to submit the issue of contributory negligence to the jury, so that the same may be compared with the negligence of the employer and the damages awarded in proportion to the negligence of the parties, and the right of the court to declare the employé's guilt of contributory negligence, as a matter of law, should only be exercised where it is plain from all the evidence that only the conclusion of contributory | force and violence that plaintiff's engine No. negligence could be reasonably deduced. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*] 7. MASTER AND SERVANT (§ 219*)-INJURY TO SERVANT-ASSUMPTION OF RISK. A servant employed to repair a defective appliance assumes the risks obviously incident to the work, and he cannot complain of the appliance being defective. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. 219.*] 8. MASTER AND SERVANT (§ 216*)-INJURY TO SERVANT-FEDERAL EMPLOYER'S LIABILITY Аст. Where an engineer, directed, while operating an interstate train, to tow to a station a defective engine on a passing track was injured by the negligence of the engineer in charge of the defective engine in operating it in violation of rules and signals, the railroad company was liable, though, under the federal Employers' Liability Act, the company was not liable for injuries caused by the defective condition of the engine while running the same to a place for repairs. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 567-573; Dec. Dig. 216.*] 9. TRIAL (§ 253*)—INSTRUCTIONS IGNORING EVIDENCE. A requested charge, which ignores evidence on an issue or fails to allow the jury to determine the issue from all the evidence, is properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 613-623; Dec. Dig. § 253.*] 10. MASTER AND SERVANT (§§ 110, 111*)-INJURY TO SERVANT FEDERAL EMPLOYERS' LIABILITY ACT. Under the federal Employers' Liability Act, a railroad company is liable for injury to an employé resulting from a defect or insufficiency, due to its negligence, in its cars, engines, and appliances. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 214, 2142, 215-217, 255; Dec. Dig. §§ 110, 111.*] In Banc. Appeal from Circuit Court, Union County; J. W. Knowles, Judge. Action by H. M. Pfeiffer against the Ore gon-Washington Railroad & Navigation Company. From a judgment for plaintiff, defendant appeals. Affirmed. This is an action for negligence under the federal Employers' Liability Act. A verdict was rendered in favor of the plaintiff, and, from a judgment entered thereon, the defendant appeals. The gist of the alleged negligence of the defendant is that one J. W. Hampson, an engineer of the defendant, recklessly, carelessly, and negligently moved engine No. 533, in his charge, from its position on a passing track, without any headlights, without blowing the engine whistle, without ringing any bell, and in defiance of a stop signal given him by lantern light by an employé of the defendant; that he ran said engine in and upon the main line of the defendant against the engine of which the plaintiff had charge, and upon which he was working, with such 544 was driven forward, the cylinder thereof It appears from the record that the evidence tended to show substantially the following circumstances: On May 22, 1913, the defendant was operating a train called "Extra 533 West," which was in charge of Engineer Hampson and Conductor King. This train had orders to run from Pendleton to Umatilla. Upon arriving at Pilot Rock Junction, four or five miles west of Pendleton, a defect appeared in the engine, by reason of which sufficient steam pressure could not be secured to complete the run, and the crew were compelled to go on a passing track. They phoned the dispatcher at La Grande for help. Another train, known as "Extra 544 West," was operated by the defendant in the same direction and was in charge of Engineer Pfeiffer, plaintiff, and Conductor Carney. This latter train was running to Umatilla under orders received at La Grande. At Pendleton, between 9 and 10 o'clock p. m. of May 22d, Conductor Carney received a message from the defendant's dispatcher directing that their train receive engine 533 and tow it to Umatilla. The train in charge of Hampson and King consisted of an engine and caboose. After receiving this order, Pfeiffer's train proceeded west to Pilot Rock Junction and stopped at a point opposite and about 50 or 75 feet from the Hampson engine. Fulton, the brakeman, who was riding on the engine from Pendleton, got out of the cab, and by direction of Pfeiffer went back and cut off the latter's engine from his train, signaling him forward. When his train was cut off, plaintiff discovered that the box of the engine truck was hot and blazing. He ran his engine about 275 or 300 feet west of the switch of the passing track where the ground was suitable, stopped the engine, set the brakes, and stepped down to give the hot box necessary attention. Fulton dropped off at the switch and lined the same for the passing track. Pfeiffer applied a stream of cold water through a hose fastened by a wire to the oil box to cool the same in order that he could make his run. In doing this, it was necessary for him to get down on the ground on one knee in front of the engine cylinders and drive wheels to make the fastenings; his position being immediately above the rail and in the rear of the pilot. A lighted torch which he carried was placed on a step For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes of the pilot. The plaintiff asserts that engine No. 533 was on the side track east of where he was doing this work and in plain view of his engine and torch. Brakeman Fulton, who threw the switch, walked up the passing track to engine 533 and ascertained that it had some steam and could come out onto the main line. Seeing the engine of plaintiff standing on