Plaintiff acquired his lands in the year 1913 and more than two years after the con struction of the bridge and embankments, as they existed at the time of the 1914 flood.

The case was tried to a jury, which returned a general verdict in favor of plaintiff, assessing his damages at $1 and costs. Judgment was render accordingly, plaintiff's motion for a new trial overruled, and plaintiff appeals.

Among other assignments of error, it is contended by plaintiff in error: (1) That the verdict and answers of the jury to the special interrogatories were contrary to the law and the evidence, and not supported by any of the evidence, and that the jury erred in the assessment of the damages; (2) that the lower court erred in giving certain instructions and in refusing certain requested instructions; and (3) that the court erred in instructing upon the theory of the defend ant and not instructing upon the theory of plaintiff.

Defendant in error, in its brief on the merits, submits a motion to dismiss the appeal apon the ground that the case-made does not contain a recitation that it contains all of the evidence, and points out evidence not contained by the case-made, namely, Ex hibits 1 and 2, and objects to a consideration of the questions raised on account of such alleged defects in the record.

The fact that the case-made does not contain all of the evidence is not necessarily ground for the dismissal of the appeal. Section 5241 of Revised Laws 1910 specifieally authorizes the making of a case, which may contain only so much of the evidence as is necessary to present questions proposed on appeal, or none of the evidence if it is unnecessary to a consideration of propositions advanced; and section 5243 specifically provides that the appeal shall not be dismissed, even when the evidence is stated in a manDer insufficient for the purposes for which the case is made until an opportunity is given to correct the deficiency. See St. Louis & San Francisco Railroad Co. v. Taliaferro, 61 Oklahoma, 160 Pac. 610.

However, in this case, in order to deter mine the propositions presented, a consideration of the evidence is essential; and it, therefore, becomes necessary to determine the sufficiency of the case-made, as showing the evidence.

While the case-made does not contain a recitation of its contents upon one formal recital sheet, immediately preceding the of ficial certificate, as is the customary prac

tice, yet it does contain a formal, orderly, sequential recital of the case in the lower court, including the evidence, and, as conforming to the statutory rules of pleading (section 4737, Revised Laws 1910), in fact shows, in ordinary and concise language, as effectually as if specifically set forth in the customary, stereotyped, formal recital at the end of case made, that the necessary proceedings are therein contained. In addition to this, at the close of the evidence, on page 363 of the case-made, is a formal recitation that the case-made contains all of the evidence. This court has held that the position of the recital in the record is immaterial, so long as the case substantially shows that it contains the necessary proceedings, and that the orderly and sequential recital of the proceedings, as hereinabove mentioned as existing in this case, followed by the rule certificate of the trial judge (the certificate in this case is in the language of the rule of this court, rule 17) attested by the clerk, imports verity, and is a substantial showing that the case contains all of the evidence and other proceedings. De Bolt v. Farmers' Exchange Bank, 46 Okla. 258, 148 Pac. 830; Higgins v. Street, 19 Okla. 42, 92 Pac. 155; American Steel & Wire Co. v. Coover, 27 Okla. 131, 111 Pac. 217, 30 L. R. A. (N. S.) 787. And see St. L. & S. F. R. Co. v. Taliaferro, supra.

Under the above rule, the original casemade was sufficient, but for the fact that defendant in error, in its brief, filed before the amendment hereinafter mentioned, pointed out that, as a matter of fact, the casemade did not contain all of the evidence, in that Exhibits 1 and 2, being the muniments of title of plaintiff, were omitted from it. Decisions from this court are cited, holding that where the showing of the case-made that it contains all of the evidence is contradicted by the record itself, the record will control. Upon this showing of the omission of Exhibits 1 and 2, leave was granted to correct the case-made; and an amendment to the case made has been filed, supplying the omitted exhibits.

