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require the parties in good faith to state Williams v. Southern Pacific R. R. Co., 110 the matters and things relied upon so as to Cal. 457, 42 Pac. 974, it was held that, in inform the adversary of the issues to be tri- the absence of a plea of misjoinder, one ed, with a view of disposing of cases upon member of a copartnership may recover in their merits. It is with this object in view his individual name the whole amount due that courts must construe pleadings with ref- the firm of which he was a member. That erence to the Code, so that neither party may case was approved and followed as to the gain an unfair advantage over his adversary. same point in Ah Tong v. Earle Fruit Co., With the provisions of the Code cited before 112 Cal. 679, 45 Pac. 7. It would seem upon his eyes, the defendant cannot be allowed principle that if, in the absence of a plea to lull his adversary into repose, and, for of misjoinder, in abatement, an individual the first time, raise the point which was at as plaintiff can recover upon a liabilty due all times within his knowledge, but which he

a partnershp of which he is a member, a waived by not alleging in his answer. Hav- recovery could under like circumstances be ing remained silent when he should have bad against him as defendant upon a partInformed the plaintiff, he will be precluded nership liability due from a partnership of from speaking afterwards. The rule was

which he is one of the partners. A case the same at common law.

very much like the case at bar is Kerry v. In Rice v. Shute, 5 Burr. 2611, the judgment

Pacific Marine Co., 121 Cal. 564, 54 Pac. 89, of the King's Bench was given by Lord

66 Am. St. Rep. 65. The action was there Mansfield. On the trial evidence was given

brought against one of the part owners upon that one Cole, who had not been made de

a contract relating to the ship, which should fendant, was a partner of Shute, and there

have been brought against all the owners upon on motion of the defendant the lower jointly, and it was held that the action court gave judgment of nonsuit against the

would lie in the absence of a plea by the plaintiff. The nonsuit was set aside, and

defendant of the misjoinder of the other the court held that, as the defendant had

part owners. It would require a great deal not pleaded the matter in abatement, he had

of imagination to give a reason why, if & waived it. The above case was followed by

part owner of a vessel cannot claim a misChief Justice Marshall in Barry v. Foyles,

joinder because he has not availed himselt 1 Pet. (U. S.) 311, 7 L. Ed. 157. It was there

of it by proper plea in abatement, a member said: "If, therefore, the defendant fails to

of a partnership can under like circumstan.avail himself of the variance in abatement,

ces claim such misjoinder. when the form of his plea obliges him to give

We have examined the cases cited by de

fendant; and, while there are in many of the plaintiff a proper action, the policy of the law does not permit him to avail him

them expressions which tend to support his self of it at the trial. The course of deci

position, we do not think any one of them is sions since the case of Rice v. Shute has been

direct authority for the proposition contend

ed for by defendant here. The one upon 80 uniform that the principle would have been considered as too well settled for con

which most reliance is placed is McCord v.

Seale, 56 Cal. 264. It was stated there in troversy had it not lately been questioned

broad terms that the proof of a partnership by a judge from whose opinions we ought

contract would not sustain the allegation not lightly to depart." Rice v. Shute was again followed and approved by the Supreme

of the complaint as to an individual contract;

but the report of the case shows that the Court of the United States in Mason v. Eldred, 6 Wall. (U. S.) 231, 18 L. Ed. 783. The

answer contained, besides a general denial, opinion was by Judge Field, and it is there

"a separate defense of a partnership existsaid: "It is true that each copartner is bound

ing between the plaintiffs under the firm for the entire amount due on copartnership

name of McCord & Malone at the time of the contracts; and that this obligation is so far

alleged transaction between them and the de several that if he is sued alone, and does

fendant.” The case is decided upon the the • not plead the nonjoinder of his copartners,

ory that the point was properly raised in

the answer. The question of waiver is not a recovery may be had against him for the whole amount due upon the contract." In

mentioned in the opinion. 15 Encyclopedia of Pleading and Practice,

It follows that the judgment and order p. 98, the rule is stated as follows: "Where

should each be reversed; and it is so ordered. one partner is declared against, and nonjoind

We concur: KERRIGAN, J.; HALL, J. er is not pleaded in abatement, proof of a partnership contract is not a variance, as partnership obligations are to this extent re

(5 Cal. A. 702) garded as joint and several.” See, further,

HERCULES OIL REFINING CO. V. HOCKAbbott v. Smith, 2 W. Black. 925; Woodworth

NELL et al. (Civ. 345.) v. Spafford, 2 McLean, 168; Fed. Cas. No. 18,- (Court of Appeal, Second District, California.

