NEGLIGENCE (Continued). the right-hand side of that portion of the street along which vehicles, going in either direction, ordinarily travel, was to the left of the center of the street, where it was not "practicable" for him to travel along the right-hand side of the street. (Id.) 46. RAILROADS-CONSTRUCTION OF BRIDGE ACROSS STREAM-DUTY TOWARD NEIGHBORING LAND OWNERS.-In constructing a bridge across a stream, it is the duty of a railroad company, in the exercise of ordinary care to avoid injury to neighboring lands, to guard against such floods or freshets as men of ordinary prudence can foresee, but not against such extraordinary floods and accidental casualties as cannot reasonably be anticipated. It not only should employ engineers of at least ordinary ability, who will bring to bear such engineering skill as is ordinarily applied to works of that kind, but it is its duty to exercise a reasonable degree of care and prudence in the construction of the bridge, taking into account the laws of hydraulics, the natural formation of the country, and the character of the stream, its habits and history, to the extent of learning its probable behavior under conditions which experience has shown are likely to recur, so as to guard against injuries which may reasonably be anticipated, not only from the usual state of the stream, but also from such extraordinary floods and freshets as may reasonably be anticipated, in view of the stream's past history and known behavior, even though such floods or freshets have occurred but infrequently. (Asher v. Pacific Electric Ry. Co., 712.) 47 DUTY ΤΟ ANTICIPATE EXTRAORDINARY FLOODS EXERCISE OF ORDINARY CARE.-A railroad company is not bound to provide against such extraordinary floods as have never been known to occur, and which competent and skilled engineers could not reasonably anticipate. If the company has employed engineers of at least ordinary ability and skill, and has used all ordinary precautions in the construction to have the work done properly, it will not be liable to others for injury to land caused by an extraordinary and unprecedented storm and flood, unknown to common experience, and which could not reasonably have been anticipated. (Id.) 48. ACTION FOR DAMAGES CAUSED BY OVERFLOW EXTRAORDINARY FLOOD AS DEFENSE EVIDENCE OF INUNDATION AT OTHER POINTSNECESSARY FOUNDATION.-In an action against a railroad company to recover damages occasioned by an overflow of plaintiff's land, resulting from the railroad's negligence in the construction of its bridge, evidence that other lands upon the stream were inundated by the same flood is inadmissible to support the defense that the flood was extraordinary and unprecedented, unless it be shown that NEGLIGENCE (Continued). there is a similarity of location, surroundings, and conditions as between the respective lands. (Id.) 49. CAUSE OF INJURY-BURDEN OF PROOF.-In such an action, the burden rests upon plaintiff to show, by a preponderance of the evidence, not only that defendant was guilty of negligence as alleged in the complaint, but that such negligence was the proximate, or a concurring proximate, cause of the injury. For if, notwithstanding any negligence in reinforcing and sway-bracing the bridge, the injury to plaintiff's land would have occurred, nevertheless, even had there been no such structure, then its existence could not have caused the damages and defendant would not be liable. (Id.) 50. CHANGING DIRECTION OF STREAM DURING FLOODS - DUTY TO FORESEE-FAILURE TO PLACE BENTS AT PROPER ANGLE.-If the direction of the flow of the flood waters during these excessive rainfalls constantly changes so that no engineer, however familiar with the known habits of the stream, could foresee at what angle the waters of any flood might strike the bents and sway-braces, it cannot be claimed that defendant was negligent simply because it did not place the bents or sway-braces at some particular angle with the longitudinal direction of the bridge or with the ever-changing "axis" of the flood waters, if such waters can be said to have any particular axis of flow. (Id.) 51. THEORY OF PLAINTIFF'S CASE-DEFINITE Axis OF STREAMEVIDENCE OF BEHAVIOR AT OTHER POINTS ADMISSIBLE.