In connection with the objection of defendant in error that Exhibits 1 and 2 were omitted from the case-made, defendant in error asserts that the certificate of the stenog rapher is not sufficient. This objection goes to the fact that the stenographer's certificate to the evidence, in referring to the exhibits and documentary evidence, states that his record contains all exhibits and documentary evidence "possible to be transcribed." It should be borne in mind that the objection

of defendant in error only points out the omission of Exhibits 1 and 2, which have been supplied by the amendment. In our examination of the record we find that it does not contain some samples of dirt, taken from the overflowed lands, and introduced in evidence as exhibits to defendant's evidence. We do not know how these exhibits could have been copied into the record, or the substance of them shown in the briefs of the parties, if the strict letter of the rule would have to be followed in such a case. certificate of the stenographer was apt, and the exhibits were not "possible to be transcribed," and under these circumstances, we shall hold that it is not necessary for plaintiff in error to do the impossible to save his rights on appeal.

The

The rule seems to be that where a physical object is introduced in evidence which is too bulky or cumbersome to be incorporated in the case-made, or otherwise impracticable of incorporation therein, a description of such object is sufficient. 3 Cyc. 27 (note 19); Colby v. Herron, 88 Ill. App. 299; Seaverns v. Lischinski, 82 Ill. App. 298; Pierce v. Edington, 38 Ark. 150.

The soil exhibits in this case were used by witnesses, and are sufficiently described for the purpose of presenting their evidentiary effect.

An engineering blueprint was offered to and used by witnesses in giving their testimony, and identified as Exhibit 10, and this does not appear in the case-made. We do Lot find where it was introduced in evidence. Maps, drawings, etc., used to illustrate the evidence of witnesses, and not put in evidence, need not be copied into the case-made. Albion Consol. Min. Co. v. Richmond Min. Co., 19 Nev. 225, 8 Pac. 480, 3 Cyc. 58, notes. This exhibit would be about as difficult of translation into the case made by a stenographer not a skilled engineer, as the soil exhibits. It was fully delineated, described, and explained by the testimony of witnesses; and its physical presence is not necessary under the rule above announced.

In the lower court defendant in error suggested no amendments to the case-made, at the settlement of either the original or amended case-made. Our statute (section 5244, Revised Laws 1910), after providing for notice of settlement of case, suggestion of amendments, etc., contains this provision, viz.:

And if no amendments are sug gested by the opposing party, as above provided, said case shall ie taken as true and

containing a full record of the cause, and certified accordingly." (Emphasis ours.)

This statute recognizes the right of a party to have the case-made show proceedings material to his side of the case, and provides a default on his failure to act. By his silence, the party says to the lower court:

"This record is a true and complete casemade, and contains everything necessary to present my side of the appeal."

Such action is a waiver of the incorporation of exhibits, where the exhibit is described in the record, and the substance of the testimonial value of the exhibit is in the record. See Sharon v. Sharon, 79 Cal. 633, 22 Pac. 26, 131.

This record, as heretofore pointed out, contains an orderly, sequential statement of all the proceedings in the case, including the evidence, together with the recital that it contains all of the evidence. Its only impeachment was as to the omission of Exhibits 1 and 2, which have been inserted by amendment. The only points of omission now lie in the exhibits, which were impracticable of original incorporation or of present correction, but which are sufficiently described; and defendant in error, the case-made being substantially correct, has defaulted in its right to object to technical imperfection. The motion to dismiss will be overruled; and the record will be held to be sufficient to present all questions raised on the appeal, including the sufficiency of the evidence.

Defendant in error contends: (1) That the bridge and embankment were permanent structures, that injury to the land of plaintiff resulted as a permanent injury at the time of the erection of the structures and prior to the acquisition of the land by plaintiff, and that plaintiff, having acquired the land subsequent to the permanent injury, had no cause of action for injuries arising subsequent to his acquisition of the land; (2) that the right to maintain the bridge and embankment was a federal guaranty; (3) that the bridge and embankment were constructed and maintained without negligence, but with due skill and care, pursuant to the federal guaranty above mentioned; and that these matters considered, the verdict and judgment should be sustained.

