The Master Mechanics' Association, so far as was disclosed by the testimony of the witness Graham, was a voluntary association of individuals, formed for purposes of mutual benefit, and for the exchange of ideas. It does not appear from the testimony what officers it has, if any, nor whether it has an officer whose duty it is to keep a record of its proceedings. It does appear, however, that the association, as such, recommended the extension front end, and this was withdrawn from the jury's consideration by the ruling complained of. Presumably, the motion to strike was based upon the idea that there was written evidence of the proceedings of the association; but there is no evidence that this was the fact. So far as the court below or this court knows, there was no formal record of the proceedings, and certainly no obligation was imposed by law requiring one to be kept. That parol evidence is admissible in a case of this character, without regard to whether there is a formal record in existence or not, is well settled by the authorities cited.

II. Running at a high rate of speed is not a circumstance from which the jury might properly infer negligence: Thompson, Corporations, §§ 1873 and 2265; Louisville & N. R. Co. v. Marbury Lum. Co. 32 South. 745 (28 Am. & Eng. R. Cas., N. S., 68); Railroad Co. v. Ferguson, 79 Va. 241; Hagen v. Chicago, etc. R. Co. 86 Mich. 615; Western Ry. Co. v. Sistrunk, 85 Ala. 352, 358 (5 South. 79); Nashville R. Co. v. Hembree, 85 Ala. 483, 485 (5 South. 175); Perdue v. Railroad Co. 100 Ala. 539 (14 South. 366); Omaha & Rep. Val. R. Co. v. Talbot, 48 Neb. 627, 637 (67 N. W. 599).

III. The plaintiff must recover upon the ground of the particular acts set forth in the complaint: Normile v. Oregon Nav. Co. 41 Or. 177 (69 Pac. 928); Babcock v. Chicago & N. W. Ry. Co. 72 Iowa, 197 (33 N. W. 628); Gulf Ry. Co. v. Johnson, 67 S. W. 182.

For respondent there was an oral argument by Mr. John J. Ballery and Mr. John McCourt, with a brief to this effect.

1. What strange aberrations the human mind is capable of, or is it that counsel for defendant imagines this court to be afflicted with legal strabismus? Spellman said, that some chan

cellors had long consciences; that the chancellor's conscience was like the chancellor's foot; some had a long foot and some had a short foot, and we presume that it is the same with master mechanics. We refer to their knowledge and ability; not to their consciences. There is no law which authorizes them individually or collectively to bind us by anything that they recommend.

Counsel says that "parol evidence is admissible in a case of this character, without regard to whether there is a formal record in existence or not," and he says that this is well settled. Shades of Mansfield and Marshall! Parol evidence, or any kind of evidence! If there had been a resolution as long as the moral law, recommending the extension front end, it would not be admissible. Well settled to be admissible! Why, there is not a case in the books where anything of the kind has been admitted. No court would admit it.

All the cases cited by the defendant's counsel are cases where the voluntary association was a party. The evidence was offered as acts or declarations against the interest of the parties making them. It was evidence tending to show some contract or undertaking material to the controversy. Of course it was competent, but the question involved in the cases cited looks about as much like the question before this court as a bake oven looks like a threshing machine. We insist that there was no error in excluding that evidence and striking out the answer of the witness. As well might a railroad company try to prove that it is not a common carrier by a resolution of a lot of conductors, that they recommend that no railroad company be considered a common carrier, and that they do not consider them such. We have been unable to find a case directly in point, nor do we think any one ever attempted to introduce such evidence.

Now, those master mechanics, like Graham, if they recommended the extension front end, were simply voicing their opinions from what each had told the other, together, perhaps, with what they had learned from their own experience but how much was experience and how much was what somebody told them? Under such a rule the plaintiff would have no opportunity to

case.

ascertain. No such rule exists, and it would be most detrimental to the administration of justice if this court, or any other court of last resort, should make such a rule. The recommendations of no society, of any kind, or character, or resolution as to what is the best, or what is good or bad, has ever been admitted in any There are master mechanics' associations, associations of engineers, conductors, firemen, brakemen, physicians and surgeons, artists, stock raisers of every kind, wool growers and manufacturers of every description, and there is not one case in the books anywhere which ever has held that the recommendations of such associations are admissible in evidence, and the court knows, as a matter of fact, that such associations are eternally resoluting and recommending, and have been for centuries. If their resolutions or recommendations were evidence, some other older genius would have discovered it long ago: Rogers, Exp. Test., §§ 4, 5, 6, 13, 14, 20, 31, 43 and 45.

