default she admitted nothing more than that the allegations of the complaint are true, and not that she is personally liable for the whole debt, or that it should be made a lien upon her property alone. No such issue was tendered to her, nor was she called upon to make any defense thereto, but when the appellants by this appeal seek to attack the decree of the court below they become the moving parties, and must, by their notice, bring into court all the parties to the record whose interests will be injuriously affected by the reversal or modification of the decree appealed from, and, not having done so, the motion must be allowed, and the appeal dismissed.

JOSHUA HENDY MACH. WORKS v. PACIFIC CABLE CONST. CO. et al. (Supreme Court of Oregon. June 26, 1893.) MECHANICS' LIENS-ENFORCEMENT-PLEADING AND PROOF-VARIANCE.

Where, in an action to foreclose a mechanic's lien, the notice of lien introduced in evidence by plaintiff does not describe the property set forth in the complaint, the variance is fatal.

Appeal from circuit court, Multnomah county; Loyal B. Stearns, Judge.

Action by the Joshua Hendy Machine Works against the Pacific Cable Construction Company and others to foreclose a mechanic's lien. Decree for plaintiff. Defendants appeal. Reversed.

T. N. Strong, for appellant Portland Sav. Bank. O. F. Paxton, for appellant Portland Cable Ry. Co. Milton W. Smith, (Walter S. Perry, of counsel,) for respondent.

PER CURIAM. This is a suit brought by the plaintiff to foreclose an alleged mechanic's lien. The complaint alleges that the plaintiff has a lien upon lots 3, 4, 5, and 6, in block 1, in Market Street addition to the city of Portland. To prove this allegation plaintiff introduced in evidence, against defendants' objection, a notice claiming a lien upon lots 3, 4, 5, and 6, in block 1, in Carter's addition to the city of Portland, which is a different parcel of land. This is a fatal variance between the allegation and the proof. The notice of lien does not describe the property set forth in the complaint. The decree is reversed, and the complaint dismissed.

AHERN v. OREGON TELEPHONE & TELEGRAPH CO.

(Supreme Court of Oregon. June 19, 1893.) ACTION AGAINST TELEPHONE COMPANY-INJURIES FROM CHARGED WIRE-PLEADING AND PROOFVARIANCE-NEGLIGENCE-PROXIMATE CAUSE.

1. In an action against a telephone company for personal injuries, the complaint alleged that plaintiff came in contact with a wire on the sidewalk, which, owing to the darkness,

he was unable to see, and that when he took hold of it to remove it from his way the electricity with which it was charged passed into his body. The evidence was that plaintiff slipped on the sidewalk, and in groping for his hat and packages which had fallen his hand came in contact with the wire, and was "grabbed" by it. Held, that the cause of action was not entirely unproved, so as to cause a fatal variance, within the meaning of Hill's Code, § 98.

2. Where a telephone company has permission from an electric light company to string its wires along the latter's poles when the telephone company wishes to connect a residence where it has no poles, and the telephone company disconnects a residence, and, instead of removing the wire, coils it up, and hangs it on an electric light pole, the telephone company is bound to look after the wire; and if it fail to do so, and the electric light company remove the pole, and hang the wire on a telephone pole, where it becomes charged with electricity from an electric light wire, and injures a pedestrian on the sidewalk, the neglįgence of the telephone company is the proximate cause of the accident.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by Eugene Ahern against the Oregon Telephone & Telegraph Company for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. H. Carey, for appellant. James Gleason and A. F. Sears, for respondent.

LORD, C. J. This is an action to recover damages for a personal injury alleged to have been caused by the negligence of the defendant in permitting its wire to come in contact with an electric wire, whereby it became heavily charged with electricity, and in allowing such wire to hang down so near the ground at the corner of K and TwentyFirst streets as to endanger the life and limb of those traveling upon such streets.

