67. Co-DEFENDANT IN CRIMINAL PROSECUTION EVIDENCE OF.-A defendant in a criminal case, both at the common law and under section 166, title 1, chapter 16, of the criminal code, is incompetent to testify for and on behalf of one jointly indicted with him, although the defendant offered as a witness is not on trial at the time. State v. Drake (Or.), IV, 574.

68. NEW TRIAL EVIDENCE OF ACQUITTED CO-DEFENDANT-DISCRETION.-Whether a new trial will be granted on behalf of a defendant convicted in a criminal case because a co-defendant tried at the same time and acquitted, or, upon severance, subsequently tried and acquitted, is a material witness for him, quære. Conceding, however, that it would be a matter addressed to the sound judicial discretion of the court below, and in a proper case ought to be allowed, the record here does not show an abuse of such discretion. Id.

69. EVIDENCE OF THE DEFENDANT'S MANNER AND CONDUCT WHEN ARRESTED, and comments upon the same made by a third person at the time, in the presence and hearing of the defendants, is admissible. People v. Shem Ah Fook (Cal.), I, 112. 70. WHETHER LEADING QUESTIONS SHALL BE ALLOWED TO BE PUT by the prosecution to its own witnesses is a matter of judicial discretion. Id.

71. REFUSAL TO STRIKE OUT THE TESTIMONY AS TO CERTAIN ADMISSIONS by the defendants, made after their arrest, while in the sheriff's office and in the jail, is not error, where there is nothing to show that such admissions were not voluntary. Id. 72. ADMISSIONS MADE BY ONE DEFENDANT IN A CONVERSATION with a third person are competent evidence against him on a trial of two defendants jointly for murder. Id. 73. EVIDENCE IS ADMISSIBLE IN A PROSECUTION FOR MURDER THAT THE DEFENDANT HAD IN HIS POSSESSION such an instrument as might have caused the wounds inflicted on the body of the deceased. People v. McDowell (Cal.), I, 478.

74. EVIDENCE AS TO THE PLACE WHERE THE DECEASED WAS SUPPOSED TO HAVE BEEN KILLED is admissible, merely for the purpose of locating the spot as a foundation for further examination. Id.

75. MOTIVE OF WITNESS EVIDENCE OF.-Where, on a prosecution for murder, a witness for the people has testified that he saw the deceased and the prisoner together, and on cross-examination stated that he had a motive for watching them, it is error for the court to allow the witness to testify, in answer to a question by the prosecution, and against the defendant's objection, as to what his motive was. And after testifying that his motive was the expectation of seeing a fight, because the deceased had told him that he had a difficulty with the prisoner, it is error for the court to refuse to strike out such evidence of a difficulty, or to caution the jury that the statement of the witness was not evidence of such difficulty. People v. Biddlecome (Utah), I, 691.

76. THE EXCLUSION FROM EVIDENCE OF AN UNAUTHENTICATED COPY OF AN Account OFFERED BY THE DEFENSE for the sole purpose of fixing a date, and thus corroborating the testimony of a witness, is not error. Id.

77. REFUSAL OF THE COURT TO CHARGE THE JURY THAT THERE IS NO EVIDENCE that the prisoner ever shot the deceased, or ever molested or premeditated shooting or killing him, or ever had any malice or ill-feeling against him, is not error, unless the evidence entirely failed to support such facts. Id.

78. WHERE A WITNESS HAS TESTIFIED TO A HOSTILITY TOWARD ONE OF THE PARTIES to the action, and has been permitted to detail the grounds of his hostility, the refusal of the court to permit such party to give evidence contradicting the statements of the witness as to such hostility, is not an abuse of discretion. Busby v. Carpenter (Wash.), I, 837.

79. MURDER-STRANGULATION EVIDENCE.-In a prosecution for murder caused by strangulation, a witness may be asked whether certain wounds found upon the neck of the deceased could have been produced by the hands of defendant. "Cornish v. Territory (Wy.), III, 89.

80. EVIDENCE OF CONVERSATIONS BETWEEN CONSPIRATORS-STRIKING OUT EVIDENCE, EFFECT OF.-All matters talked about between conspirators at the time the main subject of the conspiracy was discussed are admissible in evidence in a criminal prosecution against one conspirator for a crime growing out of the conspiracy, although such matters, if talked about at a different time, would have been inadmissible. Even if the admission of such evidence was erroneous, the error would be cured if the court struck it out and instructed the jury not to consider it. People v. Majors (Cal.), II, 580.

