to persons coming in contact with them, and hence the negligence of the defendant is equally as great, if not greater, than if the danger had been from insufficient or want of insulation. The apparently perfect insulation was calculated to deceive, and to cause one unfamiliar with the facts to suppose the wires safe. It acted as an invitation to persons at work in and among the wires to risk the consequences of contact therewith. And such was the effect in this case. But for the insulation, and the belief of safety caused thereby, it is not at all probable that the deceased would have exposed himself to the risk of a contact with the wires in question. The defendant, however, knew that the insulation afforded no protection, and yet, with knowledge of that fact, put its wires in a place where the servants of the railway company might come in contact with them while in the performance of their duties, and without giving any warning or notice of the danger whatever. Under such circumstances a jury would certainly be justified in finding that it did not exercise due care and caution in so doing. Electric companies, of course, are not bound to have perfect apparatus or perfect construction, but they are required to exercise a degree of care and prudence in the construction and maintenance of their wires commensurate with the danger; and where their wires are designed to carry a strong and powerful current of electricity, so that persons coming in contact with them are certain to be seriously injured, if not killed, the law imposes upon the company the duty of exercising the utmost care and prudence to prevent such injury; and whether such care has been exercised in a given case is ordinarily for the jury. Crosw. Electricity, § 234.

to the plaintiff to maintain an effective insulation at the place where he was injured, where he was not sent to work, and where he had no right to be. The same is true of the case of the boy who was killed by coming in contact with the wire of an electric company while searching on top of a building for a lost ball. Sullivan v. Railroad Co., 156 Mass. 378, 31 N. E. 128. In both cases the injured party was a trespasser, and at a place where he had no right to be, and where the company was under no obligation to protect him from injury. But in the case at bar the deceased was rightfully at the place where he was in jured. In McMullen v. Illuminating Co. (City Ct. Brook.) 34 N. Y. Supp. 248, the defendaut company had disconnected its service wires, carrying a low current of electricity, which could not cause death or great bodily harm, from the distributing wires in the cellar, eight feet above the ground, in order that the owner might make certain repairs, but failed to "tape" the ends of the wires, and it was held that it was not liable for an injury to a workman while engaged in making such repairs, because no reasonable person would, under the circumstances, have anticipated "that any person would have entered the cellar, mounted upon a box, and, after seeing these wires, taken hold of at least two of them at a time, in such manner as to make a short circuit, and bring the wires into contact with his hand in the same place, and thus burn his hand." In Burk v. Electric Co. (Sup.) 35 N. Y. Supp. 313, the evidence shows that the deceased deliberately chose a way of known danger to go from one part of a cellar to another, when a perfectly safe way was open to him, and the court held that he must take the consequences of his own hardihood.

It only remains to notice briefly the assignments of error based upon the giving and The cases cited and relied upon by the de- refusal of instructions by the trial court. fendant are not in point in this contention. In The defendant requested in writing some 14 Beck v. Railway Co., 25 Or. 32, 34 Pac. 753; different instructions, which were refused, Stone Co. v. Hobbs, 11 Ind. App. 27, 38 N. except as given in substance in the general E. 538; Stone Co. v. O'Brien (Ind. App.) 40 charge. All of these, except one, present N. E. 430; and Flood v. Telegraph Co., 131 N. different phases of the questions already conY. 603, 30 N. E. 196,-the danger was open and sidered, and therefore require no further novisible, and could have been ascertained by the tice. By the eighth request the court was complainant if he had exercised his faculties. asked to charge the jury that, if they should In Hector v. Light Co., 161 Mass. 558, 37 N. find for the plaintiff, they could not estiE. 773, the facts are that a lineman of a tele- mate nor give exemplary or vindictive damphone and telegraph company was sent to at- ages nor any damages as a solatium for the tach a wire to a standard owned by the de- grief or anguish of the surviving relatives, fendant on the roof of a building. Instead or the pain or suffering of the deceased. of entering this building, and going out on And while this instruction embodies a corthe roof, he went up on a building some dis- rect principle of law, and might, with protance away, passed over the several inter- priety, have been given (Carlson v. Railway vening structures until he came to the building Co., 21 Or. 450, 28 Pac. 497), its refusal was adjoining the one on which the standard was not reversible error. Neither exemplary placed. While stooping down, to see how he damages nor damages for the suffering of could get from this building to the place of the deceased or any of his relatives were his destination, he came in contact with the asked in the complaint, nor, so far as the wires of the defendant company, and was in- record indicates, claimed at the trial. The jured by reason of the insulation being worn allegations of the complaint and the proof off. The case was decided in favor of the were confined to the earning capacity, habdefendant on the ground that it owed no duty | its, and probable length of life of the de