-Where the plaintiff's case rests upon the theory that the river had a definite "axis" at the place where the railroad company's bridge crossed the wash, that in that section of its course the axis of the stream was at an angle of about forty-five degrees with the sway-braces that had been placed across the bents for reinforcing the bridge, and that thus the flood waters, impinging upon these sway-braces at such angle of forty-five degrees, were deflected toward and through plaintiff's land, instead of passing on under the bridge as, in the opinion of plaintiff's witnesses, they would have done had there been no sway-braces present, evidence respecting the actions and behavior of the stream, both above and below plaintiff's land and defendant's bridge during the flood in question, and during other floods, is admissible, as tending in the most practicable, if not the only available, manner to rebut plaintiff's theory of a definite axis of the flood waters in that vicinity. (Id.) 52. NATURE OF DEFENDANT'S NEGLIGENCE-THEORY OF PLAINTIFF'S COMPLAINT PROPER INSTRUCTION.—Where the plaintiff's complaint did not charge defendant with negligence in the original construction of the bridge, but only with negligence in reinforcing and rebracing it, the court properly instructed the jury that "there is no charge in this case that defendant was negligent in respect to NEGLIGENCE (Continued). the condition of the channel of the wash during the years succeeding the building of this bridge, nor that the bridge as built origi nally was not of proper length, type, construction, or location. You must, therefore, assume conclusively, in considering this case, that the bridge was not as originally built of improper length, type, construction, or location. The charge is made that the said bridge several years after its original construction was negligently reconstructed, retied, rebraced, and reinforced. In determining whether the defendant was negligent in this matter, you should be guided. . . in the light of the circumstances and surroundings ... at the time of such reconstruction." (Id.) 53. CONTRIBUTORY NEGLIGENCE AS DEFENSE-INSTRUCTIONS-CONFLICTING EVIDENCE-VERDICT-APPEAL.-Where, in action to recover damages for the death of a person by the alleged negligence of the defendant, the latter pleads contributory negligence on the part of the deceased, and the court gives certain instructions based on such defense which will warrant the jury in awarding a verdict for the defendant should they find the facts upon which such instructions are predicated to be as claimed by the defendant, but there is a decided conflict on every fact upon which such instructions are predicated, and the jury settles the conflict in favor of the plaintiff, the judgment based thereon cannot be disturbed by the appellate court; and in view of such conflict, it cannot be said that the jury disregarded the instructions of the court. (Fidelity & Casualty Co. v. Iron Works, 766.) 54. KNOWLEDGE OF PRESENCE OF PLANK ACROSS SHAFT-DEFENDANT PUT ON INQUIRY.-Under the circumstances of this case involving the death of a person engaged in painting a building, he at the time having been standing on the outer end of a plank which was extended across the open hatchway of one of several elevator shafts in which the defendant was installing elevators and having been caused to fall from such plank through its being struck by the counter-weight of an elevator operated by the defendant without warning to him, the very fact of the known presence of the plank across the shaft was notice to defendant for further investigation of that fact, although the presence of the plaintiff on the outer end thereof was not known. (Id.) 55. AGREEMENT BETWEEN EMPLOYERS WANT OF NOTICE TO EMPLOYEE. In such case, an agreement between the different employers engaged in the construction of the building that workmen should not use the elevator shaft without notifying the foreman of defendant was not binding upon the deceased where notice of such arrangement was not given to him. (Id.) 56. CONTRIBUTORY NEGLIGENCE OF DECEASED QUESTION FOR JURY.— The question as to whether or not the deceased was guilty of contributory negligence in this case in being on the outer end NEGLIGENCE (Continued). of the plank where he could not be seen by defendant's employees, and as to whether or not his being there was such as to endanger his safety, was one for the jury. (Id.) 57. CONSTRUCTION OF BUILDING-EMPLOYMENT OF DIFFERENT CLASSES OF ARTISANS AT SAME TIME-RELATION OF EACH TO OTHERS.— Where several different classes of artisans are engaged in the construction of a building at one time, all of whom have necessary work to do, and which they are under contract to do, it cannot be said that the employees of the contractor who is engaged in the installation of the elevators are doing a more necessary work and a work of such importance that the other contractors and their employees can be treated as trespassers. (Id.) 58. OPERATION OF ELEVATOR WITHOUT WARNING-DUTY OF EMPLOYEE TO ANTICIPATE-ASSUMPTION OF RISK.