June 7, 1907.) 020; Robertson v. Smith, 18 Johns. (N. Y.) 459, 9 Am. Dec. 227; Wilson v. McCormick, 86


CONSTITUTIONAL PROVISIONS. Va. 935, 11 S. E. 976; Smith v. Cooke, 31

Const. art. 12, & 3, providing that directors ad. 174. 100 Am. Dec. 58. In the cases of of corporations shall be liable for "all moneys embezzled or misappropriated" by the officers keeper, at the direction of Hocknell, in the thereof, etc., makes the directors sureties of of

name of W. H. Cannon (conceded to be inficers who are guilty of misappropriating corpo

tended for C. Walton Cannon): "To capital rate moneys, and the liability created is that of suretyship only.

account, 130,000 shares of the capital stock [Ed. Note. For cases in point, see Cent. Dig. of Hercules Oil Refining Company, two cents. vol. 12, Corporations, 88 1350–1355.]

See minutes of meeting of board of directors, 2. SAME.

11, 25, 1902. $2,600.00.” Hocknell procured An officer of a corporation having no au- the stock certificates from Cannon personally thority to sell stock, and having no stock belonging to the corporation to sell, and owning stock,

while in New York city at least as early as sold stock at 20 cents a share, and received the

June 15, 1903, and “when he returned from money therefor without accounting to the cor- the East" told the secretary of the company poration. He used treasury stock for which

that he (Hocknell) had bought the stock at he had paid 2 cents per share to make delivery on such sales. Held, that the directors of the

two cents a share and "turned in $2.000 for corporation were not liable for the officer's act the stock.” He did not say who he bought it under Const. art. 12, & 3, providing that the from, but the secretary (who was empowered directors of corporations shall be liable for all

to sell) testified that he considered he (the moneys misappropriated by the officers thereof, etc.

secretary) had sold the stock to Hocknell [Ed. Note.For cases in point, see Cent. Dig.

at two cents per share; that being the best vol. 12, Corporations, SS 1350–1355.]

price obtainable at the time, and because the 3. TRIAL-NONSUIT-WHEN A UTIIORIZED. company needed the money. He further testi

A nonsuit should be denied, where the evi- fied: "I felt I was doing the company a dence and the presumptions arising therefrom are legally sufficient to prove the material alle

favor to get two cents for the stock," and gations of the complaint, and in other cases it

that "there would soon be an assessment on should be granted.

the stock of 10 or 15 cents a share.” There (Ed. Note.-For cases in point, see Cent. Dig. was no transfer of any of the Cannon stock vol. 46, Trial, 88 332-314, 300, 373.]

to Hocknell on the books of the corporation. Appeal from Superior Court, Los Angeles In the latter part of 1902, or the first of County; D. K. Trask, Judge.

1903, Hocknell sold to Alexander Campbell Action by the Hercules Oil Refining Com- 25,000 shares of the capital stock of the Ilerpany against George Hocknell and others. cules Oil Refining Company and received From a judgment for defendants, plaintiff $5,000 cash therefor. On June 15, 1903, appeals. Affirmed.

Hocknell forwarded from Ocean Park three E. B. Drake and Jones & Drake, for appel- certificates of stock, one (No. 1,762) for 7,105 lant. A. M. Cates and Geo. A. Corbin, for

shares in the name of George Hocknell, two respondents

(1,718 and 1,719) for 10,000 shares in the

name of Walter Cannon. Later, September, TAGGART, J. This is an action to re

1903, three certificates in the name of Campcover from defendants, as directors of the

bell for 5,000, 10,000, and 10,000 shares, recorporation plaintiff, moneys of the corpora- spectively, were substituted for the original tion alleged to have been embezzled and mis

certificates. About the same time Campbell appropriated by an officer of the corporation purchased, Fred A. Pennell also bought from during the term of office of said directors.

