the time the conveyance was executed, were in respect to the subject-matter, and, as such, constituted part of the res gestæ, and were admissible in evidence. Wait, Fraud. Conv. (3d Ed.) § 276. Thus, as was said by Mr. Chief Justice Sherwood in Snyder v. Free, 114 Mo. 360, 21 S. W. 847: "And the declarations made by Mrs. Wing to the notary were evidence, because part of the res gestæ, and were evidence to show the intent of the grantor in executing the deed, as against her and all persons claiming under her; and those thus claiming property must take it subject to the infirmity attached to it by the conduct of the grantor." Mrs. Hamilton's answer avers that she was to have a home with her parents on the land which was conveyed to her mother whenever she so desired, and this allegation is not denied by her codefendants. Whether she availed herself of this provision of their agreement, and resided with them any part of the time, is not disclosed by the testimony; but that fact is unimportant, for, as she is their daughter, the law presumes that they were aware of her fraudulent intent, to rebut which the burden was imposed upon them to show that Mrs. Jones was an innocent purchaser for a valuable consideration, and without knowledge or notice of any intent by her daughter to hinder, delay, or defraud her creditors. Marks v. Crow, 14 Or. 382, 13 Pac. 55; Jolly v. Kyle, 27 Or. 95, 39 Pac. 999; Feldman v. Nicolai, 28 Or. 34, 40 Pac. 1010; Flynn v. Baisley, 35 Or. 268, 57 Pac. 908, 45 L. R. A. 645, 76 Am. St. Rep. 495; Mendenhall v. Elwert, 36 Or. 375, 52 Pac. 22, 59 Pac. 805. They offered no testimony to rebut the presumption which the law invokes when real property is conveyed by one intimate relative to another, the bona fides of which is attacked by creditors alleged to have been defrauded thereby; and the decree should be reversed unless plaintiff's judgment, which forms the basis of this suit, violates the rules of public policy, as being contra bonos mores.

"Public policy," says Mr. Justice Magruder in People v. Chicago Gas Trust Co. (Ill.) 22 N. E. 798, 8 L. R. A. 497, 17 Am. St. Rep. 319, "is that principle of law which holds that no subject or citizen can lawfully do that which has a tendency to be injurious to the public or against the public good." A court of equity will not lend its aid to enforce a contract growing immediately out of, or necessarily connected with, an illegal or immoral act. Buchtel v. Evans, 21 Or. 309, 28 Pac. 67; Ah Doon v. Smith, 25 Or. 89, 34 Pac. 1093; Bradtfeldt v. Cooke, 27 Or. 194, 40 Pac. 1, 50 Am. St. Rep. 701; Miller v. Hirschberg, 27 Or. 522, 40 Pac. 506; Live Stock Co. v. Gentry, 38 Or. 275, 61 Pac. 422, 65 Pac. 597; Oscanyan v. Arms Co., 103 U. S. 261, 26 L. Ed. 539. Thus, where a party purchases land of another at a price greatly less than its value, if not for the purpose of taking advantage of the vendor, at least for the purpose of enabling him to go out of the

state and avoid a prosecution for felony, a court of equity will not lend its aid to enforce a contract made under such circumstances. Dodson v. Swan, 2 W. Va. 511, 98 Am. Dec. 787. The test of a violation of the rules of public policy is whether the plaintiff requires the aid of the illegal transaction to establish his right; for, if he cannot open his case without showing that he has transgressed the law, a court will not assist him. Morris' Run Coal Co. v. Barclay Coal Co., 8 Am. Rep. 159; Nester v. Brewing Co. (Pa.) 29 Atl. 102, 24 L. R. A. 247, 41 Am. St. Rep. 894. "If a plaintiff," says Mr. Justice Duncan in Swan v. Scott, 11 Serg. & R. 155, "cannot open his case without showing that he has broken the law, a court will not assist him, whatever his claims, in justice, may be upon the defendant; and, if the illegality be malum prohibitum only, the plaintiff may recover, unless it be directly on the forbidden contract,-a bond, the consideration of which grows out of an illegal transaction. There the illegal consideration is the sole basis of the bond, and there can be no recovery. But if a judgment has been rendered on that bond, and another bond is given in satisfaction of it, there the judgment, which must be legal, is the consideration, and the obligor is precluded from entering into the legality of the original transaction." In the case at bar the suit is not upon the original contract, but upon the judgment which forms the foundation for, and is the basis of, the relief demanded. Mrs. Hamilton agreed to pay a valuable and an adequate consideration for the land and personal property which she secured from the plaintiff, but, having failed to pay three of the promissory notes, evidencing a part of the purchase price, judgment was rendered thereon for the sum due. It was not necessary, therefore, for the plaintiff, in opening her case, to show that she had violated the law, nor did she require the aid of the original transaction to establish her case; and hence the decree must be reversed.