81. RES GESTE.-Statements by the deceased, made some days after the shooting, are but a narrative of a past transaction, and are incompetent. People v. Wasson (Cal.), II, 642,

82. PREJUDICE OF WITNESS.-On cross-examination it is incompetent to ask witness questions that will show that he entertains feelings of hostility and prejudice toward the party against whom he is called. Id.

83. EVIDENCE OF AN ACCOMPLICE IS SUFFICIENT TO SUSTAIN A CONVICTION of murder when the same is corroborated by evidence of an admission made by the defendant connecting himself with the killing of the deceased. People v. Zimmerman (Cal.), III, 59.

84. THE SAME-A WITNESS HAVING TESTIFIED TO SUCH ADMISSION could not remember the date on which it was made. Held, that the testimony of a constable to whom he had told what the defendant had said was admissible, not for the purpose of having the conversation repeated, but for the purpose of fixing the date. Id. 85. DUTY OF PROSECUTION TO CALL WITNESS PRESENT AT KILLING-MURDER.-The prosecution in a trial for murder must call every person who was present and witnessed the alleged homicide, if it is within their power, and a failure so to do is ground for reversal. Territory v. Hanna (Mont.), IV, 471.

86. CRIMINAL LAW-MURDER-EVIDENCE-REASONABLE DOUBT.-The evidence of the only witness who testified to the act of killing, or connected the defendant with the homicide, reviewed and held so contradictory and improbable as not to exclude every reasonable doubt of the defendant's guilt. Territory v. Adolphson (Mont.), IV, 474.

87. RECORD OF CONVICTION OF Murder, EvidENCE OF.-The record of conviction is admissible in evidence for the purpose of showing that the person convicted was implicated in a murder. Harris v. More et al. (Cal.), IV, 696.

88. DEFENDANT'S REPUTATION FOR PEACE AND QUIET, EVIDENCE OF.-The refusal of the court to allow a witness to answer a question as to the defendant's general reputation for peace and quiet, in a prosecution for a homicide, is not error, if the wit. ness has never heard such reputation discussed, or if such good reputation has already been established by a great number of other witnesses, and no evidence to the contrary is offered by the prosecution. People v. Moan (Cal.), III, 632. 89. RECALLING WITNESS-DISCRETION OF COURT.-Upon a review of all the circumstances: Held, that the court's refusal to permit the defendant to recall a witness who had already been on the stand twice was not an abuse of discretion. Id. 90. INSTRUCTIONS BY THE COURT CIRCUMSTANTIAL EVIDENCE. -Where defendant's counsel made attacks upon circumstantial evidence as a ground for conviction, and called the attention of the jury to certain cases found in books, where it was claimed innocent persons had been convicted upon circumstantial evidence, an instruction of the court cautioning the jury against attaching too much importance to such cases in connection with other and proper instructions concerning circumstantial evidence, is not error. People v. Shem Ah Fook (Cal.), I, 112.

91. REFUSAL OF THE COURT TO INSTRUCT THE JURY IN REFERENCE TO CIRCUMSTANTIAL EVIDENCE, "that it is not sufficient that the circumstances proved coincide with, account for, and therefore render probable the hypothesis sought to be established, but the hypothesis contended for by the prosecution must be established to an absolute moral certainty, to the entire exclusion of any rational probability of any other hypothesis being true," is not error. In such instruction the words "absolute moral certainty" are not synonymous with "moral certainty." People v. Davis (Cal.), I, 341.

92. WHEN A DEFENDANT IS A WITNESS IN HIS OWN BEHALF, the court may instruct the jury that in weighing his evidence they must consider the circumstances under which he testified, and his interest in the result. People v. Wheeler (Cal.), II, 70.

93. AN INSTRUCTION AS TO THE CREDIT THAT SHOULD BE GIVEN TO A WITNESS, and one that the same weight should be given to the testimony of defendant when corroborated as to that of any other witness, invades the province of the jury and is properly refused. People v. Pierson (Idaho), II, 809.

94 REOPENING OF CASE. After the testimony in a criminal case has closed, and the opening argument for the prosecution has begun, it is a matter of discretion with the court whether it shall allow the defendant to reopen his case, for the purpose of introducing evidence on his plea of once in jeopardy, as to which no evidence had been given. People v. Ross (Cal.), II, 291.

See ARREST AND BAIL, 6; APPEAL, 10, 11; INDIANS, 1-7; INSTRUCTIONS, 5, 27; JURY AND JURORS, 26; WITNESSES, 9.

NAVIGABLE STREAMS.