The errors assigned relate to the refusal of the trial court to grant a nonsuit, and to certain instructions given and refused. Upon the first point the contention is that the evidence does not prove the cause of action alleged, although it may be sufficient to constitute a ground of action, and consequently that the variance is fatal to the plaintiff's recovery. It is no doubt true that the plaintiff must state the facts which constitute his cause of action, and that he cannot state one and prove another. The Code, with all its comprehensive liberality, will not admit, as Sherwood, C. J., said, "a plaintiff to sue for a horse and recover a cow." Waldhier v. Railroad Co., 71 Mo. 518. Such variance is fatal, for the reason that the cause of action is unproved in its entire scope. The inquiry, then, is whether the testimony for the plaintiff establishes a cause of action different from the one alleged. That there is some variation between the evidence and the complaint may be conceded, but it consists only in matter of detail, or as to how the injury occurred. There is no absolute departure in the proof from the original theory of the case. The point to which the

variance relates is this: The allegation, in substance, is that the plaintiff was walking along the sidewalk, and came in contact with the wire, which, owing to the darkness, he was unable to see; and that he attempted to remove the same from his pathway, and in doing so he caught hold of the wire, and the electricity with which it was impregnated passed into his body, etc.; whereas his testimony shows that he was walking along the sidewalk, and, it being dark, and, owing to the rain, the pavement slippery, that he slipped, and fell on his elbow, causing his hat to fall off, and some packages to drop out of his hands, and that in groping for his hat and packages his hand came in contact with the wire, which, being impregnated with electricity, "grabbed" it, and, as he could not let go, he put out his other hand to remove the same, when it "grabbed" that hand, etc. Plainly, the variation here is only of detail, or as to the circumstances under which the plaintiff came in contact with the wire and received the injury. The elements of negligence alleged, namely, in permitting its wire to come in contact with the electrical wire, and to hang so near the ground as to endanger life or limb, are present in either aspect of the case, or as much under the testimony as the allegation. Such variance does not present a case where the cause of action is unproved in its entire scope and meaning, within the construction of the Code. Section 98, Hill's Code. Hence there is not a failure of proof, and without such failure the variance is not fatal, or such as would entitle the defendant to a judgment of nonsuit.

The principal ground of complaint remains, however, to be considered. This is, was the negligence of the defendant the proximate cause of the injury? There are some other minor questions suggested by way of criticism upon the charge of the court, but the remoteness of its acts, and the intervention of other agencies directly contributing to plaintiff's injury, are relied upon as its chief defense. It was the failure of the court, as indicated by the instructions given and refused, to properly apply the law in this regard that constitutes the main grievance of the defendant. To comprehend the force of this objection, we must first know and understand the facts. The plaintiff is a laboring man, and was employed by the gas company to shovel coal into its furnace. On the day of the accident he quit work after 5 o'clock P. M., and started for his home, but on his way went to market, made some purchases, and went out G street to Twenty-First, and, when passing down that street, near the corner of K, he slipped on the sidewalk, and fell on his elbow, his hat falling off, and the packages which he carried flying out of his hands. After he got up he groped for his packages and hat, when his hand rubbed against a wire, one end of which was hang

ing down over the sidewalk at the intersec tion of the streets. His testimony on this point is. "My hand rubbed against this wire, grasping hold of me fearfully. I then took the notion to put up this hand to hit this one away from there. It grabbed that one, and held on to it fearfully. I could not iet go; it was too strong. I don't know what part of my hand catched hold of it. My fingers rubbed it first. It tore me fearfully, like machinery with about 200 pounds of steam. I was screaming awfully, and finally I saw people around the sidewalk; and this hand after a while dropped from the wire. That must have been the time my toes got burned. It whirled me up in all sorts of shapes. I don't know how I was. When this hand dropped I hung on with it until I was released. After this hand dropped I had no more memory at all. I lost my senses. I don't know what happened after that." Several persons hearing his screams for help, two men ran from J street to his assistance, and one of them slashed at the wire with his knife, and received a severe shock, but did not sever it. After some hesitation, he slashed it again, and succeeded in cutting the wire. The defendant was assisted to his home and put to bed, when it was found that three toes were badly burned. Afterwards he was taken to the hospital, and one toe was amputated and the others were trimmed off. It was after 6 o'clock, and quite dark, when the accident occurred, and the sidewalk was slippery from recent rain. The defendant could not see the wire, nor did he know that it was hanging down over the street, nor that it was charged with electricity. The wires of the telephone company were strung on K street, running east and west, and the wires of the electric light company and the electric street-railway company were strung along Twenty-First street, running north and south, so that the wires of the defendant were at right angles to the wires of the two electric companies.

