contained in the answer, the demurrer | conceded that no part of the premium was should have prevailed, but he replied instead. The reply was to matter contained in the special answer. There was no departure. Applying old common-law maxims of pleading, that are equally potent under the Code,-that a bad replication is good enough for a bad plea, and that the demurrer reaches back to the first faulty pleading,-I am compelled to hold that the judgment of the court upon the demurrer was correct. Nor can I adopt the contention that the court erred in its ruling upon that portion of the deposition of Teats in regard to an offer to compromise. It is true that no such evidence is competent, and, had the case been tried to a jury, appellant might have been prejudiced by a failure to suppress it; but, having been tried by a judge familiar with the rules of evidence, the presumption is that it was wholly disregarded, and the gist of the contention seems to be, not that the court acted upon the evidence to the prejudice of the appellant, but that he failed to state that he had disregarded it. It is alleged in the answer that Hoyt was not the agent of appellant, but that he was acting for an agent. No proof was offered upon the trial in support of the allegation. The agency seems to have been conceded. As far as the assured was concerned, there was no question of the agency. Whatever question there may have been between the agent and his principal, he was allowed to act as the general agent, not as a solicitor only of insurance. The policies of the company, executed by its proper officers, were in his possession to be filled and countersigned and delivered by him. He was invested by him principal with all the indicia of a general agent in that locality, and that was sufficient, as far as third parties were concerned. It was established by the evidence of Teats that a special contract was made with him, whereby the cost of the insurance to him was to be $25, instead of $37.50; $10 of which was to be paid at an early day in money, and the balance was to be paid at some future date in assisting in securing insurance upon men in his employ. This contract was not contradicted by appellant, and is conceded. Had it not been, Hoyt could have readily denied it. But one question remains, was appellant bound by the special contract of its agent, Hoyt? Or, in other words, could the agent by such a contract bind his principal, and waive the printed provisions | and stipulations contained in and attached to the policy? "A person authorized to accept risks, to agree upon and settle the terms of insurance, and to carry them into effect by issuing and renewing policies, must be regarded as a general agent of the company pending ne. gotiations; * and the possession of blank policies and renewal receipts, signed by the president and secretary, is evidence of such agency. May. Ins. § 126; Pitney v. Insurance Co., 65 N. Y. 6; Post v. Insurance Co., 43 Barb. 351; Carroll v. Insurance Co., 40 Barb. 292. It is paid until after the insured received the injury. Two days after the injury was received, $10 was paid and accepted. It is contended that the clause, "this policy shall not take effect unless the premium is paid prior to the happening of any accident under which claim is made," is controlling, and, it being shown that it was not complied with, no action could be maintained. Having found by the authorities above cited that Hoyt was a general agent, and a contract was made by him to give time and accept payment in a certain manner, the contention cannot prevail. To give the provision the construction claimed in a case like the present, its illegality would be at once apparent. It is, in any view, of very doubtful validity, and can only be sustained in cases where there was no legal delivery of the policy with the intention of making it operative. In cases where the possession was obtained by fraud, or for the purpose of examination, it might be held to be valid. To apply it to cases where the transaction was consummated and the policy voluntarily delivered to the insured as evidence of the insurance, would at once render the illegality apparent. Take any case where the company insured for a year, for instance, and delivered its policy, and by a contract payinent was not to be made until the expiration of the year, the insured would be held liable to pay for the entire time, whether disabled or not, and, the premium being unpaid, and so to remain until the expiration of the policy, there would be no insurance whatever in case of injury, and no consideration for the premium; consequently, no mutuality of contract. Contracts of insurance must be regarded and construed like all other contracts, so, if possible, as to make them mutual, and effectuate the intention of both parties. While the insurer should be guarded against fraud and misrepresentation, the insured should have indemnity, when guiltless of fraud, upon compliance with the contract as made by him, and no cunningly devised provision or exception in the policy should be so construed as to defeat it. I am clearly of the opinion that the provision requiring payment of the premium could be and was waived by the agent; also that the acceptance by the agent of the payment of $10 after the injury was received was evidence that no default had been made, and was a recognition of the policy as still in force. That a general agent can waive any condition inserted in the provisions of the policy of insurance is established by numerous authorities. See Putnam v. Insurance Co., 4 Fed. Rep. 753; Ball, etc, Wagon Co. v. Aurora F. & M. Ins. Co., 20 Fed. Rep. 232; Joliffe v. Insurance Co., 39 Wis. 117; Insurance Co. v. Fennell, 49 Ill. 180; Washoe Tool Manuf'g Co. v. Hibernia F. Ins. Co., 66 N. Y. 613; Boehen v. Insurance Co., 35 N. Y. 131; Sheldon v. Insurance Co., 26 N. Y. 460; Elkins v. Insurance Co., 113 Pa. St. 386, 6 Atl. Rep. 224. The judgment of the district court should be affirmed. 