Hocknell 1,000 shares, for which he paid The officer who was charged with the misap

$200 cash, and by letter dated at Ocean Park propriation (defendant Hocknell) was not

on June 15, 1903, received a certificate for it before the court, but the other defendants

in the name of George Hocknell. Later, on appeared and defended, and, as to them,

September 10, 1903, he received a certificate and each of them, the court granted a motion in his own name in lieu of the Hocknell one. for a nonsuit. Plaintiff appeals from the

Thomas B. McPherson, on October 25, 1901, judgment and presents a bill of exceptions

bought 6,250 shares of stock from George on the ruling of the court granting the non

Hocknell and paid him $1,250 for them, and suit.

again on the 23d day of January, 1903, made The charge against Hocknell, as president, another purchase of a similar amount for rests upon the following facts, to wit: On the same price. The first certificates of stock November 25, 1902, the board of directors sent to him were in his name and bore date of plaintiff adopted a resolution authorizing September 3, 1903. Each block of stock was and empowering the defendant B. L. Vick- paid for on the date of its purchase. Mr. rey, as secretary of the company, to sell and J. W. Hupp bought 10,000 shares of stock dispose of all the remaining treasury stock from Hocknell, and paid $2,000 cash for of plaintiff (being 130,000 shares of the par

them, but does not give the date of purchase. value of $1 per share). at the best price ob- The stock certificate was issued in his name tainable in the market. November 26, 1902, and received about September 6, 1903. The 13 certificates (Nos. 1,718 to 1,730, inclusive) circumstances appear to justify the inferof said stock for 10,000 shares each, were is- ence that this purchase was made about the sued to C. Walton Cannon, a broker in New same time that Campbell and Pennell purYork city, and forwarded to him for sale. chased. All of these purchasers bought froin He did not sell any of the stock, but under Hocknell and knew nothing, apparently, of dath of August 31, 1903, an entry was made whether the stock purchased was treasury in the books of the company by the book- stock or stock belonging to Hocknell. The evidence does not disclose how much of the , October, 1901, payment by McPherson is apresidue of the 600,000 shares of the capital parently not included in the sums alleged to of the

. by Hocknell, either at the time of sale or Cannon stock was in New York city in the the time of delivery of the stock sold by hands of Cannon for sale, subject to the dihim. The books of the company show that rection of the secretary of the company. The the certificates for the 48..300 shares issued to first connection between Ilocknell and this these four purchasers in their respective

stock appears when he, on June 15, 1903, asnames in September, 1903, were all by trans- sumed to send two of the certificates therefer and cancellation of the Cannon certifi- for (1,718 and 1,819) from Ocean Park to cates to that amount, and that the residue

Campbell on account of the sales of stock of the 130.000 shares. 81,500 shares, was made to the latter about five or six months sold to one B. M. Frees. The latter sale is before. If Vick rey's fixing of dates is cornot material to this action. The time at

rect, the next is when he told Vickrey he had which the secretary accepted Ilocknell's dec- bought the Cannon stock, and the latter aclaration that he had bought the stock, as a cepted him as the purchaser thereof, after his sale thereof, is stated with much uncertainty

return from the East about July. The cirin the testimony. "Sometime in July, if I re

cumstances surrounding these transactions member correctly," and "after he returned

might justify a finding that the return menfrom the East with the stock,” cover Mr.

tioned was at least as early as June 15, Viekrey's recollection of the matter. The

1903, thus accounting for the stock being in letter from Ilocknell to Campbell shows he

Hocknell's possession on that date after he had the Cannon certificates at Ocean Park

had purchased it. Giving the inconsistency as early as June 15, 1903, and was assum

between the assumption of ownership of the ing to deal with them as his own. There

stock by Hocknell June 15, 1903, and Vickwas nothing on the books of the company until August 31, 1903, to show that he (or

rey's testimony that it was in July, all the any one else) had bought them.

consideration rationally possible, and it can

not to be said that the trial court should have It is admitted that the motion for a nonsuit was properly granted upon the first cause

done more than to hold for the purpose of the of action, which counted on a participation

nonsuit that Ilocknell took control of the Canof the other defendants with Ilocknell in

non stock as early as June 13, 1902. We find, the transactions complained of; but appel- then, that he sold stock of the Hercules Oil lant claims that there was a sufficient show