The evidence further shows that the defendant had an arrangement with the electric light company by which either might use the poles of the other upon which to string a wire when it had no poles at the place, and only a short distance of wire was to be used; that the defendant used the poles of the electric light company when wiring the residence of a Mr. Bates, at the corner of H and Twenty-First streets, but that some three months before the accident the wire was disconnected from the telephone at his residence, and wrapped around the electric pole, and made fast by tying it on a bracket and winding around the pole and around itself; that such wire had not been used by defendant after it was so disconnected, nor had the company made any inspection of it from that time until the accident; that during this interim the elec tric company changed its poles and wires

along Twenty-First street, and in doing so took down the pole belonging to it upon which the telephone wire was fastened as aforesaid, coiled up the wire, and hung it on a pole belonging to the defendant, near K and Twenty-First streets, where the accident happened; but that the defendant had no knowledge that the electric company had taken down its poles, or taken down its wire, and hung it on the pole as aforesaid. Richard Gerdes testified that he was in the employ of the electric light company, and that on the night of the accident he received a message by telephone that a man had been hurt by an electric light wire; that he went at once to the place where the accident occurred, and found the wire hanging on the pole; that he cut it above the coil; that it was heavily charged with electricity by contact with a wire belonging either to the electric street railway or the electric light company; that it must have been the wire of one or the other that charged it with electricity, as there was no other heavily charged wire in that vicinity. The evidence further shows that the day before the accident the wire was hanging in the form of a coil on a stick at the side of the telephone pole, and that the bottom of it was two or three feet from the ground; that it was heavily charged with electricity, and that one witness, who touched it with a wire, was thrown to the ground from the shock.

Among other things, the court, in substance, instructed the jury that the question here submitted is "whether it was negligence or not to leave a wire along a public thoroughfare, where it might be found in the way of pedestrians, or where it might be liable to be handled or interfered with by boys or by irresponsible persons." That it was for them to determine from the evidence "whether or not there was a proper inspection made of these wires, so as to know what their condition was, and to ascertain whether anybody had been interfering with them, making them more dangerous than they otherwise would be." That "the fact that this company used the poles of another company, and the fact that other electric companies had wires upon the same street, does not detract at all from the strict requirements which should be made of the defendant company. Unless it had loaned its wire to the electrical company, or the electrical railway company, and placed them under the control of that company, it could not be absolved from the duty of looking after them and ascertaining and knowing what their condition was, and of anticipating and foreseeing what might happen in connection with them; and that, unless you should find from the evidence that this defendant had turned over the use and control of its wires to these other companies on whose pole this wire was suspended, you have no right to say

that those companies were liable, and not this company, if this company was guilty of any negligence. Unless this company was negligent, there could be no recovery on the part of the plaintiff. If you find that it was not guilty of any negligence, then your verdict should be for the defendant." The counsel for the defendant requested the court to instruct the jury as follows: "If the jury finds that the defendant was not negligent in leaving its wire attached to the pole near Mr. Bates' house, as it did leave it, and that the wire was not dangerous as left by it, and could not and did not become dangerous except by the act or neglect of some other person or company, the defendant is not liable;" but the court refused to charge as requested, but gave it with the following modification: "I give you that in connection with the general instruction which I gave you that the defendant must have parted with the control of its wires in order to be exonerated by the reason of the negligent act of some other person." The defendant also requested the court to charge that "it is claimed by the defendant that it placed its wires in a safe and secure position, and that it did not become dangerous except by the acts and omissions of others, without its knowledge or consent. If you find this is true, the defendant is not liable, unless the intervening acts or omissions of such other persons should have been contemplated and guarded against by the defendant as consequences likely to follow, and which might have been reasonably anticipated." And again: "If it was not negligent in leaving the wire as it did, it is not liable, unless it could have reasonably foreseen that some one would take down the wire, and place it where it injured the plaintiff, and that it might come in contact with some other electric wire that was charged with a current of electricity that would make it dangerous." And again: "Even if the defendant had left its wire coiled up or hanging over the sidewalk, so that pedestrians might come in contact with it, it would not be liable for damages to the plaintiff for injury sustained by an electric shock from the wire unless the fact that the wire left there was the immediate or proximate cause of the injury, the wire not by itself being dangerously charged with electricity, and becoming so charged only by intermediate circumstances, namely, that of interfering with or crossing some heavily charged wire," etc. The court refused to so instruct the jury, and to its rulings thereon the defendant duly excepted.