Suits in equity are tried anew on appeal, and a final decree is usually rendered in this court, and a cause should not be remanded to the lower court for further consideration unless necessity demands it. It was incumbent upon the defendants to present their testimony when they had an opportunity, but their failure to do so was evidently induced by a reliance upon the court's excluding competent evidence, to the introduction of which their objections were sustained; and, assuming this to be so, the cause will be remanded for such further proceedings as may be deemed proper,. not inconsistent with this opinion.

(41 Or. 550) ABRAHAM v. OREGON & C. R. CO. et al. (Supreme Court of Oregon. July 21, 1902.) RAILROADS GRANT OF LAND-RAILROAD PURPOSE-EATING HOUSE-PUBLIC

ACCOMMODATION.

1. Where land is granted to a railroad company for all legitimate railroad and depot pur

poses, and a hotel and eating house is erected on the land as an incident to the operation of the road, that accommodations are granted the general public apart from strictly railroad business does not render the use of the land repugnant to the grant.

2. The fact that there is another eating house or hotel near by, ample to accommodate passengers and employés, does not render the use of the land repugnant to the grant.

3. The station where the land was situated was a small one, and a large force of men necessarily made their headquarters at the station. Freight and delayed passenger trains were accustomed to stop at the station for meals, though no passenger trains stopped regularly for such purpose. There was no other station where employés or passengers could be accommodated with meals nearer than 35 miles. Held, that the construction of the hotel and eating house on the land was a use of it for a legitimate railroad purpose.

Appeal from circuit court, Douglas county; J. W. Hamilton, Judge.

Suit by Morris Abraham as administrator of the estate of Sol Abraham, deceased, substituted for Sol Abraham, against the Oregon & California Railroad Company and others. From a judgment dismissing his complaint, plaintiff appeals. Affirmed.

J. C. Fullerton and Albert Abraham, for appellant. W. D. Fenton and R. A. Leiter, for respondents.

BEAN, J. This is a suit to enjoin the defendants from operating, or permitting to be operated, a hotel or eating house on land conveyed to the defendant Oregon & California Railroad Company, by the plaintiff and his grantors, "for all legitimate railroad, depot, and warehouse purposes," on the ground that it is maintained and operated for the accommodation of the general public, and is not necessary or convenient for the operation of defendants' railway. The complaint was held sufficient on demurrer (Abraham v. Railroad Co., 37 Or. 495, 60 Pac. 899, 82 Am. St. Rep. 779), and, upon the cause being remanded to the court below, the defendants answered. They deny that the hotel or eating house complained of is not necessary or convenient for the operation of the railway, and affirmatively allege that the defendant the Southern Pacific Company, finding that the establishment of an eating station was necessary in order to carry out and facilitate the operation of its railway, and to enable its employés and passengers to be fed, housed, and entertained, leased a portion of said premises on August 1, 1897, to the defendant Clarke, in consideration of which she covenanted and agreed to erect and maintain thereon, at her own expense, a good and substantial building "for eating house and hotel purposes," for the use and accommodation of its passengers and employés; that thereafter, in pursuance of such lease, Mrs. Clarke did construct, according to plans approved by the Southern Pacific Company, a good and substantial building, which she opened on the 25th of November, 1897, to the traveling public and the passengers