1. Where, in an action for personal injury caused by a train falling through a bridge, the complaint merely alleges that defendant negligently suffered the bridge to become out of repairs, and to remain in an unsafe condition, there can be no recovery on the ground that the bridge was originally improperly constructed. 2. Where defendant claimed that the bridge was undermined by an extraordinary flood on the night before the accident, and it appeared that extraordinary storms had prevailed for several days, it was a question of fact for the jury whether or not, by care and prudence, the defendant might have discovered the defect; and it was proper to refuse to charge, that, if the jury believe trains had safely passed over the bridge the day before, and on examination it was found safe for passage, and thereafter, during the night, an extraordinary freshet occurred, undermining the bridge, and that defendant could not, by the exercise of ordinary diligence, have anticipated the same, their verdict should be for defendant. 3. A section hand riding on a work train from one place of his work to another, under the charge of the road-master, is fellow servant of the conductor and engineer of such train. 4. A state court does not lose jurisdiction of a cause by making an order transferring it to the circuit court of the United States, when the latter court refuses to entertain jurisdiction. 5. Under Hill's Code Or. § 240, which provides that "any party may, when the evidence is closed, submit, in distinct and concise propositions, the conclusions of fact which he claims to be established; * they may be written and handed to the court, or, at the option of the court, oral, and entered in the judge's minutes, "-it is discretionary with the trial court whether it will require the jury to make special findings, and such discretion is not reviewable. Appeal from circuit court, Wasco county; R. P. BOISE, Judge. This is an action to recover damages for injuries received by plaintiff in a wreck on defendant's road, caused by the giving way of a bridge near the Cascade Locks, and the falling through of a train on which plaintiff was being carried. After the service of process, and before the time for answering had expired, the defendant company filed a general demurrer, and at the same time filed a petition for removal of the cause to the circuit court of the United States, accompanied by the usual bond; whereupon the bond was approved, and an order made transferring the cause to the United States court. Afterwards that court made an order remanding the cause to the state court for want of jurisdiction, and, upon the filing of a properly certified copy of the order, the state court assumed jurisdiction, and proceeded with the trial of the cause. Plaintiff, who is a common laborer, was in the employ of the defendant as a section band on a section of the road near The Dalles, some 40 or 50 miles from the place of the accident. On the day before the accident, the road having become obstructed by land-slides, the plaintiff was ordered by the road-master of defendant to leave his section, and go with the men, in charge of the road-master, on a delayed passenger train of the company, to assist in clearing the road 'Rehearing denied. of slides between the Cascade Locks and Bonneville. The material allegations of the complaint, omitting formal allegations, are as follows: "That on or about the 2d day of February, 1890, and while the defendant was transporting the plaintiff upon its cars from the place where he had previously been employed to a place where further repairs had to be made, the defendant, negligently and carelessly, permitted its line of track, and the bridges thereon, to become and remain out of repair and unsafe, and negligently and carelessly failed to properly inspect said line of track and bridges, and to keep proper watch and oversight over the same, and to ascertain and report the condition thereof; and especially of a certain bridge on the line of said road situated between Cascade Locks and Lower Cascades, over and across which the plaintiff was required to go to get to the place where the defendant required his services as aforesaid, and which bridge the defendant negligently and carelessly permitted to become and remain out of repair, and in an unsafe condition, and negligently and carelessly failed to keep a proper watch and oversight over the same as aforesaid, and negligently and carelessly failed and omitted to ascertain the condition of the same, and to report it to the officers in charge of the train upon which the plaintiff was being carried as aforesaid. That while the plaintiff was being carried across the said bridge by the defendant, in its cars as aforesaid, by reason of the defective and unsafe condition of said bridge, and. by reason of the failure of the defendant to keep a proper watch and oversight, and to ascertain and report the condition thereof to the officers in charge of said train upon which the plaintiff was riding, and by reason of the negligence and carelessness of the defendant's said officers in not keeping a proper lookout and in operating said train, the said bridge, and the railroad track upon the same, gave way, and the plaintiff was precipitated through the same, whereby he was greatly bruised,” etc.; pleading permanent injury. The train upon which plaintiff was being carried left The Dalles in the forenoon of the day before the accident, and reached the Cascade Locks at 2:30 P. M. Communication was there had with the train dispatcher at The Dalles, who had charge of trains on that division of defendant's road, and the train was given "working orders" between the Locks and Bonneville, 4 miles, which entitled it to run in either direction between these points, as against all other trains. The train