2. All the counsel's argument on the second assignment of error is based upon one expression. We submit that there was nothing in it. Then the counsel attempts to say that if there was evidence of running at a high rate of speed, that fact was not evidence of negligence, and he cites a lot of cases. They have nothing to do with the question before the court, and it is well settled, beyond any cavil, and has become text-book law, notwithstanding the great big capitals of the defendant's counsel, that running at a high rate of speed may be negligence. is passing strange that counsel should take the trouble to enunciate in capitals as a principle of law a statement which is diametrically opposed to what is the law, and it is deplorable that a bright young man should have so little regard for himself and a profession of which it has been said, "Of law no less can be said than that its seat is in the bosom of God-her voice the harmony of the world."

It

Negligence is always a question of circumstances and conditions. Running an engine at sixty miles an hour down hill, through snow banks in an open prairie country, or through Death Valley, where nobody lives, and there is nothing to be burned, would not be negligence. Running an engine up a stiff grade,

on a curve, with a heavy load, along a string of powder mills and houses, and through a populous city, at twelve or fifteen miles an hour might be negligence. Courts have never undertaken to say what would be negligence, as a general rule, leaving what would and what would not be negligence (as circumstances and conditions in each particular case must necessarily diverge from the circumstances and conditions of every other case at some point) to the circumstances of each case. Each one must be determined by the facts and conditions peculiar to itself: Koontz v. Oregon R. & Nav. Co. 20 Or. 3, 19 (23 Pac. 820); Gandy v. Chicago & N. W. R. Co. 30 Iowa 420, 422 (6 Am. Rep. 682); North Shore Co. v. McWillie, 17 Kan. 511; Kansas City, Ft. Scott, etc. R. Co. v. Chamberlain, 61 Kan. 859 (60 Pac. 15, 17); Martin v. Western Union R. Co. 23 Wis. 437, 439 (99 Am. Dec. 189); Brusberg v. Milwaukee, L. S. & W. Ry. Co. 50 Wis. 232; Wilson v. Northern Pac. Ry. Co. 43 Minn. 519 (45 N. W. 1132); Hochstedler v. Dubuque & S. C. Ry. Co. 55 N. W. 74; Thompson, Negligence, §§ 1873, 1874, and 1875; Elliott, Railroads, § 1244.

3. It is hard to understand what the fifth and sixth points made in defendant's brief are intended to signify, and no elucidation is given by an examination of the authorities cited. Counsel says that the plaintiff must recover upon the ground of the particular acts of negligence set forth in the complaint. That would seem to be self-evident, but no particular acts of negligence are set forth. The allegations are very general ones, which plaintiffs in such cases have a right to make, because they cannot know the particular defects or the particular acts of carelessness which caused the fire, those being peculiarly within the knowledge of the defendant, its servants, agents and employees. If counsel was not satisfied with the general allegations of the complaint concerning the negligence, carelessness and improper running and managing of the engine, his business was to ask the court to require plaintiff to make them more definite and certain.

4. The court was eminently correct in telling the jury that they might consider the kind of care and caution usually exer

cised by defendant's employees in charge of the engine which set the fire. What has the question as to identification of the engine got to do with that? What is the counsel trying to say? The question of the identity of the engine had nothing to do with this. The evidence of other fires by other engines the court excluded in this case; perhaps he was right. It was so palpable that those two engines set the fire that probably it was unnecessary to introduce cumulative evidence, and the court ruled it out. We can't conceive what counsel means by saying the engine in question having been identified, the kind of care and caution actually exercised had no relevancy. What difference does it make whether the engine was identified or not as to the care and caution which they used, as the kind of care and caution usually exercised by them would be matters which the jury would have a right to take into consideration in determining what kind of care and caution they used at the time of the fire, and it would not make any difference whether the engine was identified or not. We submit that there is nothing in any of the errors assigned, and that this case ought to be affirmed. There was absolutely no reason for bringing this case here. It is palpable that counsel, who is well known to be industrious and laborious, has examined into each question. He has not misread the authorities which he cited; he understands them well enough. The counsel is very bright, quite ingenious, and sometimes quite disingenuous, but the statute has provided for just such appeals as this, which are frivolous. Defendant's brief is here for the purpose, perhaps, of escaping the penalty prescribed by the State for bringing a frivolous appeal, but we must submit this was frivolous. It is not here in good faith, and we do think the court ought to impose the penalty of the statute, the addition of ten per cent, and we respectfully ask this court to so order.

MR. JUSTICE WOLVERTON delivered the opinion.

This action is to recover damages for loss occasioned by fire alleged to have been caused by the negligent operation and management of a freight train and certain engines used for propelling it. The plaintiff recovered judgment, and the defendant appeals. The errors assigned for reversal arise upon the direction of the