construction, inspection, and repair, so as to keep them harmless at places where persons are liable to come in contact with them. Crosw. Electricity, § 234; Haynes v. Gas Co., 114 N. C. 203, 19 S. E. 344; Railway Co. v. Conery, 61 Ark. 381, 33 S. W. 426; Giraudi v. Improvement Co., 107 Cal. 120, 40 Pac. 108; and authorities heretofore cited. The questions in this case are important, and many of them of first impression in this state, and therefore we have given to the case that consideration which its merits deserve; but, finding no error in the record, the judgment must be affirmed, and it is so ordered.

(33 Or. 451) PERHAM ▾. PORTLAND GENERAL ELEC TRIC CO.1

COSTS-WITNESS' FEES.

A party who is entitled to his costs may recover as disbursements the mileage and per diem of a material witness, residing in the state, who attended the trial at his request, but without having been served with a subpœna.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by W. T. Perham, administrator, against the Portland General Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.

ceased, and no instructions were given under which the jury could have understood that they had a right to consider any other matters in arriving at the amount of the verdict. By the instruction as given they were told, in effect, in assessing damages, if they found in favor of the plaintiff, to consider the earning capacity, habits, and probable length of life of the deceased, and thus determine what would probably have been his accumulations if he had lived the ordinary course of his life; and no question is made as to the soundness of this rule. The entire charge of the court as given seems to have been separated into paragraphs, in some instances without special reference to the context, and objections made and exceptions saved to the giving of each; and while the charge, which was given orally, is perhaps open to some criticism on account of the verbal inaccuracy of the language (Supreme Court of Oregon. April 18, 1898.) used, to which the attention of the trial court was not specially called at the time, it, however, in our opinion, exhibits no reversible error, but, when taken as a whole, fairly and accurately presents the law as applicable to the facts of this case. The definition of "negligence" as given is not open to the criticism made, nor did the court withdraw the question of plaintiff's intestate's contributory negligence from the jury, but told them expressly that what he had said in regard to the defendant's liability must be taken with the proviso that the plaintiff's intestate did not himself contribute by his own negligence to the injury from which he died, and then proceeded with the charge in detail on that phase of the case. The statement that the words "care" and "diligence," when used in reference to the duty of the defendant, are not absolute, but relative, terms; "that, when the danger is great, the care and vigilance to escape the consequence of danger must be proportionately great. In matters of this sort, where people are dealing with electricity (one of the most subtle, powerful, and wonderful agencies known to man; agency that is very destructive to human life, even when carefully and properly handled and treated),-I instruct you that in such a case as this due care would be the highest care and vigilance of which a man is capable, and which the condition of science makes known at the time. And this is the degree of care which was demanded of the company: to so conduct itself in regard to the wires on that bridge as that the diligence and care should be proportionate to the danger which there existed,"-is but, in effect, an application to the case in hand of the rule that the care demanded of electric companies must be commensurate with the danger, and that, where their wires are carrying a highly dangerous current of electricity, as is admitted to have been carried over the wires which caused the death of plaintiff's intestate, the law imposes upon the company the utmost degree of care in their

an

Richard Williams and Fred V. Holman, for appellant. W. W. Thayer and H. W. Hogue, for respondent.

BEAN, J. This is an appeal from a judgment of the court below in the matter of the retaxation of costs and disbursements in the above-entitled action, and the only question presented is whether a party who is entitled to his costs may recover as disbursements the mileage and per diem of a material witness, residing in the state, who attended the trial at his request, but without having been served with a subpoena. This question was decided in the affirmative in Crawford v. Abraham, 2 Or. 163, and again in Lumber Co. v. Garrett, 28 Or. 168, 42 Pac. 129; and, as the experience of more than 30 years has shown the rule to be a wholesome one, we do not feel authorized to disturb it at this time, although its soundness may perhaps be open to some question.

(120 Cal. 643)

KAHN v. WILSON. (Sac. 308.)
(Supreme Court of California. April 28, 1898.)
APPEAL-JUDGMENT ROLL-NEW TRIAL-QUES
TIONS IN REPLY BRIEF.

1. Notice of an intention to move for a new trial is not part of the judgment roll, and, in order to predicate error on the absence thereof, the record must affirmatively show that no notice was given.

2. New questions cannot be raised by an appellant in his reply brief, unless, upon leave of the court, for good cause shown.