then proceeded, west bound, passing over bridge No. 68, the giving way of which caused the accident, and found the slide about a half a mile west of this bridge. The workmen, some 20 or 30, under charge of the road-master, commenced to remove the slide, and continued to work until about dusk, when they walked back to the Cascade Locks for the night, the train having in the mean time returned to the Locks. The next morning more men were procured, who, with the engine and a caboose, the passengers and coaches having been left at the Locks, proceeded, west in the matter; but when it was ascertained that the order for removal was improper, and that the United States court did not have jurisdiction, the cause re bound, to the scene of the wreck the night before; and while passing over the bridge in question it gave way, letting the caboose and all the men into the bottom of the creek, killing several, and severely in-vived in the state court, and should have juring others, plaintiff being one of the latter. The defendant by its answer denied the negligence charged or any negligence; pleaded the negligence of fellow-servants, and of the plaintiff, as causing and contributing to the injury; also that the alleged accident was caused by a freshet arising from natural causes, without the fault and knowledge of defendant, which had arisen during the night and morning preceeding the accident; and alleging that as at the time of the injury the plaintiff, with other workmen, was out upon the defendant's road engaged in repairing and keeping the same open from obstruction thereon arising without the fault of defendant, and arising from natural causes, the accident occurring and injury sustained thereby, if any, was a part of the risk of the employment of the plaintiff. The reply put in issue the affirmative matter pleaded. The trial resulted in a verdict and judgment in favor of plaintiff, from which this appeal is taken. Zera Snow, for appellant. A. S. Bennett, for respondent. BEAN, J., (after stating the facts as above.) The record contains numerous assignments of error, based upon exceptions duly taken to the ruling of the court, during the progress of the trial, on the admission of testimony, and its giving and refusing instructions to the jury. We shall proceed to examine such of these as we deem material. 1. It is contended by appellant that the court below lost jurisdiction of this cause by the petition of defendant for removal to the circuit court of the United States, and by the order approving its bond, and transferring its cause to that court. The circuit court of Wasco county had, under the constitution and laws of the United States and of this state, original jurisdiction of the subject-matter and of the parties in this case. That jurisdiction was formally invoked by the filing of a complaint and service of process on defendant, and the court was in the exercise of its unquestioned powers in the premises when the petition for removal was filed by defendant. Upon the filing of the petition and bond, the circuit court for Wasco county passed the order required by the statute of the United States governing the removal of causes from the state to the federal courts, but the federal court refused to entertain jurisdiction, and remanded the cause to the state court, and its decision on that question is final. In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. Rep. 141. It follows, therefore, that the cause never has in fact been removed to the circuit court of the United States. The removal is not complete until the United States court has taken jurisdiction, and this it has refused to do, so that the state court never lost its jurisdiction. When the circuit court of Wasco county granted the application for removal of the cause, it simply declined to proceed further been proceeded with as though no order of removal had been made. Thacher v. McWilliams, 47 Ga. 306; Ex parte State Ins. Co., 50 Ala. 464. 'In Railroad Co. v. Koontz, 104 U. S. 15. Mr. Chief Justice WAITE, in discussing the proceedings in the United States court on a motion to remand a cause removed from the state court, said: "When the suit is docketed in the circuit court, the adverse party may move to remand. If his motion is decided against him, he may save the point on the record, and after final judgment bring the case here for review, if the amount involved is sufficient for our jurisdiction. If, in such a case, we think his motion should have been granted, we reverse the judgment of the circuit court, and direct that the suit be sent back to the state court, to be proceeded with there as if no removal had been had.'" So in Insurance Co. v. Francis, 52 Miss. 466, Mr. Justice CAMPBELL says: "An order for removal in a case not embraced by act of congress is void, and has no effect in legal contemplation, and, although its practical effect may be an interruption improperly of the prosecution of the cause in the state court, the cause is to be considered as having been all the time pending in the state court, which delayed to see if the United States court would take jurisdiction, and, finding it would not, proceeds to try the case thus remitted to it as though no interruption had occurred." 