from the bill of exceptions that the defendants or Dr. Kuykendall, who adjusted the arm, were in doubt, as alleged.

6. Exception is taken to another, denominated the fourth, instruction, which reads as follows:

"A physician or surgeon making a specialty of the practice of surgery is not bound to use any greater skill, care, or diligence in the treatment of the case than a specialist in the same general locality in which said physician or surgeon resides and practices his profession."

The criticism here is that the skill, care and diligence required of defendants were such as are observed in like or similar localities. The qualification might have been made with propriety: Whitesell v. Hill, 101 Iowa, 629 (70 N. W. 750, 37 L. R. A. 830); Pelky v. Palmer, 109 Mich. 561 (67 N. W. 561); Gramm v. Boener, 56 Ind. 497; McCracken v. Smathers, 122 N. C. 799 (29 S. E. 354). The court, had, however in previous instructions so explicitly informed the jury that the degree of skill required would be such as was possessed by the average members of the profession practicing as specialists in similar localities, regard being had to the advanced state of medical science at the time, that they could hardly have been misled by the instruction in question. Indeed, it should be read with the preceding instructions, and when so read there was no error.

7. The next exception is to instruction numbered 5, as desig nated in the bill of exceptions, which reads as follows:

"Even though no instructions were given to the patient, he is required to exercise such ordinary prudence as would be expected of a person situated in his condition, and the failure on his part to exercise this prudence would prevent recovery."

This is a mere excerpt, and, to be properly interpreted, should be read with other directions of the court in charging the jury, both preceding and succeeding it. Immediately preceding is the following:

"There is something in the complaint in regard to the plaintiff having observed the instructions given by the defendants. He alleges that he did follow the instructions, and that his injury was without contributory negligence on his part. There is some evidence in this case tending to show that the arm appears as it did when the plaintiff left the hospital, while the defendants claim that the arm presents an altogether different

appearance. This is a matter for you to determine in the case, but the rule of law is that even though"-continuing in the language above set out, following which is this:

"If you find that the injury of which plaintiff complains was caused wholly or in part by his own acts of negligence, then he cannot recover. It is the duty of the patient to observe and follow the reasonable directions of his physician and surgeon. If the patient, after having been treated for some time by the defendants, upon going away from the place where the treatment had been given, was instructed by the defendants to return for further treatment, and was instructed by them in the proper care and use of his arm, and the plaintiff failed or neglected to return for treatment, and used his arm in a different manner than that directed by the defendants, these are facts for you to take into consideration, with the other facts of the case, in determining whether the plaintiff was not negligent."

The latter part of the instructions, commencing with the words "it is the duty of the patient," etc., is also excepted to. The basis of the exceptions to both these excerpts is that plaintiff's subsequent negligence, not contributing to produce the injury complained of, is not a ground of defense to the negligence of the defendants in the first instance, and at most it could only serve to mitigate the damages where its tendency was to enhance them. It is a good defense in an action for malpractice, where the physician or surgeon is charged with negligence or the nonobservance of proper care or the want of skill in performing the services undertaken, that the patient was negligent at the time, which conduced or contributed to produce the injury complained of; but it will not suffice to defeat the action that the injured party was subsequently negligent, and thereby conduced to the aggravation of the injury primarily sustained at the hands of the physician or surgeon, and such conduct on the part of the patient is pertinent to be shown in mitigation of damages only where enhanced thereby, but not to relieve against the primary liability: Cooley, Torts, 683; Sanderson v. Holland, 39 Mo. App. 233; Wilmot v. Howard, 39 Vt. 447 (94 Am. Dec. 338); McCracken v. Smathers, 122 N. C. 799 (29 S. E. 354); Hibbard v. Thompson, 109 Mass. 286.

8. Now, to come again to the instructions: They relate to the patient's observance of the directions given him by the

defendants. Of course, if he refused or failed to follow them, he could not complain if his negligence in that respect conduced to the injury. That is to say, if it prevented or retarded union or healing of the parts, for the directions were a part of the treatment prescribed, and a want of observance of them on the patient's part would defeat the action. It was in this connection that the court charged that the patient was bound to the observance of ordinary prudence, even without instructions from the surgeon. The want of ordinary prudence would be tantamount to negligence, and, if it was a contributing cause to the injury, the case would be within the rule. This much is conceded, for the court told the jury that if they should find that the injury of which the plaintiff complains was caused wholly or in part by plaintiff's own acts or negligence, he cannot recover, to which no exceptions were saved. Plaintiff does except, however, to what follows, but by reading the whole together, the purpose of the instructions is apparent. They were intended to advise the jury as to the effect of a nonobservance of the directions of the defendants in the treatment of his arm or of ordinary care and prudence, which was enjoined upon him without their directions, and there was no attempt to advise the jury as to any conduct of the plaintiff that might operate in aggravation of the injury of which he complains.