See NUISANCE, 1-17; WATER RIGHTS, 1–14.

DIGEST I-IV. 10

NEGLIGENCE.

1. INJURY CAUSED BY NEGLIGENCE OF FELLOW-SERVANTS.-The rule first suggested in Priestly v. Fowler, 3 Mee. & W. (1837), 1, that a master who has exercised due care and skill in the employment and retention of his servants is not responsible for an injury sustained by one of them in the course of his employment by the negli gence of another, however distinct the grade or different the labor of such servants, or how widely separated the locality of their several employments, is being modified by the course of judicial opinion and decision, so as to meet the ends of justice in cases since arising of corporations and others engaged in varied and widely extended operations under one nominal and invisible head, but in reality divided into separate parts or divisions, under the direction and control of local bosses, superintendents, or heads of departments, who, to all intents and purposes, represent and stand for the corporation with practically unqualified power to employ, direct, and discharge workmen, and to provide the necessary material and appliances for their convenient and safe employment. Gilmore v. Northern Pacific Railway Company (U. S. Cir. Ct., Or.), I, 455.

2. WHEN FELLOW-SERVANT STANDS FOR MASTER.-It seems well established that a master is responsible to his servant for an injury sustained by him without his fault, in consequence of the negligence of a fellow-servant: 1. When the latter, having authority over the former, orders him to do an act not within the scope of his employment, whereby he is exposed to a danger not contemplated in his contract of service, and he is injured in so doing; 2. Where the master has charged the latter with the duty of providing proper material and appliances for carrying on a work in which he is personally engaged with the former, or not, and by the negligence to do so he is injured. Id.

3. CASE IN JUDGMENT.-In February, 1883, the Northern Pacific Railway was engaged in constructing its road through western Montana, and had many gangs of men. numbering not less than fifty cach, at work on the line of the route, at from three to five miles apart, under the control and direction of foremen, or local bosses, with the power to employ and discharge, subject themselves to the control of a general superintendent and assistant, who passed along the route and inspected the camps at certain periods. Some of these gangs used giant-powder for blasting the rocks and frozen earth, and in such case the foreman was charged specially with the duty of handling the powder, and thawing it when frozen. The general superintendent was aware of the danger of thawing powder before a fire, and had given general notice not to do it, and provided a safe appliance, called a "heater," for the purpose, subject to the requisition of the local boss. The plaintiff was employed as a common laborer in one of these gangs where powder was always thawed without a "heater," before the fire, and while assisting in so thawing powder, by direction of the local boss, was injured by its explosion. Held, that the local boss, so far, stood in the place of the defendant, and that the neglect of the former to obtain and use the proper appliance for thawing powder, and his directing the plaintiff to assist in thawing powder without the security of such appliance, were wrongful acts, for which the defendant is responsible to the plaintiff so far as he was injured thereby. Id. 4. OWNER OF A MINE WHO WORKS IT IN A DANGEROUS BUT THE ONLY PRACTI CABLE MANNER is not liable for injuries to an employee caused by a fellow-servant in the course of the employment, if such employee had knowledge of the danger, unless the injury complained of resulted from the wrongful act, neglect, or default of the owner. Lopez v. Cent. Ariz. Mining Co. (Ariz.), I, 41.

5. NEGLIGENCE-WORK DANGEROUS IN ITSELF-MASTER AND SERVANT.-A railroad company, whenever it calls upon an employee to perform work under dangerous conditions, is bound to provide him with the ordinary means of protection; and its failure to do so is negligence, unless the right to have such means of protection furnished has been waived by the employee. O'Rorke v. U. P. R. R. Co. (U. S. Cir. Ct., Col.), IV, 203. 6. THE SAME ASSUMPTION OF RISK BY EMPLOYEE.-Where an employee has been ac customed to do such work day after day for several months, knowing the same to be dangerous, but without making complaint, or demanding the ordinary means of protection, it must be presumed that he assumed the risks of his employment, and if he is injured therein the company is not liable. Id.

7. WHERE A RAILROAD COMPANY HAS PROVIDED A PLATFORM ON ONE SIDE OF ITS TRACK on which passengers may alight, an attempt of a passenger to get off on the other side is not negligence per se. McQuilkin v. Central Pacific R. R. Co. (Cal.),

I, 479.

S. THE ACT OR OMISSION ON THE PART OF A PASSENGER, CLAIMED TO HAVE CONTRIBUTED TO THE INJURY complained of, must have direct relation to the act or omission charged to be negligence on the part of the carrier. Whether such act or omission was negligence, and whether such negligence was to any extent an immediate concurring cause of the injury, are matters to be decided by the jury. Id.