It appears from the instructions that the theory of the law as applied to the facts by the trial court was that it is negligence to allow a wire, which, from its environment, is liable to become charged with electricity, to hang over the street at such a height as to obstruct and endanger ordinary travel. That it was the duty of the defendant, ow

ing to the location of its wire and the use of the poles of the electric light company, to look after it, and see that it was in proper condition, and that, when the wire was disconnected from the Bates residence, if, instead of taking down the wire, the company chose to hang it upon the electric pole, the duty still devolved upon it to take care of such wire, and that this was a continuing duty, from which it would not be absolved unless it had parted from the control of its wire to the electric companies. This requirement imposed upon the defendant the obligation of looking after and ascertaining the condition of its wire, and of anticipating or foreseeing results which were likely to happen by reason of its connection or location as to the electric wires so as to avoid liability to danger arising therefrom. In this view of the law, the taking up of the pole by the electric light company and hanging the defendant's wire upon its pole at the intersection of K and Twenty-First streets would not authorize the jury to find that the electric companies were liable, and not the defendant, if it was negligent in not removing its wire when it ceased to use it at the Bates residence. It is earnestly insisted by counsel that this view of the law is a wrong conception of the defendant's duty, for the reason that it makes the company liable for the wrongful acts of third persons in taking down the wire and hanging it on the pole where it became charged with electricity, which, he claims, are the responsible causes of the injury. This is based on the assumption that there intervened between the neg. ligence of the defendant, if any there was, and the injury to the plaintiff, an independent, adequate cause of the injury, namely, the wrongful act of the electric company, which was the proximate cause of the injury. What is the proximate cause of the injury is ordinarily a question for the jury. It is only when the facts are undisputed that it becomes a question for the court. Wherever, therefore, there is any doubt, the question of proximate cause should be submitted to a jury to be decided as a matter of fact according to the circumstances of the case. To warrant a jury in finding that negligence is the proximate cause of the injury it must appear that the injury was the natural and probable consequence of the negligence, and that it ought to have been foreseen in the light of the attending circumstances. Railway Co. v. Kellogg, 94 U. S. 475. The question, therefore, whether the stretching of the defendant's wire on the electric poles instead of its own poles, and whether the omission of the defendant to remove the same when it ceased to use it at the Bates residence, was negligence, and, if it was, whether the intervening act of the electric company and its consequences were such as could have been reasonably anticipated and guarded against by the defendant, was for the jury to determine in the light of the

facts and circumstances. The record discloses that the electric light company gave the defendant permission to use its poles upon which to string its wire when the defendant needed them to connect its wire to a residence where it had no poles. When the defendant disconnected its wire from the telephone at Bates' residence it had no longer any need to use the electric poles, and the permission or license given to use them ceased, or was at an end, and necessarily the defendant ought to have removed its wire from the electric poles; and if it did not do so, but coiled and hung it on one of them, where it had no right to be, the defendant was bound to look after it, and to expect, if it failed to do so, that the elec tric company would remove it when such wire incommoded that company, or its business required the removal of its poles, as did happen. The jury found that the stretching of the wire upon the electric poles was dangerous, and that the omission of the defendant to remove it, when it disconnected the same from the Bates residence, and ceased to use it, was negligence, and that the intervening act of the electric company and its consequences could have been foreseen as likely to happen, or possibly to follow, from leaving the wire coiled and hung upon the electric pole near the Bates residence, and necessarily that the defendant was responsible for its wire being coiled and hung upon its own pole at the intersection of K and Twenty-First streets. This responsibility is based on the principle that if the defendant, instead of removing its wire, chose to hang it upon the electric pole, where it had no right to be, it was bound to look after it, and that, if the defendant had done so, it would have discovered the removal of the same, and its condition, so that the injury might have been avoided, and consequently that the company must be taken to have foreseen as likely to happen, or possibly to follow, the consequences which resulted from its omission to remove the wire when it was disconnected from the telephone at the Bates residence. This is in accordance with the rule that a person guilty of negligence or an omission of duty "should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would have thought at the time of the negligent act reasonably possible to follow if they had been suggested to his mind." Shear. & R. Neg. § 29. But this phase of the case is met with the argument that the telephone wire itself is not dangerous, and that the main or efficient cause of the injury was the electric current from the wires of the elec tric companies, with the production of which the defendant had nothing to do. In other words, that, if the defendant was negligent,