-Where, notwithstanding the fact that at the time, to defendant's knowledge, other men than deceased were actually working in the hatchway across which was extended the plank on which the deceased was standing, no warning of the operation of the elevator was given, this in itself constituted negligence which deceased could not anticipate and which he did not assume. (Id.) 59. SUBROGATION UNDER WORKMEN'S COMPENSATION ACT.-The mere fact that the Workmen's Compensation and Safety Act does not specifically mention the matter of the subrogation of the employer, or his insurance carrier, to the rights of the injured employee, or, in the case of his death, to the rights of the heirs or personal representatives, is immaterial. This is a mere incident to the liability, or to the payment of the compensation, and is included in the general language of the title of the act, and especially that portion of the title providing for the creation of the liability; while the act itself provides that the payment of compensation shall be contingent upon the subrogation of the employer, or his insurance carrier, to the rights of the injured employee. (Id.) 60. AUTOMOBILE COLLISION- - PLEADING - EVIDENCE- DAMAGES. The judgment is affirmed on the authority of Saylor v. Taylor, ante, p. 474. (Saylor v. Taylor, 800.) See Counties, 2; Public Officers, 13. NEGOTIABLE INSTRUMENTS. ALTERATION WITHOUT CONSENT - AVOIDANCE OF INSTRUMENT.-The alteration of a negotiable instrument by which its meaning and effect is changed avoids the instrument as to any nonconsenting party thereto and this rule, as it relates to a guarantor, has been incorporated into our statute law by section 2819 of the Civil Code. (Nissen v. Ehrenpfort, 593.) See Promissory Notes, 4. NEW TRIAL. 1. APPEAL-EVIDENCE-PRESUMPTION.-Where the evidence is such that it would have sufficiently supported findings in favor of the party against whom the decision was given, and the trial court grants a motion for a new trial upon various grounds, including that of insufficiency of evidence, without in terms excluding such ground in its order on the minutes, the appellate court must presume, in favor of such order, that the court changed its opinion as to the effect of the evidence, and reached a conclusion upon the hearing of the motion favorable to the party making the motion. (Clohan v. Kelso, 67.) 2. FINDINGS PRESUMPTION. On appeal from an order granting a new trial the presumption is against the findings and not in their favor. (Id.) 3. NEGLIGENCE-PERSONAL INJURIES TO PEDESTRIAN-SPEED OF AUTOMOBILE EVIDENCE. In this action for damages for personal injuries received by the plaintiff through having been struck by an automobile driven by the defendant, the fact that the defendant approached the crossing in question at a speed of twenty-five miles per hour alongside of another automobile, also proceeding at the same or a greater rate of speed, while pedestrians, including the plaintiff, were crossing the street, was sufficient to support the conclusion of the trial court that the defendant was clearly negli gent. (Id.) 4. EXCESSIVE VERDICT-BASIS OF MOTION.-A motion for a new trial upon the ground that the verdict is excessive does not necessarily imply misconduct on the part of the jury, but it does presuppose that the result has been induced through excited feelings or prejudice of which the jury may not, perhaps, have been aware, but which has, nevertheless, precluded an impartial consideration of the evidence. The essence of the contention is that a fair view of the evidence would not lead an impartial mind to the approval of such a verdict. (Leach v. Klein, 435.) 5. TRESPASSING CATTLE-ACTION FOR DAMAGES ORDER GRANTING NEW TRIAL-DISCRETION NOT ABUSED.-In this action for damages alleged to have been caused by defendant's cattle to plaintiff's fruit trees and crops, the trial court did not abuse its discretion in granting a new trial, either upon the ground of newly discovered evidence, or that the verdict was excessive, appearing to have been given under the influence of passion or prejudice. (Id.) 6. NEWLY DISCOVERED CUMULATIVE EVIDENCE-QUESTION FOR TRIAL COURT REVIEW ON APPEAL.-On a motion for a new trial on the ground of newly discovered evidence, which is merely cumulative, the question for the trial court to determine is whether the evidence is of character probably to affect the result on a new trial; and unless the evidence be of such a character as |