Company at 20 cents in January, and that ing made of the liability of the defendants

about five months thereafter he used the other than Hocknell, under section 3 of

treasury stock of the corporation, for which article 12 of the Constitution of the state

he paid but 2 cents per share to the company, of California, to avoid the granting of a

to make delivery on such sales. The date of the nonsuit as to such defendants on the second

purchase from the secretary was either in cause of action. The section of the Constitu

June or July, and some uncertainty exists as tion invoked merely makes the directors sure- to whether he made this purchase before or ties for their fellow directors and for the

after he had used the stock for the purpose officers of the corporation for “moneys,"

named. This stock was never registered in when so misappropriated as to make the

tlie name of locknell in the books of the officer misappropriating liable, and author- company, but transferred to Hocknell's venizes the croitors and stockholders to sue.

dees upon cancellation of the Cannon cer* The section is not penal in the tificates, and a record of the purchase of the technical sense, as it allows no recovery as

stock in Cannon's name did not appear upon a punishment, but only to compensate for a

the books until August 31, 1903. loss. But the liability created is that of Conceding that the lack of certainty in suretyship, in which the innocent always

the evidence as to the transactions from June suffers for the guilty, and therefore the

to September was sufficient to arouse a sussurety may always stand upon the very let- picion or put the company upon inquiry as to ter of his bond. For this reason the liability

these matters, there is no evidence to justify must be limited strictly to moneys misap

an inference that the money received in Janpropriated. Winchester v. Howard, 136 Cal. uary belonged to the company. At that time 444, 64 Pac. 692, 69 Pac. 77, 89 Am. St. Rep. the Cannon stock was in New York. Hock-' 153.

nell had no stock of the corporation to sell, The allegation of the complaint is to the and was not authorized to sell any on the effect that said defendant Hocknell did, on company's account. There was no stock beor about January 15, 1903, misappropriate longing to the company under his control that the sum of $8.730 of plaintiff's funds. The be could have fraudulently sold. The comevidence to support this shows that in the pany could not have been compelled to deliver latter part of 1.902, or the first part of 1903. any stock to make good these sales. There I locknell received from Campbell $5,000, from is nothing in the evidence to show that the l'ennell $200, and from Ilupp $2,000. That transactions were anything more than sale: le received $1.2.30 from McPherson in Octo- by Hocknell for future delivery made on his ber, 1901, and $1,230 in January, 1903. The own individual account. A misrepresentation

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to his purchasers as to the stock he had or, ed to show any misappropriation of money was authorized to sell would have been a belonging to the plaintiff by Mr. Hocknell, fraud upon them, and not upon the company, and the nonsuit was properly granted. and the taking of funds so received' would Judgment affirmed. not have been a misappropriation of moneys of the corporation. There is not a scintilla We concur: ALLEN, P. J.; SIIAW, J. of evidence from which the inference can be reasonably drawn that when the sales were made in January Hocknell expected to ac

(5 Cal. A. 748) quire the Cannon stock to make delivery

HIGGINS et al. v. LOS ANGELES RY. CO. therefrom on these sales. If there were, the

(Civ. 357.) transaction would have been good as to the company, if it be shown that Hocknell paid (Court of Appeal, Second District, California.

June 18, 1907.) the full value of the stock at the time of purchase. The transactions as to the stock


ION. after Ilocknell's return from the East appear

The reasons assigned by a trial judge for from Mr. Vickrey's testimony to bave been bis conclusions upon the final determination of carried out in good faith, and the company's

a case embodied in an opinion constitute no part interest properly looked after, and the full

of the record on appeal, and, though such an

opinion may be cited and referred to in arguvalue of the stock at the time of sale ob- ment as a means of assisting the court in reachtained. Even the burden put upon account

ing a correct solution of the questions submiting trustees was fairly met, and this all ap

ted, a proper ruling will not be disturbed be

cause the court reaches its conclusions by erropears as part of plaintiff's case. Mr. Vick

neous reasoning. rey's testimony was uncontradicted and was [Ed. Note.-For cases in point, see Cent. Dig. entitled to, and no doubt did, receive full vol. 3, Appeal and Error, $ 3408.] weight and credit from the trial court in 2. SAME — RECOBD-INSUFFICIENT PRESENTAgranting the defendants' motion for a non


Supreme Court rule 29 (78 Pac. xii), requirsuit.