The general verdict was for plaintiff. This was a finding of negligence in the construction and maintenance of the bridge and embankments. Defendant did not appeal, and thus may not present the absence of the liability established by the verdict and judgment, except possibly as bearing upon harm

less error in the assessment of plaintiff's damages. All of the instructions, the giving and refusal of which are assigned as error by plaintiff in error, as well as those bearing upon the theory of defendant to the exclusion or omission of the theory of plaintiff, went to the question of the liability of defendant to plaintiff, and did not affect the measure or amount of the liability, or rather damages. The general liability, as distinguished from its measure, having been established by the verdict and judgment in favor of plaintiff, errors in instructing upon the general liability, adversely to plaintiff, are ct material to this appeal, except in so far as they may have tended to confuse the issnes, generally, in the minds of the jury, in arriving at the measure of liability, if such be the probable consequence. The real issues here, therefore, are: (1) The sufficiency of the case-made; (2) error in the assessment of the amount of recovery; and (3) harmfulness in the error, if any, in the assessment of the amount of recovery, which amounts to an inquiry as to whether the verdict, finding the existence of general liability, was supported by any evidence and is in harmony with the law. The latter proposition will involve a consideration of the instructions.

As above stated, the verdict was for the plaintiff, assessing his damages in the sum of $1. We have carefully read and considered the entire record. The finding in favor of plaintiff is amply supported by the evidence, but the assessment of the damages in the nominal sum of $1 has no evidential foundation whatsoever. Liability being established (and the verdict found it to exist), there is not one word of evidence in the record which could possibly warrant the assessment made. Plaintiff and defendant both proved the destruction of plaintiff's crops of, approximately, six acres of alfalfa, 55 acres of growing wheat, and 75 acres of corn, the killing of his chickens (according to the evidence of plaintiff, 182 in number), the washing away of his house and barn, and the deposit of a thick stratum of sand over his farm. Plaintiff's witnesses testified to his damages in the sum of about $3,000. Defendant's witnesses testified that the value of the destroyed crops alone was over $600. The special findings of the jury were to the effect that plaintiff was damaged nothing by reason of the destruction of his crops, and the injury to his house, barn, and land, and found that he was only damaged in the sum of $1 for loss of chickens. These findings were contrary to all of the evidence. The general verdict in reality was for $1 for

the loss of chickens, and yet there was no contradiction of the evidence of plaintiff that he lost 182 chickens of the approximate value of $60. No syllable of evidence distinguished the cause of the loss of any chicken from the cause of the injuries to the remainder of the property. All of the evidence showed that all of the injuries were occasioned by the same agency, which the jury found to have been the result of defendant's negligence in the construction and maintenance of its bridge and embankment.

The only explanation of the assessment of damages by the jury at $1, deducible from the record, is that the jury was dissatisfied and confused by the instructions of the court; that the nine members of the jury signing the verdict must have felt that, under the instructions of the court, the law was not such that they could comply with their oaths and administer justice; and that they renddered this verdict as a protest against what they considered an unjust condition of the law, and one which they refused to follow to the extent of taxing the costs against plaintiff.

The charge of the court was virtually a direction of a verdict for defendant upon the question of liability. Instructions numbered 10, 12, and 13, read as follows, viz.:

"(10) You are instructed that under the law it was the duty of the defendant railway company, in the location and construction of its railroad line, to construct its bridges across streams in such manner as to offer the least resistance to the current of the stream, and, having done so, that it cannot be charg ed with the changing of the course or bed of the stream in such manner as to impair the efficiency of its bridge structure, after the same has been permanently built, and if you find from the evidence in this case that the bridge of defendant across the stream at the place complained of was originally located at right angles to the stream, so as to present as small resistance as possible to the flow of waters, and that afterwards the change in the course of the stream caused the current of the stream to strike the bridge at a different angle, and not in a line straight with the opening of the bridge; that this was a matter over which the defendant cannot be held to be responsible. And if you find that when the bridge was constructed it was located at right angles with the stream, and that any of the injury or damage was caused to the plaintiff, by reason of the current of the river, in the flood of 1914, striking said bridge at a different angle from that which existed when constructed, then you will not charge the defendant with such damage."