and employés of the railway company, and has ever since maintained and operated it as an eating house or hotel, and that during all of such time its maintenance was, and is now, necessary and convenient for the use and operation of the railway. A demurrer to the answer was overruled, and a reply filed, putting in issue the material allegations thereof. Upon the trial the court found from the evidence that it was and is necessary for the railway company to have and maintain at Glendale an eating station for the accommodation of its passengers and employés; that the hotel operated by the defendant Clarke was constructed, and has been maintained, at the company's instance and request, for that purpose, and that it is not violative of any covenant in the deed of conveyance from plaintiff to the defendant the Oregon & California Railroad Company, although it has been and is kept open to the general public. The complaint was thereupon dismissed, and the plaintiff appeals.

The law of this case was settled on the former appeal. It was there said: "Where hotels or eating houses appear to be reasonably necessary for the convenience of its employés and passengers, their maintenance is a legitimate railroad purpose. But an eating house or hotel kept for the accommodation of the general public, and not as an incident to the operation and management of the railway, cannot be so considered. As to whether a given hotel or eating house is maintained for railroad purposes is therefore largely a mixed question of law and fact. to be determined from the circumstances of each particular case." Abraham v. Railroad Co., 37 Or. 495, 60 Pac. 899, 82 Am. St. Rep. 779. Within this doctrine, the maintenance of an eating house or hotel is a legitimate railroad purpose when the convenience of the employés and passengers of the company is subserved by it, but a hotel maintained for the general public alone is not. State v. Baltimore & O. R. Co., 48 Md. 49. Yet, if an eating house or hotel is reasonably convenient and appropriate to the operation and maintenance of the road, it may be built or operated by the railroad company, although depending for part of its patronage upon the general public. Much evidence was given in this case, tending to show the amount of patronage the hotel derived from the general public as distinguished from that of passengers and employés of the company; the witnesses being hopelessly in conflict upon the subject. But we do not understand that the character of its use is to be determined by segregating strictly railroad business from that done with the general public, and deciding as either may happen to preponderate. Nor is the question of the advisability of maintaining such a place for the convenience of passengers and employés affected alone by the number of people availing themselves of the privilege offered, o even by

the number of trains scheduled to stop for meals. The locality, the nature of the physical surroundings, the traffic and business of the road, and many other circumstances, should be considered; and, after all, it must ultimately depend to a large extent upon whether the business is carried on in good faith, as an incident to the operation of the road, or is entirely disassociated from it. The courts cannot undertake to draw any nice distinction, or apply any arbitrary test, to determine the necessity of establishing or maintaining such places of entertainment by railway companies, and, so long as it appears that they are not wholly foreign to the business of the corporation, the courts will not interfere with them. In the very nature of things, much must necessarily depend upon the judgment and discretion of the officers and managers of the company. They establish and maintain eating stations with reference to fixed or probable schedules and operation of trains, peculiarities of vary ing locations, or other general needs and exigencies of the business, all of which are within their cognizance and knowledge; and their judgment should prevail so long as they do not divert the property to uses wholly foreign to its organization or the terms of the grant conveying it. Proprietors of Locks & Canals v. Nashua & L. R. Co., 104 Mass. 1, 9, 6 Am. Rep. 181; Peirce v. Railroad, 141 Mass. 481, 6 N. E. 96; Railroad Co. v. Wathen, 17 Ill. App. 582, 589. Apply these principles to the case in hand, and there can be but one result. Glendale is a small station at the head of Cow Creek Canyon. It is at the foot of a very difficult grade, where the company is obliged to keep helper engines stationed to assist heavy trains over the mountains. From Glendale to the mouth of the canyon is about 30 miles, along which the road runs through a narrow defile, making it expensive and difficult to maintain. It is necessary for the company to keep a large force of men constantly employed in the canyon for the purpose of patrolling and keeping the road in repair, who must necessarily make their headquarters at Glendale. In addition to this, freight and delayed passenger trains are accustomed to stop at the station for meals, and, although passenger trains have not stopped regularly for such purpose since the construction of the hotel in question, the evidence shows that, during a considerable portion of the time since the road was built, Glendale has been a regular eating station for passengers on the company's trains, and may become so again at any time. There is no other station where employés or passengers of the company can be accommodated with meals between Riddles, some 35 miles north, and Grants Pass, about the same distance south. agers of the road testify that it is very desirable to have an eating house or hotel, under the supervision and control of the company, at Glendale, on account of the pe