9. The court was not requested so to instruct, and we are not advised by the bill of exceptions that the question was in the case. There are no pertinent or sufficient facts set out in it to show the relevancy of such an instruction, and it is not for this court to survey the entire testimony to determine whether one should have been given.

Having examined the various assignments, and finding no error, the judgment of the circuit court is affirmed.

MR. JUSTICE BEAN took no part in this decision.

AFFIRMED.

Argued 5 April, decided 15 May, 1905.

STATE ↑. NEASE.

80 Pac. 897.

POOL ROOM AS PUBLIC NUISANCE-GAMBLING.

1. A pool room in which persons daily congregate to bet upon horse races reported to the proprietor by telegraph, is a gaming house, punishable as a nuisance at common law.

POWER OF CITY TO LICENSE POOL ROOM-CONSTRUCTION OF CHARTER. 2. A city which by its charter is authorized to prevent and suppress gaming and gambling houses is not authorized to make such places lawful by licensing them.

STATUTES-MAINTAINING POOL ROOM-NUISANCE.

3. Under B. & C. Comp. § 1930, providing for the punishment of persons who willfully and wrongfully commit any act which grossly disturbs the public peace or health, or which openly outrages the public decency, and is injurious to the public morals, it is not necessary, to constitute the offense. that there should be an actual breach or disturbance of the peace, or actual or threatened violence, but any immoral or criminal act which disturbs the quiet and tranquillity of society, to the injury of public order and decorum, or disturbs or threatens the public peace, and which would constitute a nuisance at common law, is within the statute, as, for example, maintaining a gambling house or pool room.

STATUTES-CONSTRUCTION OF AS AFFECTED BY NONUSER.

4. The fact that a penal statute has been on the statute books for over forty years, and has not been applied in a particular manner, does not preclude the application and enforcement of the statute in that manner if it may properly be so applied and enforced.

From Multnomah: ARTHUR L. FRAZER, Judge.

M. G. Nease appeals from a conviction of committing an act grossly disturbing the public peace by maintaining a pool room in the City of Portland. AFFIRMED.

For appellant there was an oral argument by Mr. Edward B. Watson and Mr. John M. Gearin, with a brief over the names of Watson & Beekman, Dolph, Mallory, Simon & Gearin, and William P. Lord, to this effect.

I. There are no common law offenses in this State, and no crimes except those named in the statutes: State v. Vowels, 4 Or. 324, 326; State v. Gaunt, 13 Or. 115 (9 Pac. 55); 6 Am. & Eng. Enc. Law (2 ed.), 290.

II. The prosecution seeks to make out its case by construing Section 1930 of B. & C. Comp. into an adoption or reenactment of the common law on the subject of indictable nuisance. This section does not make any reference in terms to the common law, nor employ any word descriptive of an indictable nuisance at common law, nor specify the elements of such offense at common law, and it is impossible to hold that the legislature, in

[28-46 Or.]

enacting the same, intended to restore the common law, without passing clear beyond any literal, or even probable, meaning of the words it has employed, which is not permissible under any rule for the construction of penal statutes.

The established rule does not allow the extension of words beyond their fair and reasonable meaning, nor permit any case to be brought within the statute "unless completely within its words": Bishop, Stat. Cr. (2 ed.), §§ 216, 220; State v. Mann, 2 Or. 238, 241.

The intention of the legislature to adopt or re-enact any provision of the common law against criminal offenses must be expressly declared in terms, or clearly implied from the employment of words having a definite and settled meaning in the common law; otherwise the statute can have no force or operation beyond the literal interpretation of its own terms. Criminal offenses cannot be created by construction: Sutherland, Stat. Const. § 253, 291, 350; Bishop, Stat. Cr. (2 ed.), § 220.

III. A"gross" disturbance of the public peace involves not only an actual breach of peace, but the commission thereof with more than an ordinary degree of force or violence, or under circumstances more than ordinarily calculated to produce fright or alarm Anderson, Law Dic. 761; 4 Am. & Eng. Enc. Law (2 ed.), 902; 2 Wharton, Crim. Law, § 1555; 1 Bishop, Crim. Law, $560; State v. Warner, 34 Conn. 276; Ware v. Branch, 75 Mich. 493 (42 N. W. 997, 1000); Peabody v. Peabody, 104 Mass. 195, 197.

Actual disturbance of the public peace was not an element of criminal nuisance at common law (2 Wharton, Crim. Law, $1465; People v. Sergeant, 8 Cow. 139, 141; State v. Layman, 5 Har. 510); and the "act which openly outrages public decency and is injurious to public morals" has uniformly been construed to include only displays of the naked person, the publication, sale or exhibition of obscene books and prints, and the like, containing the element of obscenity: Anderson, Law Dic. 534; McJunkins v. State, 10 Ind. 145; Knowles v. State, 3 Day, 103; State v. Rose, 32 Mo. 560; Gilmore v. State, 118 Ga. 299 (45 S. E. 787).