On Motion for Rehearing.
Per Curiam.Notwithstanding the able and forceful argument in the petition for rehearing, a reexamination of the chief and controlling point in this case confirms us in the decision heretofore rendered. The other points not referred to in the opinion were carefully considered before the decision, and were deemed without merit. It was believed that they were not of sufficient importance to require a written opinion.
8. The evidence of user by the public of that part of the county road between the railroad track and the river, the testimony that the officers and agents of the company made no claim to an exclusive right to that part of the highway in conversations or negotiations in relation to the matter, and the cross-examination of Mr. Koehler upon that subject, were all competent as evidence of a practical construction by the public and the defendant of the orders of the county court granting to the company the right to use a part of the highway for its track, and also upon the questions of abandonment and adverse user, which were made issues in the case, and submitted to the jury.
9. The attempted cross-examination of the witness Turney as to whether that portion of the highway in contro*301versy had been worked or improved by the road supervisors since the building of the fence was not so connected with the direct examination of the witness as to make the ruling of the court error. Moreover, the fact sought to be elicited was testified to by other witnesses, and, as we understand the record, admitted throughout the trial. Ganong’s evidence that other portions of the county road had been worked and improved by the county authorities was for the purpose of showing a highway by user prior to the construction of the railroad. The defendant company was probably estopped by its contract with the county to deny the existence of the highway, hut nevertheless the evidence could have done it no injury.
The testimony of Apperson, stricken out, that the fence built by the railroad company was intended to be on the line between the railroad company’s right of way and the county road, assumed that there was a difference between the railroad right of way and the county road—the material fact in question. Again, Apperson said that he had no knowledge on the subject other than that of any other citizen of the county, and he was therefore not qualified to testify as to what was intended by the parties. His testimony was not competent for the purpose of contradicting Ganong, because Ganong was the road supervisor at the time the railroad track was changed and the fence constructed,’ and his testimony referred to and was based upon conversations between himself, as an officer of the county, and the agents of the company.
10. The testimony of Young that just prior to and at the time of the injury to the plaintiff he saw wood being thrown from the engine was competent. The witness stood along the side of the railroad track near where the accident happened, and testified that he was watching the train as it passed the plaintiff, and saw some one throw wood and bark from the engine. The evidence of the state-*302merits made by the fireman, Pearl, to Moore, in the barber shop in Oregon City, shortly after the accident, was offered and admitted as impeaching testimony, and the jury were so advised by the court. The modification of instructions referred to in assignments of error 36, 37, 38, and 39 was not injurious to the defendant. The instructions as requested by it were intended to define the duties of the defendant to a mere licensee or trespasser on its right of way, and the modification was for the purpose of advising the jury that the rule stated in the instructions would not apply to a railroad track situated upon a public road or way.
The petition for rehearing will be denied.
Rehearing Denied'.