"(12) The defendant company may construct embankments and dykes to protect its

properties, and to make safe its operation of its road from encroachments of the stream, and from superabundant water in times of flood, but in doing so it must place the embankment and dykes that the natural and probable consequence of such embankment any dykes in times of ordinary flood, will not be caused to overflow the lands of others, and, unless you find from the evidence that the defendant company constructed a dyke and embankment of such excessive size and at such improper places, and in such negligent manner, as would naturally be expected to cause the injuries complained of, then you should find for the defendant.

"(13) By the term 'permanent structure' is meant such a structure as by reason of its size, weight, durability, and use will endure without material alteration except through human labor, and is such as from its own nature remains in the position, and substantially in the condition, in which it was constructed, except for the ordinary repairs made necessary by the use thereof for the purposes for which it was designed."

The first part of instruction numbered 10 assumed that the bridge was a permanent structure; and, on this assumption, the latter part of the instruction directed the jury that no change in the course of the stream in its relation to the openings in the bridge could give rise to a duty upon the part of defendant to alter the openings in the bridge to meet the changed conditions, and that defendant would not be liable for damages caused by the openings of the bridge not carrying off the waters of the stream if such waters, at the time of the flood in question, struck the bridge at a different angle from the angle formed by the stream and bridge at the time of the construction of the latter. The instruction overlooked the relations of the embankment to the change in such angle, and to the causes of the injury, and no other instruction supplied the omission.

Under

invaded this province of the jury. If the structures were not permanent. in the sense hereinafter set forth, a change in conditions would undoubtedly have given rise to new duties upon the part of the railroad company, a consideration of which alternative by the jury was foreclosed by the instruction. The instruction overlooked the relations of a flood, extraordinary or otherwise, to the construction of the bridge and to any altered relations between the stream and structures: while all of the evidence showed that the bridge and embankment were constructed in the year 1905 or 1906, immediately following a similar flood and overflow in 1904, giving rise to a duty in the railroad company to contemplate and prepare for the recurrence of such a flood in the future.

Instruction No. 12 predicated the liability of defendant upon failure to construct the bridge and embankment in such manner as to carry off the waters in times of ordinary flood; while the entire cause of action of plaintiff was based upon injuries resulting from extraordinary flood, which was within the known flood conditions of the river, as evidenced by results of the flood of 1904. The instruction, in this, violated the principles laid down by this court in the case of Missouri, K. & T. R. Co. v. Johnson, 34 Okla. 582, 126 Pac. 567, where it was held to be the duty of the railroad company, in the construction of such a bridge and embankment, and in the maintenance thereof, to meet the known flood conditions of a stream, even though such conditions be extraordinary, and that before the unusual condition, as an act of God, may relieve the liability, it must be the sole cause of the injury as not being coupled with negligence. This rule has been consistently followed by this court in the cases hereinafter cited in our comment on the thirteenth instruction. Plaintiff requested an instruction in line with the doctrine of the Johnson Case, supra, which was refused.

Instruction No. 13, supra, while probably in one sense a correct definition of the term "permanent structure," was too restrictive in its application, as a legal term, in this case. This court has repeatedly held that:

"When a cause of injury is abatable, either by an expenditure of labor or money, it will not be held permanent." City of Ardmore v. Orr, 35 Okla. 305, 129 Pac. 867; A., T. & S. F. R. Co. v. Eldridge, 41 Okla. 463, 139 Pac. 254; St. L. & S. F. R. Co. v. Ramsey, 37 Okla. 448, 132 Pac. 478; C., R. I. & P. Co. v. McKone, 36 Okla. 41, 127 Pac. 488, 42 L. R. A. (N. S.) 709; C., R. I. & P. R. Co. v. Morton, 57 Okla. 711. 157 Pac. 917.

