be held by said lessor as security for said faithful performance by said lessees, and that in the event that said lessees shall fail to keep and perform each and all of the terms and covenants and conditions herein contained, on their part to be kept and performed, said Five Thousand ($5000.00) Dollars, or such proportion thereof as may be necessary shall be retained by said lessor and applied [italics ours] by him on account of the damages sustained by reason of the failure of said lessees to faithfully perform any of the conditions herein contained on their part to be performed. But notwithstanding the retention of said sum of Five Thousand ($5000.00) Dollars by said lessor, said lessor shall have all and every action, right, remedy, claim and demand against said lessees for all damages sustained by him in excess of the sum of Five Thousand ($5000.00) Dollars, up to the sum of TwentyFive Thousand ($25,000.00) Dollars by reason and on account of the failure of said lessees to perform the covenants herein contained on their part to be performed, but that in no event shall said lessor be entitled to ask for, demand, claim or receive from said lessees any sum or amount in excess of the sum of Twenty-Five Thousand ($25,000.00) Dollars by reason or on account of any damage sustained by said lessor by or through the failure of said lessees to live up to, abide by or perform any of the terms, covenants or agreements herein contained on their part to be performed."

For this, we think, it conclusively appears that the money so held by plaintiff was to be applied in just such a contingency as has arisen here. This being true, the learned trial court was correct in ordering the same applied to the satisfaction of the judgment.

[4] The practice in this state, from the very earliest time, has been to modify a judgment in the appellate tribunal so as to finally settle the controversy, when the rights of the parties appear from the record to be fully ascertained. (Persse v. Cole, 1 Cal. 369; Fox v. Hale etc. Co., 122 Cal. 219, [54 Pac. 731].) In the case at bar, we think it conclusively appears that the rights of the parties have been fully ascertained, and that the trial court simply erred by the entering of an erroneous judgment. Hence, it seems clear that our present duty is to modify the judgment so as to finally settle this controversy and render another trial unnecessary.

It is, therefore, ordered that the clause denominated "3" of the judgment entered herein, which reads as follows: "That the agreement of iease entered into between the plaintiff and defendants I. H. Norton, H. Joe Isaacs and M. M. Norton, on the 5th day of July, 1912, be forfeited by the defendants and terminated as of date August 31, 1915," be, and the same is hereby, stricken out, and, as so modified, that the judgment be, and the same is hereby, affirmed; and that appellant shall recover his costs of appeal herein.

Finlayson, P. J., and Sloane, J., concurred.

[Civ. No. 2871. Second Appellate District, Division Two.-August 16, 1919.]

HUGH L. ASHER, Appellant, v. PACIFIC ELECTRIC RAILWAY COMPANY (a Corporation), Respondent.

[1] 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.

1. Duty of one obstructing natural watercourse to anticipate extraordinary freshets or floods, notes, 8 Ann. Cas. 777; Ann. Cas. 1918A, 1114.

[2] ID.-DUTY TO 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. [3] ID.-ACTION FOR DAMAGES CAUSED BY OVERFLOW-EXTRAORDINARY FLOOD AS DEFENSE EVIDENCE OF INUNDATION AT OTHER POINTS— NECESSARY 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 there is a similarity of location, surroundings, and conditions as between the respective lands.

[4] ID. 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. [5] ID.-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.

[6] ID. 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

2. Extraordinary floods which one obstructing watercourse need not anticipate, note, 6 L. R. A. (N. S.) 252.

"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.

[7] ID.-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 the condition of the channel of the wash during the years succeeding the building of this bridge, nor that the bridge as built originally 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."

...

APPEAL from a judgment of the Superior Court of Los Angeles County. Curtis D. Wilbur, Judge. Affirmed.

The facts are stated in the opinion of the court.

Davis & Rush for Appellant.

Frank Karr, R. C. Gortner, A. W. Ashburn and W. R. Millar for Respondent.

FINLAYSON, P. J.-This is an action to recover damages for the washing away of a part of plaintiff's land by the waters that flowed down the Lexington Wash, near the town of El Monte, in Los Angeles County, during the flood of

February 20, 1914. In August, 1913, the Railway Company had reinforced its bridge across the wash by placing swaybraces on the bents. It is claimed by plaintiff that in thus placing sway-braces on the bents of the bridge, defendant was guilty of culpable negligence, and that this negligence was the proximate cause, or concurring proximate cause, of the diversion of the flood waters on to and through his land. The case was tried before jury, a verdict was rendered for defendant, and plaintiff appeals from the judgment.

The following summary of the principal features of the case is sufficient for an understanding of appellant's claims: Out of the steep mountains lying a few miles to the north of the area immediately surrounding plaintiff's land, the San Gabriel River debouches. As the waters of the river emerge from the mouth of the canyon at the foot of the mountains, they follow, generally, and for some distance, the course known as the San Gabriel River. A little below where the Santa Fe bridge crosses the stream, the waters of the river, during some of the floods occurring over a period of years commencing at a time prior to the reinforcement of defendant's bridge to the time of the flood of February 20, 1914, have divided, a part of the waters flowing in a southeasterly direction in the old course of the river, known as the Old San Gabriel or East River, and a part flowing southwesterly into and through Lexington Wash, which is now a broad, irregular sand and gravel wash, extending generally in a northerly and southerly direction. As is frequently the case with the streams of Southern California, there is, at the mouth of the canyon, a broad debris cone. Prior to 1891 Lexington Wash was a small wash extending generally in a northerly and southerly direction, and situated west of the town of El Monte, receiving its water from four or five small canyons lying to the northwest. Prior to 1891 this wash, which was then quite small, received no water from the San Gabriel Canyon, excepting once, in the year 1870. In 1891, by breaking through the debris cone at the mouth of the canyon, a considerable quantity of the waters of the San Gabriel River flowed westerly over into the Lexington Wash, widening it to some extent. This condition did not change materially until 1910, when, on January 1st, during a severe rainstorm, a large part of the San Gabriel River cut through the debris cone below the canyon's mouth, swung westerly