The man

culiar location of the town, and the necessity of providing board and lodging for the crews of the helper engines and freight trains, the men employed in patrolling and keeping the road in repair, and passengers traveling on its trains. It was for this purpose the hotel in question was built, according to plans submitted to and approved by the manager of the company, with a dining room large enough to accommodate 100 persons, but with only 8 or 10 sleeping rooms. It is argued, however, that there is no necessity for the defendants maintaining or operating an eating house or hotel, because the plaintiff is conducting one near the depot grounds, which is amply sufficient for the accommodation of the passengers and employés of the railway company. But the fact that some other person has provided accommodations which may be used if desired does not determine whether the defendants' eating house is or is not a legitimate railroad purpose. The testimony shows many reasons why it is desirable that eating houses and hotels at such stations as Glendale should be under the supervision and subject to the inspection of the managers of the railway company. Aside from this, however, if the hotel or eating house is reasonably convenient and appropriate to the maintenance and operation of the road it does not matter that it may come in competition with other places of like character, nor that it may furnish accommodations for persons not connected with the road. Railroad Co. v. Richardson, 91 U. S. 454, 23 L. Ed. 356. The testimony further shows, and it is undisputed, that it is desirable and customary for railroad eating houses to have more or less outside business, as it helps pay expenses, and enables the proprietors to serve better meals and furnish better accommodations for the passengers and employés of the company. Such is the custom at other eating stations on the railroad, and there is no reason why it should not be followed in this instance. Our conclusion from the evidence is that the hotel or eating house maintained by the defendants, or under their supervision, is convenient and proper as an incident to the management and operation of the railroad, and is therefore a legitimate railroad purpose within the meaning of the deed from the plaintiff to the defendants.

The decree of the court below will therefore be affirmed.

(41 Or. 531)

HOUGH v. GRANTS PASS POWER CO. (Supreme Court of Oregon. July 14, 1902.) SERVANTS PERSONAL INJURIES - ELECTRIC LINEMAN COMPLAINT - SUFFICIENCY DUTY TO GIVE WARNING-CONCURRENT NEGLIGENCE OF MASTER AND FELLOW SERVANT.

1. A complaint stated that deceased, who was a lineman for an electric light company, was directed by the superintendent to work on certain wires, over which no current was passing; that it was the superintendent's duty to avoid

exposing deceased to any unnecessary dangers, and to warn him of such dangers; that the superintendent should have known of the dangers, and was negligent in that he failed to take ordinary care to give the employés at the power house notice that deceased was working on the line, in consequence of which a deadly current was turned on the wires. Held to state a cause of action, and not to be objectionable on the ground that the manager's knowledge of the danger was insufficiently alleged.

2. As deceased was working on dead wires, which presumably would not be rendered dangerous without warning, a specific allegation that he had no knowledge of danger was not necessary.

3. The complaint was not objectionable because failing to specifically state that it was customary to give notice at the power house that workmen were still employed on the line, it being apparent from the whole complaint that failure to give notice in the customary way was the negligence charged.

4. Where a complaint in a personal injury action alleges negligence on more than one ground, it is good against a general demurrer if one of such grounds is sufficiently stated, though another is not.

5. Where a servant is injured by a fellow servant's negligent performance of some of the master's duties intrusted to him by the master, the master is liable.

6. Where the complaint in a personal injury action alleges negligence on two grounds, either of which is sufficient to support a recovery, failure to prove one ground will not defeat recovery if the other is proven.