This court in City of Ardmore v. Orr, supra, quoted and expressly disapproved an authority which laid down the rule included in this instruction.

It may be said that, in its exact expression, this rule bears a contradiction, in that every human edifice might be altered by the expenditure of labor or money, and that therefore, under the strict letter of the rule, no artificial improvement could be permanent However, the spirit of the rule contemplated an extension of its effect, not expressly stat e in the former decisions of this court. Giv ing it such an express extension, the rule would be that a negligent condition in an artificial structure, permanent in its nature, will not be held permanent if such negligent condition is abatable by an expenditure of either labor or money and such abatement is consistent with the rightful use and maintenance of the structure.

Plaintiff requested an instruction in the language of the rule as sustained by the above cases, and it was refused. The abatableness of negligent conditions originating in the construction of the bridge and embankment, if such negligence existed, was a necessary element of the cause of action of plaintiff for maintaining the condition; for negligence in construction, as distinguished from its continuance in the maintenance, had occurred long prior to the acquisition of the lands by plaintiff, and was long since barred by the statute of limitations, if the injury would necessarily have resulted from the negligence in construction. Under the instruction as given, the duty to abate, where it could reasonably be done, was not recognized; and, under the tenth and twelfth instructions, supra, nothing was left to the jury but to decide for the defendant.

These instructions are noted here as bearing upon and explanatory of the peculiar result reached in the verdict. In our opinion, the jury was confused by the instructions, and this confusion resulted in an erroneous assessment of the damages. This court has held that:

"Where a verdict cannot be justified upon any hypothesis presented by the evidence, it will not be allowed to stand." Earley et al. v. Johnson, 58 Okla. 466, 160 Pac. 482.

The part of this verdict which assessed plaintiff's damages violates this rule, and the verdict should be set aside.

Defendant in error contends, in effect, that the verdict and judgment, if erroneous, have not resulted in harm to any rights of plaintiff in error, because, as contended by

it, under every condition of the evidence and record plaintiff in error had no cause of action, for the following reasons, to wit: (1) That the right to construct and maintain the bridge and embankments was a federal guaranty under the Congressional grant of right of way and franchise hereinabove mentioned; and (2) that the bridge and embankments were permanent structures, erect ed and causing the injuries, if any, as permanent injuries, long prior to the acquisition of the land by plaintiff.

The proposition of federal guaranty is clearly not applicable to the situation. The contention of plaintiff was that his injuries resulted from negligence in the construction and maintenance of the bridge and embankment. It can hardly be contended that the federal grant would convey the right not to exercise diligence, or rather the right to be guilty of wrong or negligence. There is no showing of a specific grant of the right to flood lands adjacent to the right of way granted, and we cannot believe that Congress could have intended or implied the right and franchise to construct and maintain the railroad, with its bridges and embankments, in any manner except such as is consistent with the general legal duty of a railroad under similar conditions, which is defined in the cases from this court hereinabove cited. conclusion here is the same as was reached by this court in the following cases, viz.: A., T. & S. F. R. Co. v. Eldridge, 41 Okla. 463, 139 Pac. 254; C., O. & G. R. Co. v. Drew, 37 Okla. 396, 130 Pac. 1149, 44 L. R. A. (N. S.) 38.

Our

We cannot agree with the theory that plaintiff cannot recover because the bridge and embankments were permanent structures, erected and causing the injuries, if any, as permanent injuries, long prior to the acquisition of the land by plaintiff. The question of the permanence of the structures was one for the jury, under proper instructions. While, in answer to a special interrogatory, the jury found that the structures were permanent as defined in the instructions, the definition of the term "permanent structure," in the instructions was not suffi- ̧ ciently broad to meet the rule announced by this court, as hereinbefore stated. There was a conflict in the evidence upon this question, and under a proper instruction, the finding of the jury might have been different.

Regardless of the question of the permanence of the improvements, the right of action for injuries does not necessarily accrue at the time of the construction of the im