9. IF THE NEGLIGENCE OF THE PASSENGER CONTRIBUTED DIRECTLY OR PROXIMATELY TO THE INJURY COMPLAINED OF, no recovery can be had against the carrier, whatever may have been his negligence. It is not giving the defendant the benefit of this rule as to contributory negligence to charge the jury that the negligence of the plaintiff which contributed as a proximate cause to the injury, will prevent a recovery, provided the defendant has not been guilty of negligence. Id." 10. PLAINTIFF IN SUCH ACTION CAN NOT RECOVER IF HIS OWN WANT OF CARE or negligence in any degree contributed to the result complained of. It is no defense, however, if the plaintiff's act might have, or did, contribute to the injury. It must have been by his fault, not merely by his act. Lopez v. Central Arizona Min. Co. (Ariz.), I, 41.

11. RAILROAD-NEGLIGENCE-ESCAPE OF FIRE-LOCOMOTIVE.-A railroad company is not liable for damages caused by sparks emitted from one of its locomotives, if the same was in good order, properly constructed, and supplied with the best appliances in use to prevent the escape of fire, unless the sparks escaped through the negligence of the agents and servants of the company. Smyth v. Stockton & C. R. R. Co. (Cal.), III, 575.

12. RAILROAD INJURY TO HORSE AND RIDER-FAILURE TO FENCE ROAD.-Under section 485 of the civil code, a railroad corporation is liable for injuries inflicted by it on both a horse and the person riding it, when such injuries are occasioned, without negligence on the part of such rider, on a portion of such road which is not inclosed as required by such section. Hynes v. S. F. & N. P. R. R. Co. (Cal.), III, 99, 101.

13. Whether the Rider was GUILTY of contributory negligence, under the particular circumstances of this case, was a question for the jury. Id.

14. MASTER AND SERVANT-CONTRIBUTORY NEGLIGENCE.-A foreman of a mine, who has practically the entire charge of the working of the same, with authority to employ and discharge the workmen as he sees fit, can not recover for personal injuries resulting from an accident occasioned by defective machinery, when such accident could have been prevented by the employment of an additional hand; nor, when he assumes and continues in such employment, without objection, and with full knowledge of such defect in the machinery of the mine. Alexander v. Tennessee and Los Cerrillos Silver Mininy Co. (N. M.), III, 71. 15. BREAKING OF DAM-NEGLIGENCE-INSTRUCTIONS.-In an action for damages caused by the breaking away of a dam through the defendant's negligence, the court can not instruct the jury that the defendant's failure to have waste-water gates, or to constantly examine the dam, was negligence. Whether such facts constituted negligence was a question for the jury. Weidekind v. Tuolumne County W. Co. (Cal.), III, 376.

16. RAILROAD COMPANIES OWE A DUTY TO THEIR EMPLOYEES, TO KEEP THE TRACKS of THEIR RAILWAYS FREE from obstructions that would endanger the lives of the latter. The duty thus imposed is that of ordinary care, to be determined by the danger of the service, and proportioned to it, but such company neither warrants nor insures against defects. Wilson v. Denver, South Park & Pacific R. R. Co. (Col.), I, 595.

17. ALLEGATION THAT AN INJURY TO AN EMPLOYEE WAS OCCASIONED BY AN OBSTRUCTION OF THE TRACK does not make out a prima facie case of liability against a railroad company; but when it is further alleged that such obstruction was upon the track by reason of the negligence of the company, and that the employee was in the discharge of his duty, and exercising due care and skill at the time of the injury, such allegations are sufficient to constitute a prima facie case against the company. Id. 18. EXPRESS COMPANY IS LIABLE FOR LOSS RESULTING FROM THE FAILURE of its agent to seal a valuable package, if it were their custom so to do, or for negligence in receiving such package unsealed, and afterwards shipping it in such condition, if it were their custom not to receive such packages until sealed by the shipper. Nor can it escape from liability for such loss on the ground that it may have occurred on one of their connecting lines. Overland Mail etc. Co. v. Carroll (Col.), I, 281. 19. RAILROAD COMPANY MUST CONSTRUCT ITS WORKS, SUCH AS DITCHES FOR DRAINING WATER, with proper skill and care, having due regard to the features of the ground over which it passes, and must keep the same in repair; and it is liable for in

juries resulting to an adjoining owner of land from failing so to do, although such injuries do not happen immediately after the completion of the work. Davidson v. Oregon etc. R. R. Co. (Or.), I, 421.