2. The next contention of appellant is that evidence was received and a verdict permitted by instructions upon a ground of liability not pleaded. On the trial evidence was given and received, under defendant's objection, which it was claimed tended to show that the bridge which fell and caused plaintiff's injury was a defective structure, and originally improperly and negligently constructed. At the proper time the defendant requested the court to charge the jury that, in so far as this case is concerned, the bridge in question must be assumed to have been constructed in a proper manner. This the court refused to do, but, at the request of plaintiff, instructed the jury that, if it appeared from the evidence that the bridge had been improperly or negligently constructed, and by reason thereof the plaintiff was precip itated through the same and injured, while being carried by the defendant to the place where he was to be employed, he was entitled to recover. The point of the objection is that the complaint only charges negligence in keeping the bridge in repair, and in failing to keep a proper watch and oversight over it, in order to ascertain its condition. This brings us to the allegations of the complaint. The cause of action stated in the complaint is that "defendant negligently and carelessly permitted it [bridge] to become and remain out of repair, and in an unsafe condition, and negligently and carelessly failed to keep a proper watch and oversight over the same, and negligently and carelessly omitted to ascertain the condition of the same, and to report it to the officers in charge of the train upon which plaintiff was being carried. These are the only acts of negligence charged in the complaint, so far as the bridge is concerned, and the only ones that defendant was called upon to defend against, and, as necessary consequences, the evidence on the part of plaintiff must be directed to the proof of the negligent acts charged, and the instructions of the court must be confirmed to its allegations and proof. The plaintiff cannot aver negligence in one particular, and on its trial prove that defendant was negligent in another particular. The object of a complaint is to apprise the court and opposite party of the facts relied upon for a recovery so plainly that the defendant may be prepared to meet them. This object of a pleading would be entirely defeated if a plaintiff had a right to aver in his declaration one ground of action, and on the trial prove another and different one. As was said by EARL, J., in Southwick v. Bank of Memphis, 84 N. Y. 429: "Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action, and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary." There is no doubt that it is the duty of a railroad company to furnish for the use of its employes a reasonably safe track, which necessarily includes bridges, and to exercise reasonable care to keep and maintain the same in a good and safe condition, to secure as frequent and thorough inspection of its road-bed and track as under the circumstances may reasonably be necessary for the purpose of discovering any defects therein, to exercise care in the selection and retention of its servants, and to adopt such rules and regulations as may reasonably be necessary to guard against accident; and if the master fails to perform any of these duties, and a servant is injured, he is liable in an action for damages suffered by such servant, and any duty which the master is required to perform for the safety of his servant cannot be delegated to any serv. ant of any grade, so as to exempt the master from liability for an injury resulting to a servant from its non-performance. Anderson v. Bennett. 16 Or. 527, 19 Pac. Rep. 765; Hartvig v. Lumber Co., 19 Or. 522, 25 Pac. Rep. 358; Miller v. Railroad Co., (Or.) 26 Pac. Rep. 70. The measure of the master's duty in these respects is to exercise due care, and prima facie he is presumed to have done so. Thus, when a railroad company builds its road, lays its rails, erects its bridges, and stocks it with machinery and cars, it is presumed to have done so with due care, and is not liable to a servant for any defect therein, unless negligence can in fact be shown in reference to the particular matter producing the injury. Warner v. Railroad Co., 39 N. Y. 468; Wood, Mast. & S. § 346. Therefore, if a servant is injured by defect in the appliances or the instrumentalities of its business, he must show some fault on the part of the master, as that he did not exercise due care in providing them originally, or that he did not exercise such care in keeping them in repairs, and a complaint, in an action for such injury, must allege the particular duty which the master failed to perform. The duty of a master to exercise due care in providing proper and suitable instrumentalities and appliances is as separate and distinct from the duty to exercise such care to keep them in repairs after having so furnished as it is from its duty to exercise care in the employment and retention of servants. Under a complaint by an injured servant, charging the master neglected to exercise proper care to keep the appliances of its business in repair, it would not for a moment be claimed that a recovery could be had for the neglect of the master in not employing competent servants, or in promulgating suitable and proper rules for the government of its business, and with no more reason can it be argued that a recovery can be had for the neglect of the master in providing the appliances in the first place. It is the duty of the master to exercise reasonable care to provide safe and proper appliances for the use of a servant, and a continuing duty to exercise such care to keep such appliances in proper repair, and for a violation of either he is liable in damages to an injured servant; but the complaint must charge negligence in reference to the particular matter producing the injury, and the evidence and instructions of the court should be confined to issues made in the pleadings. In cases of this character the complaint should point out specifically the neglect complained of, and the trial should be had on the issue thus made. As was said by THAYER, J., in Scott v. Navigation Co., 14 Or. 228:1 "The law unfortunately can only lay down the general rules for the guidance of the two classes, (master and servant.) It can declare generally the obligations they are under, but its application can only be made to the facts and circumstances of the particular case, and it is often rendered more uncertain by failure on