the main line west of the switch and the torch burning, Fulton signaled Hampson to move engine 533 onto the main line through the switch. The plaintiff had no knowledge of this signal to move No. 533 from the side track. As soon as Hampson had cleared the switch on the main line, and when he was about 200 feet from where plaintiff was at work, Fulton signaled him to stop. Hampson failed to obey this signal and conducted his engine forward past the block or danger signal and against the engine of plaintiff with such force that he broke the coupling knuckle and pin and drove plaintiff's engine forward several feet, forcing the cylinder against the plaintiff's back and the wheel over his left arm, throwing him to the ground and injuring him. C. E. Cochran, of Portland, and T. H. Crawford, of La Grande (A. C. Spencer and W. W. Cotton, both of Portland, and Crawford & Eakin, of La Grande, on the brief), for appellant. R. J. Green and F. S. Ivanhoe, both of La Grande, for respondent. BEAN, J. (after stating the facts as above). [1] It is first assigned that the trial court erred in permitting the plaintiff to testify to the contents of a work order sent to him from La Grande, directing that engine 533 be taken from Pilot Rock Junction to Umatilla. The defendant claims that no proper founda tion was laid as a basis for secondary evidence. In regard to this, plaintiff asserted that while at Pendelton he received an order concerning what he should do at Pilot Rock Junction; that after he got hurt he left his orders in the engine; and that he had not seen that order since. It was disclosed that a demand was served upon the defendant to produce the orders issued to the plaintiff and his conductor on the date of the accident. All the train orders were furnished by defendant, and plaintiff examined the same. The order in question, being a "work order" and not a "train order," was not contained in the package. A request made to defendant's counsel for a copy of the order elicited the information that the defendant did not have such copy. Whereupon, over the objection and exception of defendant's counsel, plaintiff was permitted to state from memory formation therein that engine 533 was "dead." Section 782, L. O. L., requires the original writing to be produced and proved, except as provided in section 712. We think the evidence shows the question to be embraced within that part of the provisions of section 712, L. O. L., which is as follows: "There shall be no evidence of the contents of a writing, other than the writing itself, exthe original cannot be produced by the party cept in the following cases: (2) When by whom the evidence is offered, in a reasonable time, with proper diligence, and its absence is not owing to his neglect or default. It fairly appeared that the original document could not be procured by the plaintiff with proper diligence, and that the absence thereof was not due to his negligence or default. There was no error in overruling the objection. [2] It is next contended that the plaintiff violated rule No. 882 of the defendant company, which reads: "While switching, the engineman and fireman must remain on the engine. Exercise great others are making couplings, and give close care in handling engine while yardmen and attention to signals." Rule No. 26 of the company directs as follows: "A blue flag by day and a blue light by night, displayed at one or both ends of an engine, car or train, indicates that workmen are under or about it. When thus protected, it must not be coupled to or moved. Workmen will display the blue signals, and the same workmen are alone authorized to remove them." Among the rules of the company introduced in evidence are the following: "Rule 899. Engines must not be left without man in charge, except at designated places, and must not be left standing in such position as to block movements on adjoining tracks. Never allow engine to stand on main track unless properly protected under the rules." "Rule 901. Exercise caution and good judgment in starting and stopping trains to avoid violent or sudden movements which might cause discomfort or injury to passengers, or damage to property." of the violation of Rule 882, the plaintiff was The defendant contends that, on account guilty of negligence, as a matter of law, and that the court erred in not so charging the jury. The evidence of the plaintiff tends to show the following circumstances in addition to those above related: 533 on the passing track, plaintiff was told by When opposite engine Engineer Hampson that his engine was "dead er than hell." would "come in and get him." Pfeiffer then Plaintiff told Hampson he directed his brakeman to cut off his engine from the train on the main line, and passed west about 275 or 300 feet beyond the switch of the passing track. While Pfeiffer was "C. and E. Extra 544 West, Pendleton, Ore-working on his engine, as heretofore describgon: Engine 533 and crew is dead at Pilot ed, his torch was placed on a step of the Rock Junction. Pick them up and take to pilot on the right side looking west, and the Umatilla. L. D. I." block signal between his engine and the the contents of the order as follows: The controversy in regard to the contents switch displayed a red light. Fulton, the Instruction 23 (parts of defendant's requests 10 and 11): "There have been introduced in rules and regulations of the transportation deevidence, and are undisputed in character, the partment of the defendant which were in force on the day the accident in question occurred, and your attention is directed to the provisions of one of them as follows: 'No. 662. While switching, the engineman and fireman must remain on the engine.' * So I shall instruct you that, if you find that the plaintiff got off his engine while a switching movement was being had, then he has violated