20. EXPULSION OF PASSENGER-DUTY OF EXPELLED PASSENGER-CARE AND CAUTION REQUIRED OF.-A passenger expelled from a railroad car is not required to use the utmost care and caution to avoid injury; it is sufficient if he uses such prudent care as is reasonable under the circumstances. Whether it was prudent for a passenger, after his expulsion from a car, during which he received an injury, to walk to a place other than the nearest dwelling-house, is a question for the jury. Under section 487 of the civil code, the passenger expelled is under no duty to go to the nearest dwell. ing-house. Bland v. S. P. R. R. Co. (Cal.), IV, 78.

21. OWNER OF BUILDING-NEGLIGENCE-INJURY FROM AWNING.-An owner of a building who erects an awning thereon over a public street, or who allows an awning erected by a prior owner to remain, under a license so to do from the city authori ties, on condition that the same be securely fastened, is liable to any one who, without fault, is injured through the owner's neglect to keep the awning in repair. Such liability exists, although at the time of the injury the building was occupied by a tenant. Jessen v. Sweigert (Cal.), IV, 586.

22. ACTION FOR NEGLIGENCE-VARIANCE BETWEEN ALLEGATIONS AND PROOF.-In an action to recover damages for a fire alleged to have been caused by a defective flue, evidence that such fire was caused by the entire want of a flue is not a fatal variance, when it appears that the party objecting was not misled as to the meaning of the averment. Denver, South Park & Pacific R. R. Co. v. Conway (Col.), IV, 682. 23. NEGLIGENCE-ACTION FOR-INTEREST NOT ALLOWED. In an action to recover dam. ages for injury to property caused by negligence, interest on the value of the property injured or destroyed is not recoverable, as the same is not authorized by the statute. Id.

21. NEGLIGENCE OF RAILROAD, ACTION TO RECOVER FOR.—In an action to recover damages for a loss occasioned by the negligence of a railroad company, when the complaint therein is framed to recover on the common-law liability of the company, the defendant's negligence must be proved. If the plaintiff fails in such proof on the trial, he can not abandon the action as brought and claim a recovery under a statute which makes the company liable as an insurer against a loss such as the one suffered by him. Davis v. Utah S. R. R. Co. (Utah), II, 453. 25. CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS AS TO.-Whether a plaintiff has been guity of contributory negligence in placing his property, for the destruction of which an action is brought, in a house so constructed and situated as to be subjected to great risk through the ordinary operation of defendant's road, is a question for the jury. An instruction to the contrary, although erroneous, will not warrant a reversal, when it is evident that the jury disregarded it. Id.

26. ACT OF THE TERRITORIAL LEGISLATURE OF 1879, PROVIDING FOR THE SCALING OF Locs by the lumber inspector, is not within the inhibition of section 1889 of the revised statutes. Crawford et al. v. Cochrane et al. (Wash.), II, 784.

27. SALE OF LOGS BY AGENT WITHOUT SCALING.-A gratuitous agent for the sale of certain booms of logs, who sells the same without having them scaled by the lumber inspector, is guilty of gross negligence, and is liable to his principal for the damage caused thereby. Id.

28. EVIDENCE OF THE CONDITION OF THE REMAINS OF THE DECEASED is admissible in an action for damages for a negligent killing. Leahy v. S. P. R. R. Co. (Cal.), II, 693. 29. CONTRIBUTORY NEGLIGENCE INSTRUCTIONS-EXPRESSION OF OPINION BY JUDGE.In an action to recover damages for personal injuries, caused by the alleged negligence of the defendants, when the defense relied on is contributory negligence on the part of the plaintiff, and the evidence is such that the question of contributory negligence is properly submitted to the jury, it is error for the court to remark to the jury that he does not see how the facts alleged to constitute contributory negligence were unrea sonable, or something which an ordinary man would not do." Andrews v. Runyou (Cal.), IV, SI.

30. NEGLIGENCE CONTRIBUTORY NEGLIGENCE-Want of Care.—In an action to recover damages for negligence, the plaintiff can not recover if he contributed to the disaster by his own negligence, or want of ordinary care and caution, to such an extent that but for such negligence or want of care on his part the accident would not have happened. Colorado Central R. R. Co. v. Martin (Col.), IV, 563. 31. THE SAME RAILROAD COMPANY-MASTER AND SERVANT.-The plaintiff in error, in anticipation of an attack upon its train by robbers, provided breech-loading shotguns and ammunition for their defense. These guns were placed by the superin