it was the dangerous force of electricity which intervened, and with the production of which the plaintiff had nothing to do, that communicated the injury to plaintiff, and therefore it was the proximate cause of the injury. It is no doubt true that where there is negligence, and injury following it, and there is also an intermediate cause, disconnected from the negligence, and the operation of this cause produces the injury, the person guilty of the negligence cannot be held responsible for the injury. The inquiry must always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury. Railway Co. v. Kellogg, supra. If the intervening cause and its probable consequence be such as could reasonably have been anticipated by the original wrongdoer, the causal connection between the wrongful act and the injury is not broken, and the defendant is liable for the injury. In Sewing Mach. Co. v. Richter, 2 Ind. App. 334, 28 N. E. Rep. 446, it is said: "Intervening agencies sometimes interrupt the current of responsible connection between negligent acts and injuries, but as a rule these agencies, in order to accomplish such result, must entirely supersede the original culpable act, and be in themselves responsible for the injury, and must be of such a character that they could not have been foreseen or anticipated by the original wrongdoer. If it required both agencies to produce the result, or if both contributed thereto as concurrent forces, the presence and assistance of one will not exculpate the other, because it would still be an efficient cause of the injury." The intermediate cause must supersede the original wrongful act or omission, and be sufficient of itself to stand as the cause of plaintiff's injury, to relieve the original wrongdoer from liability. "One of the most valuable of the criteria furnished us by the authorities," Mr. Justice Miller said, "is to ascertain whether any new cause has intervened between the fact accomplished and the alleged cause. If a new force or power has intervened of itself, sufficient as the cause of the misfortune, the other must be considered as too remote." Insurance Co. v. Tweed, 7 Wall. 52. There is no claim that the wires of the companies transmitting electrical power were not in their proper position, or that the companies were negligent in the use of their wires. We must take it, upon the facts as disclosed by this record, that their wires were where they had a right to be, and were not an obstruction, endangering the life or limb of any one traveling along the street. It was the telephone wire, suspended on a pole, as shown by the evidence, that furnished the means by which the currents of electricity passing over the electric companies' wires were diverted and conducted so close to the ground as to render passage along the public thoroughfare ex

ceedingly dangerous. As a consequence, it was the defendant's wire so hanging upon the pole that furnished the means by which the electrical current was communicated to and injured the plaintiff. It is true that the electrical current was a new power which intervened, and with the production of which the defendant had nothing to do, but it was harmless, or could not have been communicated to the plaintiff, but for the suspended wire of the defendant. As an intermediate cause it was connected with the primary fault, and not self-operating, and therefore is not sufficient itself to stand as the cause of plaintiff's injury. The language of Mr. Justice Bruce clearly illustrates this point: "To say that the agency of the telephone wire in the production of the injury was inferior to that of the electric current, which was the main cause, is not satisfactory. It is, in fact, to admit that the company's displaced wire furnished the means by which the dangerous force was communicated to and injured the defendant in error. True, it was a new force of power which intervened, with the production of which the telephone company had nothing to do, but upon this point, in Insurance Co. v. Tweed, 7 Wall. 52, the court says: 'If a new force or power has intervened, of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote.' The new force of power here would have been harmless but for the displaced wire, and the fact that the wire took on a new force, with the creation of which the company was not responsible, yet it contributed no less directly to the injury on that account." Telephone Co. v. Robinson, 50 Fed. Rep. 813. It thus appears that the defendant's negligence was the primary and proximate cause of the injury. In view of this result the other errors assigned are of little importance, and not such as would authorize the reversal of the case. It results that the judgment must be affirmed.

BAILEY et al. v. LAY et al. (Supreme Court of Colorado. June 19, 1893.) CONTRACT TO CONVEY LAND MUTUALITY-CONSTRUCTION-PLEADINGS.

1. Where a written contract for the sale and conveyance of real property provides that the deed shall be delivered at theme of making the first payment, the agreement to pay and the agreement to deliver are mutual and dependent agreements, and performance, or an offer to perform, by the purchaser, is necessary, to make it incumbent upon the seller to deliver the deed. Such is the general rule.

2. The fact that the delivery of the deed and the payment of the money under a contract are to be accomplished through the organization of an incorporated company, and the issuance and transfer of shares of stock, does not change or affect the application of the rule in regard to time of performance.

3. An averment that the purchaser is ready and willing to accept the property, and make payment therefor, according to the contract, is