ing appeals from superior court orders, that the A nonsuit may be granted by the court, papers and evidence used on the hearing of a upon motion of the defendant, when upon the motion for new trial to be authenticated by

incorporation in a bill of exceptions, etc., protrial the plaintiff fails to prove a sufficient

vides the only method by which affidavits used case for the jury. Code Civ. Proc. $ 581,

on a motion for new trial may be presented on subd. 5. The rules as to nonsuit are the same appeal from the order on the motion. whether the trial is by the court or by a jury. [Ed, Note.-For cases in point, see Cent. Dig. Freese v. Hibernia Sav., etc., Soc., 139 Cal. 392,

vol. 3, Appeal and Error, 8 2416.] 394, 73 Pac. 172. The motion admits the

3. SAME-REVIEW-CONCLUSIVENESS OF FINDtruth of all the plaintiff's evidence, and every


A finding on conflicting evidence will not be inference of fact that can be legitimately disturbed on appeal. drawn therefrom, and the evidence should be (Ed. Note.-For cases in point, see Cent, Dig. interpreted most strongly against the defend- vol. 3, Appeal and Error, 8 3983.] ant. Goldstone v. Merchants', etc., Co., 123 4. STREET RAILROADS-INJURY TO PERSON ON Cal. 625, 56 Pac. 776; Hanley v. California,


Decedent was guilty of contributory neglietc., 127 Cal. 232, 59 Pac. 577, 47 L. R. A.

gence barring recovery for his death, where at 597. Whatever facts relevant to the issue night he attempted to cross a street railway the evidence tended to prove on plaintiff's track in front of a moving car, when it was behalf must be regarded as proved (Ferris visible, and the gong ringing.

from 8 to 15 feet distant, the headlight plainly 1. Baker, 127 Cal. 520, 59 Pac. 937), and the

(Ed. Note.-For cases in point, see Cent. Dig. sufficiency or insufficiency of the evidence vol. 44, Street Railroads, $ 207.) tending to sustain plaintiff's case cannot 5. APPEAL-REVIEW-HARMLESS ERROR. be considered (Zilmer v. Gerichten, 111 Cal. Any error in excluding testimony was cured 77, 43 Pac. 408). All of these shadings of

by its admission afterwards. the rule, we think, mean simply that a non

(Ed. Note.-For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, $ 4200.) suit should be denied where the evidence,

6. SAME. and the presumptions reasonably arising

In an action for a pedestrian's death caused therefrom, are legally sufficient to prove the in collision with a street car, any error in exmaterial allegations of the complaint, and

cluding evidence for plaintiff as to the car's

speed was harmless, where the death resulted that it should be granted where they are not.

from contributory negligence. Goldstone v. Merchants', etc., Co., supra. To

[Ed. Note.--For cases in point, see Cent. Dig. avoid a nonsuit, the evidence of the plaintiff vol. 3, Appeal and Error, $ 4187.) must be sufficient to raise more than a mere 7. TRIAL-INTRODUCTION OF EVIDENCE — REsurmise or conjecture that the fact is as al- BUTTAL.

Where, in an action for the death of a leged. It must be such that a rational,

pedestrian attempting to cross a street car well-constructed mind can reasonably draw track at night, plaintiff offered testimony as to from it the conclusion that the fact exists. the absence of signal lights at the place, at the Janin v. London & S. F. Bk., 92 Cal. 27, 27

close of defendant's case, it was not error to ex

clude similar testimony; the evidence being not Pac. 1100, 14 L. R. A. 320, 27 Am. St. Rep. 82.

in rebuttal, and no reason being given tending Measured by these rules, the evidence fail- to appeal to the discretion of the court, nor ex. cuse given for not offering the testimony when an opinion may be cited and referred to in the other was given.

argument, and thus be the means of assisting [Ed. Note.--For cases in point, see Cent. Dig.

the court in reaching a correct solution of vol. 46, Trial, 8 151.]

the questions submitted; but a proper ruling Appeal from Superior Court, Los Angeles will not be disturbed because the court reachCounty ; G. A. Gibbs, Judge.

es its conclusions by a process of erroneous Action by Linna A. Higgins and others reasoning. "If this court finds that upon any against the Los Angeles Railway Company. ground or for any reason the action of the Plaintiffs appeal from a judgment for de- court below was correct, such action will be fendant. Affirmed.

affirmed, regardless of the reason which the A. D. Warner and Ansel Smith, for appel

court may have given for it." White v. Merlants. Bicknell, Gibson, Trask, Dunn &

rill, 82 Cal. 14, 22 Pac. 1129; Schwerdtle v. Crutcher (Norman S. Sterry, of counsel), for

Placer County, 103 Cal. 589, 41 Pac. 418. respondent.