7. An electric lineman was working on dead electric light wires, under the immediate personal supervision of the light company's manager, just before time to start the dynamos in the evening. The manager directed another workman, having a bicycle, to ride past the power house and notify the employés there not to start the current till further notice. This employé negligently failed to reach the power house in time. Held, that the duty to give such notice was one personal to the master, and was not discharged by directing the workman to give it, unless he diligently performed his duty.

8. An instruction that, where a servant is injured by the combined negligence of the master and a fellow servant, the master is liable, though not applicable to the facts, was harmless, as the master was responsible for the negligence of the messenger.

9. An instruction that it is the duty of the master to inform the servant of any sudden danger of which he has knowledge or should be informed, but of which the servant is ignorant, and that the employé might rely on the warning and signals usually given in the conduct of the business, and, if the master fails to give these, he is negligent, was not erroneous.

10. Where the complaint alleged that plaintiff's injuries were caused by negligent failure to notify defendant's servants at its power house not to turn on the current while plaintiff was working on the electric wires, evidence that it was customary to use a telephone to give such notification, instead of sending a messenger, as defendant did, was admissible.

11. Testimony as to such custom was not too remote in point of time, because relating to the year previous to the accident.

12. Where the competency of an expert witness was not shown at the time he testified in chief, but was made fully apparent on crossexamination, admission of his testimony was not error.

13. In a personal injury action against a corporation, the jury returned to the court room after the case was submitted to them, and stated that they understood that some time ago the "old company sold its interest to the new company," and they desired to know which

of them would be responsible. The court stated that there was no evidence of any other company than the present defendant, and that the court knew of no other. The defendant was in fact what the jury referred to as the "new company," and was composed of nonresidents, while the former company was a local concern. Held, that the verdict could not be set aside on the ground that the personnel of defendant influenced the jury.

Appeal from circuit court, Josephine county; H. K. Hanna, Judge.

Action by A. C. Hough, as administrator of Enoch L. Moon, deceased, against the Grants Pass Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover for injuries received while acting in the capacity of a lineman in the employ of the defendant company. The complaint, so far as it is of material import here, alleges: "That the death of said Enoch L. Moon occurred and was caused by the neglect and wrongful acts and omissions of the defendant corporation, acting by and through its secretary and general manager, George I. Brown, in this: That the said Enoch L. Moon at the time of his death, on said October 2, 1899, and for some time prior thereto, was and had been an employé of said corporation, working on its electric system at Grants Pass, Oregon, as a lineman, and as such lineman it was his duty, under the instructions and directions of the said George I. Brown as general manager aforesaid, to ascend the electric light poles, and do all things needful for the keeping of the said line and electric light wires and apparatus in repair; and it thereby became the duty of said corporation, through its said secretary and general manager, to provide for said deceased safe and suitable appliances and places with and in which to work, and to avoid exposing said deceased to unnecessary danger, and to warn him of such dangers as to him were unknown, or to which any act or failure of duty of the said corporation should expose said deceased, and to this end to use and exercise due care, commensurate with the known danger, to protect said deceased from injury. That on said 2d day of October the said deceased, with the knowledge of said George I. Brown, acting as manager aforesaid, and pursuant to his directions, and while under his control, was working on said line, doing necessary work on the electric light wires at or near the top of one of the electric light poles near the corner of Front and Fifth streets, which work was necessary to be completed before the said line was in condition for safe and proper use in lighting said town the night of said day. That on said date, while the deceased was performing said work and labor pursuant to the directions and by the authority aforesaid, the defendant, by its general manager aforesaid, wrongfully and negligently, and in violation of its duties and obligations to deceased, carelessly, negligently, and without due care on its part, by