1 Rehearing denied.

warrant us in disturbing the judgment herein. The judgment appealed from is affirmed. We concur: TEMPLE, J.; HENSHAW, J.

(120 Cal. 581) (S. F. 587.) April 9, 1898.)

TRUETT v. ONDERDONK. (Supreme Court of California. SETTING CASE FOR TRIAL-UNREASONABLE DELAY

-FRAUD.

1. Where consent to the dismissal of an action is filed, but no judgment of dismissal has been entered, the action is still pending; and on a subsequent motion for plaintiff to set the case for trial, supported by an affidavit in which plaintiff asks to be relieved from the obligation of his consent to a dismissal, the case may be set for trial.

2. Where, after an action begun to wind up a partnership and obtain a settlement, the parties agree, before trial, to abide by the decision of an arbitrator, and the plaintiff files his consent to a dismissal, a motion made by the plaintiff, 14 years afterwards, to set the case for trial on the ground of fraudulent representations made by his co-partner to the arbitrator, should be denied, if the evidence in support of the motion does not prima facie entitle the plaintiff to relief, or if the discovery of the alleged fraud could have been made sooner by the use of due diligence.

In bank. Appeal from superior court, city and county of San Francisco. J. M. Seawell, Judge.

Action by Miers F. Truett against Andrew Onderdonk. The action was dismissed, and plaintiff appeals. Affirmed.

Fox, Kellogg

contends that he has a right to have this statement considered on this appeal from the judgment under the provisions of section 950 of the Code of Civil Procedure. But that section merely provides that any statement "used on motion for a new trial" may be considered on an appeal from a final judgment. In the case at bar it does not appear that any motion for a new trial was ever made or passed upon by the court; and therefore it does not appear that the statement printed in the transcript was ever used on motion for a new trial. It does not come within the provision of said section 950, and on this appeal we can look only to the judgment roll. The judgment roll makes a very meager presentation of the case, and it is somewhat difficult to discover what the points upon appeal are. But the court found that each of the defendants had been in the actual and adverse possession of the portion of the land claimed by him, asserting the title thereto, and holding it against all the world for more than five years before the commencement of the suit; and there is nothing in the record which shows this finding to be erroneous. It seems that the respondents originally claimed under certain decrees of distribution and partition, and appellant now contends that these decrees were invalid. But, whether or not these decrees were erroneous at the time they were entered, they certainly afforded the foundation for the acquisition under them by respondents of title by adverse possession, and we see nothing in the record to warrant us in overruling the finding of the court to that effect. The court also finds that in 1891 the present plaintiff, and others joined with her as plaintiffs, brought a suit against the defendants in this case to have it adjudged that they, the plaintiffs therein, were the owners and entitled to the possession of certain undivided interests in the land described in the complaint in the present action; that said action was determined against the plain-plaint specifying in detail a large number of tiff's therein; that on an appeal to this court the judgment therein was affirmed, and that the plaintiff herein was thereby estopped from maintaining this present action. That case, entitled "Gregory v. Gregory," is reported in 102 Cal., commencing at page 50, 36 Pac. 364, and from the record in the present case it is difficult to say what effect that decision had upon the case at bar. As an authority, however, it seems to have determined that the land in contest here does not belong to the estate of James Gregory, deceased, and that the present respondents have a good title to the land by adverse possession. But it is not necessary for the purposes of the present case to determine whether or not the decision in Gregory v. Gregory strictly estops the plaintiff from maintaining this action. We see nothing upon the face of the judgment roll in the case at bar-in view of the principle that all presumptions are in favor of the judgment-that would

T. M. Osmont, for appellant. & Gray, for respondent.

VAN FLEET J. This action was commenced on March 18, 1880, in the superior court of the city and county of San Francisco, to secure an accounting and winding up of the affairs of a partnership alleged to exist between the parties as contractors for the construction of sea walls, grading of railroads, filling in, extension, and widening of streets, and works of a similar character; the com

contracts for work of the character indicated as being in a state of completion or partial completion by said partnership, and alleging that a large sum of money was due plaintiff from defendant on account of such work. It was alleged that defendant had assumed and taken control of the work of said partnership, and all of the affairs thereof, to the exclusion of plaintiff; refused him access to, or an examination of, the books of the concern, or to further recognize him as a partner in the business; and, generally, as "wrongfully carrying on the said business without any regard to the rights of this plaintiff.” Summons was issued and served on the day the complaint was filed. Within a few days thereafter the parties came together, and entered into a written agreement for the settlement and adjustment of their difficulties, whereby it was mutually stipulated that, to avoid litigation and publicity in regard to their differences, the same should be submit