one of said rules, and, if he could have avoided injury by obeying said rule, then he is guilty of negligence, as a matter of law, and, if such negligence was the sole proximate cause of the injury, then plaintiff cannot recover. If partly the cause of the injury, then you must compare the same under the rules of law I shall give you hereafter." By instruction 23 the trial court plainly charged the jury that if the plaintiff got off his engine while a switching movement was being had he violated one of the rules, and if he could have avoided the injury by obeying said rule, then he was guilty of negligence, as a matter of law. The court gave full force and effect to this rule without any condition whatever. This instruction was as favorable to the defendant as could reasonably be expected. submitted to the jury as follows: gine 533, and, upon being informed by Hampson that his engine had steam enough to move out upon the main track, signaled him to move out over the switch, which Hampson did. As soon as he had cleared the switch, when about 200 feet from where the plaintiff was at work, Fulton signaled him to stop. It was the duty of the engineer to obey the signal, but Hampson failed to do so, and ran his engine forward past the block signal, which indicated danger, and against the plaintiff's engine with such force that it broke the coupling knuckle and pin thereof and drove the engine against the plaintiff, causing the injury. The plaintiff had no knowledge at the time that Fulton had signaled engine 533 to move from the side track. Under the circumstances of this case, we fail to see how the court, as a matter of law, could charge the jury that the plaintiff was guilty of negligence in getting down from his engine to attend to a hot box, a matter in the nature of repairs. It is shown that there was a cessation in the movement of the plaintiff's engine, and the same was stopped. The plaintiff had run farther west than necessary to clear the switch for another purpose, and was attending to an incidental matter. The plaintiff's attention at that time is not shown [4] Then it was asked by defendant's reto have been directed to the detail of switch-quested instruction 11a that the question be ing, but rather to the preparation of his engine for the contemplated completion of his run. The work of switching appears to have been taken up by Hampson, the other engineer. It is a grave question whether the plaintiff was at that time "switching," within the meaning of the rule. Suppose there had been a railroad tie or obstruction on the track at that place, could the court say, as a matter of law, that it would have been negligence on the part of the engineer to get down from his engine for the purpose of removing it? We think not. As to any instruction in regard to the meaning of the rules, they appear to be couched in plain language, and we fail to discover any necessity for an explanation thereof by the court to the jury. The questions arise as to the facts to which the rules may or may not apply, and not to the construction of the rules themselves. Their reasonableness and sufficiency were not in question, as in the case of Little Rock & M. R. Co. v. Barry, 84 Fed. 944, 949, 28 C. C. A. 644, 43 L. R. A. 349, cited by defendant's counsel. The jurors, as reasonable men, might draw from the evidence a conclusion different from that assumed by the position of defendant, and we think the matter of the alleged negligence of the plaintiff comes within the general rule and was a question of fact to be submitted to the jury. For the law bearing upon this rule, see instruction 19 (defendant's request 14, hereafter quoted). See, also, Cummings v. Wichita R. R. & Light Co., 68 Kan. 218, 74 Pac. 1104, 1 Ann. Cas. 708; 5 Thompson on Neg. § 5408. "If the accident was solely caused by the plaintiff's violation of said rule, then plaintiff cannot recover; if partly caused by plaintiff's act, then I instruct you that plaintiff cannot recover full damages, but your duty is to make comparisons hereafter stated; that is to say, if the act was partly caused by the negligent act of Engineer Hampson and partly by the plaintiff's act just mentioned, then these acts of negligence must be compared in the way which I will make plain to you in other instructions." The refusal to give the requested instruction is assigned as error. We see no fault in this portion of the request. Let us then examine the charge given to ascertain whether or not the same was given in substance if not in the exact language as requested. By instruction 19 (defendant's request 14) the court directed the jury as follows: "In this same connection you have no doubt observed from the testimony, as well as from the pleadings, that the plaintiff's participation leged to be negligent in character. in the transaction complained of has been alNow the plaintiff's negligence, if you find he was negligent, is defined in the same manner as that of dence that he did an act or number of acts the defendant. If you believe from the eviwhich a prudent engineer would not have done, or if he failed to do an act or number of acts which an ordinarily prudent engineer would have done under all the existing circumstances, having in view the probable danger of his receiving an injury, then I charge you that he is. with respect thereto, guilty of negligence; and if his acts, if any you find, were the proximate the acts, if any, of the defendant and its emcause of the injury, and if you further find that ployés were not the proximate cause of the injury, then it will be your duty to find a verdict for the defendant. And in this connection, if you believe from the evidence that plain[3] Upon this point the court charged the tiff's injury was caused partly by one or more jury as follows: of the negligent acts of the defendant, men |