The affidavits cannot be considered on ap

peal from the order denying the motion for a SHAW, J. On the night of December 6,

new trial, because they are not incorporated 1904, John T. Higgins, while crossing Central

in a bill of exceptions as required by rule 29 avenue at its intersection with Sixth street

of this court (78 Pac. xii), which provides: in the city of Los Angeles, was struck by an

"In all cases of appeal from the orders of the electric street car operated by the Los Angeles

superior courts, the papers and evidence used Railway Company, receiving injuries which

or taken on the hearing of the motion must be caused his death on the following morning.

authenticated by incorporating the same in His widow in her own right and as adminis

a bill of exceptions, except where another tratrix of his estate, and also as guardian

mode of authentication is provided by law.” ad litem of his minor children, instituted this

The law provides no other mode. Hence, action against said railway company to re

their incorporation in a bill of exceptions is cover damages claimed to have been sustained

the exclusive method of presenting such affion account of his death. Judgment was

davits to this court for its consideration upon rendered for defendant, from which, and an

an appeal from an order denying a new trial. order denying a motion for a new trial, plain

Skinner v. Horn, 144 Cal. 278, 77 Pac. 904. tiff prosecutes this appeal.

The affidavits in question, as printed in the The complaint charges that the death of

transcript (after title of court and cause) the deceased was due to the negligence of said

are entitled: "Affidavits of A. D. Warner, railway company in making and leaving un

Linna A. Higgins, Joseph Tilley, on Motion protected certain excavations along its tracks

for New Trial." And are indorsed "Used on at the intersection of said Central avenue

Motion for New Trial. G. A. Gibbs, Judge." and Sixth street, into one of which excava

Following these affidavits there is printed in tions said liggins stepped while attempting

the transcript a counter affidavit entitled, to cross said avenue in the nighttime while

"Affidavit of Geo. A. Gibbs on Motion for New the same was unguarded by signal lights

Trial," with a like indorsement. While it and in the absence of any warning as to its

is reasonably certain that these affidavits dangerous condition, and from which he was were used at the hearing of the motion for a unable to extricate himself before being new trial, it does not appear that such affistruck by a car operated over the track at

davits were the only ones so used. Shain v.. said point at a high, dangerous, and reckless

Eikerenkotter, 88 Cal. 13, 25 Pac. 966; Spreckrate of speed, and thereby received injuries

els v. Spreckels, 114 Cal. 60, 45 Pac. 1022; which caused his death. The answer is a

Melde v. Reynolds, 120 Cal. 234, 52 Pac. general denial, with an allegation that the

491. death of said Higgins was due to his own

Counsel for appellant, while contending in carelessness and negligence, which directly

a general way that the evidence is insuffcontributed to the collision which caused his

cient to justify the findings, does not direct death.

our attention to any specific finding thus unThe transcript contains certain affidavits supported, or point out wherein the evidence which purport to embody the opinion of the is insufficient. His argument is directed to a trial judge, delivered orally at the close of

vigorous attack upon what he terms the the trial. It is claimed that these affidavits

"system of ratiocination" by means of which incorporating this opinion were used in sup- the learned trial judge arrived at his conport of the motion for a new trial, and the clusion in deciding the case. As we have reasoning of the trial judge in determining

seen, this "system" is not a subject of review the case in favor of respondent is assigned as by this court. error and here strenuously urged as a ground The court, in effect, finds that the excavafor the reversal of the order denying appel- tions made by the defendant in repairing its lant's motion for a new trial. The reasons track were not large, deep, or dangerous; assigned by the trial judge for his con- that defendant placed lights at each excavaclusions upon the final determination of a tion to warn travelers of its presence; that case constitute no part of the record on ap- defendant was not negligent in making or peal. However erroneous the reasoning may leaving said excavations, nor in the manner be, error cannot be predicated thereon. Such | of placing its lights to warn persons of the

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