failing to take the ordinary, usual, and reasonable precautions, usual and customary in the conduct of its business, neglected and failed to give ordinary, usual, or timely notice to the defendant's employés at its power house that deceased was still working on the line aforesaid, and so prevent the electric current from being turned on said wires, and did carelessly and negligently fail to warn deceased of his danger, as was or should have been known to the said George I. Brown; and thereupon and in consequence of said negligence the dynamo or dynamos at the power house of said defendant were put in motion, whereby a powerful electric current was generated along, and over said wires on which deceased was working, whereby and wherefrom said deceased received an electric shock, which caused him to be thrown from said pole a distance of about thirty feet, to the ground, and which caused his death. That defendant negligently failed and neglected to furnish and supply deceased with insulated nippers or rubber gloves with which to handle said wires in the course of his said employment. That the shock received by deceased and his subsequent death were caused by the wrongful acts, omissions, and negligence of the defendant, corporation, through its manager, George I. Brown, neglecting to furnish deceased with insulated nippers and rubber gloves with which to handle said wires, and in not taking ordinary or reasonable care or means to prevent said electric current from being generated and turned upon said wires when deceased was working at said time there as aforesaid, and in failing to warn deceased that there was likelihood or danger of said electric current being turned on, or that at said time and place it was unsafe to continue work, and in failing to take reasonable or ordinary precautions to notify defendant's employés at the power house that deceased was working on said wires, and so prevent said current from being turned thereon, and in failing to furnish deceased with rubber gloves and insulated nippers with which to handle said wires." A general demurrer to this complaint having been overruled, a trial was had, resulting in a judgment for plaintiff, and the defendant appeals.

It is

of Brown to avoid exposing the deceased to unnecessary danger, and to warn him of such dangers, or to which any act or failure of duty on the part of the defendant would expose him; that the deceased, with the knowledge of Brown, and pursuant to his directions, was working on said line, which work was necessary to be completed before the same was in a safe and proper condition to use in lighting the town the night of said day, and while deceased was so at work the defendant neglected and failed to give the ordinary or timely notice to its employés at its power house that the deceased was still working on the line, and so prevent the electric current from being turned on, and did carelessly and negligently fail to warn the deceased of his danger, which was or should have been known to Brown, in consequence whereof the current was turned on, and the injury ensued. This condensed statement of the contents of the complaint almost answers the objection, without further comment. alleged that Brown did know or should have known of the danger attending this condition, which allegation is amply sufficiently to charge him with such knowledge, and to let in proof to that purpose. It was not necessary for plaintiff to allege that the deceased was without knowledge of his danger, because he was directed to work upon dead wires, and presumably they would not be rendered dangerous without due notice and warning to him. The danger was one not incident to the place in which he assented to work, but resulted directly and immediately from the negligent act of the employer in permitting to be transmitted over the wires a deadly current of electricity, thus rendering the work that was before perfectly safe extremely perilous and hazardous to life. Speaking generally, the vocation of a lineman may be classed as hazardous, but in this instance neither the immediate work in hand, nor the place in which it was performed, was hazardous or dangerous, and it was the duty of the defendant to take proper and reasonable precautions to guard against converting his position of safety into one of peril. It was therefore unnecessary for the pleader to go further than to allege the duty, and the neglect thereof which directly conduced to the

WOLVERTON, J. (after stating the facts). The first question presented is whether the complaint states facts sufficient to constitute a cause of action, which must be considered in view of the verdict in favor of plaintiff. The specific objection urged is that it is nowhere alleged that Brown, the manager of the defendant company, knew of the danger to which the deceased was exposed, or that deceased was ignorant thereof, or even that there was any danger attending the specific work in which he was engaged. Among other things, it is alleged that it was the duty 69 P.-42

deceased. It would be an idle ceremony to require plaintiff to allege that deceased was without knowledge that his position was perilous by reason of his employer's liability to turn on the electricity, which the duty of the latter required he should not do unless he gave notice or warning thereof. Carlson v. Railway Co., 21 Or. 450, 454, 455, 28 Pac. 497; Promer v. Railway Co., 90 Wis. 215, 63 N. W. 90, 48 Am. St. Rep. 905. He assumed no risk of that kind by assenting to do the work, whether it was with or without such knowledge. A person must so use his property as not to wantonly injure another, and a servant legally assumes no more danger or