the part of the court administering it to require parties in the pleading to point out specifically the acts of negligence complained of, and to confine investigations strictly to such charges. As we have already said, the object of the pleading is to apprise the court and opposite party of pleader's claims. Certainly to a common intent it is all that is required, and this is attained in action for damages resulting from negligence, when the neglect of duty relied on and the resultant injury are described with substantial accuracy; but as the duty of a master to provide reasonably safe instrumentalities and appliances for the use of his servants, and the duty to exercise due care to keep them in repair after being so furnished, are separate and distinct duties, a charge of negligence in one will not be supported by proof of negligence in the other. Hence where the complaint in an 113 Pac. Rep. 98. purpose of showing the particular man- action against a railroad company for | pendent ground of liability, but for the personal injuries alleged, as the grounds for plaintiff's claims, negligence on the part of the company in running its trains over a portion of its track which had been undermined and rendered dangerous by flood of waters, plaintiff is not entitled to recover for defects in the road-bed, or in the ties or material used on the road.' Ely v. Railroad Co., 77 Mo. 34. So where the complaint alleges that, by reason of defendant's negligence in having and using insufficient and defective machinery, and the proof is that the injury was caused by a broken frog, which caused plaintiff to fall, he cannot recover. Waldhier v. Railroad Co., 71 Mo. 514. So, when the complaint alleged that plaintiff's injury was occasioned by a deep hole between the rails, and the evidence was that it was between the rails of a side track, it was held that the complaint would naturally be construed to refer to the main track, and that the variance was material. Batterson v. Railway Co., 49 Mich. 184, 13 N. W. Rep. 508. So when the injury is alleged to have been committed by the defendant carelessly running its train against a horse, it is not competent for the plaintiff to prove that the railroad track was not fenced, or that the cars were not provided with air-brakes, or any other negligence than that averred. Railway Co. v. Foss, 88 Ill. 551. In this case the complaint does not aver that the defendant did not exercise proper care in the original construction of the bridge in question, but permitted, presumedly, a safe bridge to become out of repair. That was the only issue presented by the pleadings, and the only one that should have been tried. It is clear, therefore, that although its construction, as an abstract proposition, may be unobjectionable, the vice of it lies in its inapplicability to the issues made by the pleadings. It authorized the jury to find a verdict upon a liability not pleaded, and we have repeatedly held it to be error for the court to give the jury instructions, however correct, as abstract propositions of law, if not within the issues. Willis v. Navigation Co., 11 Or. 257, 4 Pac. Rep. 121; Breon v. Henkle, 14 r. 494, 13 Pac. Rep. 289; Roberts v. Parrish, 17 Or. 583, 22 Pac. Rep. 136; Woodward v. Navigation Co., 18 Or. 289, 22 Pac. Rep. 1076. The instructions could not do otherwise than mislead the jury upon a vital point in the case, and, although the court on its own motion may have stated the issues correctly to the jury, such fact would not cure the error, as it is impossible to tell which instructions the jury adopted to guide them in their deliberations, or upon which liability they based their verdict. The charge being that defendant negligently and carelessly suffered and permitted the bridge to become out of repair, and in an unsafe condition, it was incumbent on the plaintiff to prove that the bridge was in such condition, and that it resulted from defendant's negligence. It was, we think, competent for plaintiff to prove the manner in which the bridge was constructed, not as an inde We 3. Plaintiff alleges as one of the grounds of recovery that, "by reason of the negligence and the carelessness of the defendant officers in not keeping a proper lookout, and in operating the said train, [referring to the train upon which plaintiff was riding at the time of the accident,] the said bridge and the railroad track upon the same gave way."etc. As an answer to this cause of action, the defendant, among other things, relied, both in the pleading and proof, upon the proposition that the engineer and conductor on the train were, at the time of the accident, fellow-servants of the plaintiff, for the negligence of whom defendant was not liable. In the disposition of this question it must be kept in mind that the train had, on the day previous, ceased to be a passenger train, but had become a work train, and at the time of the accident was, with the workmen aboard, patroling the road, under the direction of the road master, for the purpose of opening the same by removing any obstruction which may have accumulated thereon. When the train left the Cascade Locks on the morning of the accident, it was for the purpose of opening up the road, and the conductor and engineer were engaged in the same common employment with plaintiff. There was one general object to be attained. They were each engaged in furthering the same general object, and under the direction of the same road master. They were as much at work while riding on the train as when actually engaged in removing obstructions, although at the time of the accident plaintiff had no active duty to perform. The fact that he had no active duty to perform while riding from one point of work to another did not make him any the less an employe during those times. He could not be an employe while at work at one place of obstruction, and while riding to the next become |