the plaintiff. The evidence shows that the point where the plaintiff was struck is in the rural district, and that there was no real need of a low rate of speed at that point. The evidence showed that, according to the rules of the defendant, the rate of speed at that point was not allowed to exceed 60 miles an hour; but there was no other limit in the company's rules. ran said train at a high and dangerous rate rate than 20 miles an hour when it struck of speed"; (b) that the defendant's employés and servants, in operating said train, "carelessly and negligently failed to give any warning to the plaintiff of the approach of said train, and carelessly and negligently failed to ring the bell or blow the whistle of said train as said train approached the plaintiff, while in the performance of his duty as aforesaid, and that the plaintiff, because of the careless and negligent acts of the defendant's servants and employés, as aforesaid, suffered a compound fracture," etc. The foregoing are all of the negligent acts and omissions of which the plaintiff complains. The acts or omissions complained of are the alleged high and dangerous rate of speed at which the train was running; the failure of the employés and servants of the defendant to give to the plaintiff warning of the approach of the train; and the failure to ring the bell or blow the whistle of the train as it approached the plaintiff. The plaintiff's right to recover is based on said allegations of negligence, and no other negligent acts or omissions can be considered by us. The pleadings do not allege, nor does the evidence show, that the state of Washington has any law or rules regulating the speed of trains applying to the locality where the plaintiff was injured. There was no evidence tending to show that the defendant's train that struck the plaintiff was running at a high or dangerous rate of speed when it struck him, and hence there was a failure of proof on that point. [8] 4. The other allegations of negligence relate to the failure of the employés of the defendant to give to the plaintiff any warning of the approach of the train and their failure to ring the bell or blow the whistle of the train as it approached the plaintiff. The evidence shows that the plaintiff was [6] Section 725, L. O. L., provides that the struck before 7 o'clock a. m. on February evidence shall correspond with the substance 3, 1913, and that it was not yet daylight, of the material allegations, and be relevant and that it was foggy at that point. The evito the questions in dispute, and collateral dence shows also that the employés of the dequestions shall therefore be avoided. There fendant in charge of the train did not see is no allegation that the employés of the de- the plaintiff at all before he was struck, and fendant neglected to keep a lookout for the that they did not give any warning or ring plaintiff on the track, or that they were the bell or blow the whistle. They did not guilty of negligence in not seeing him on the know that he was there, and they passed on track or in not stopping the train before it without knowing that he had been struck. reached him. These matters not having been There is no conflict in the evidence on this alleged, evidence to prove them was irrele- point. All admit that it was yet dark and vant. The plaintiff during the trial asked foggy, and that no signals were given, nor leave of the court below to amend his com- was any bell rung or whistle blown. It is plaint, so as to allege that the defendant neg-shown also that the trainmen did not see lected to keep a lookout for the plaintiff on the track, etc., but the proposed amendment was not allowed. The refusal of the trial court to permit this amendment is not assigned as error. We do not say that these matters should have been have been pleaded. We merely call attention to the fact that they were not pleaded, to show upon what narrow ground the plaintiff bases his right of action. In order that he should have a right to a verdict, it was necessary for him to produce evidence tending to prove some of the alleged negligence. the plaintiff or know that he was there. [7] 3. There was a total failure to prove that the train that struck the defendant was running at a high or dangerous rate of speed. The undisputed evidence showed that the rate of speed did not exceed 20 miles an hour. The train had just passed through the town of Ridgefield, where the city ordinances prohibit a greater rate of speed than 15 miles an hour. The train had reduced its speed so as not to exceed the rate of 15 miles The defendant contends that the injury to an hour while going through that town. All the plaintiff was caused by his own neglithe evidence on that subject is to the effect gence. The evidence shows that he is an years, and that he had had experience as a track walker in Wisconsin and in the state of Washington. He had worked for the Northern Pacific Railway Company at Lind, Wash., as a track walker; but he had worked for the Northern Pacific at Ridgefield only two days prior to the day on which he was injured. He began his work on February 3d, about 6:15, at Ridgefield. He was struck about a mile south of Ridgefield by a freight train of 31 cars going south, as early as 7 o'clock a. m. When he left Ridgefield there was a freight train on the side track there; and the plaintiff expected to hear it whistle when it started out. At first the plaintiff walked on the left-hand track going south, but crossed over to the right-hand track and walked on the west ends of the ties. The plaintiff says that he could see a train approaching from the south about 300 feet, and that, from his position on the ends of the ties on the west side, he could see north about 450 feet, and he says that, if he had been on the other track, he could have seen north along the track a mile. He says there was an echo there that prevented his being able to determine from which direction a train was coming when he heard the noise. On cross-examination the plaintiff Asked what there was to hinder his getting off the tracks when he heard the train coming, he says, "I can't get off both tracks;" and as a reason for said statement he says: "No. The place where I got struck was a wide ditch, full of water, and muddy." Then he was asked, "You preferred to stay on the track, hearing the train coming, to getting in that water?" and he answered, "Yes, I walked on the other side, so if a train was coming both ways, to get away from the train-no other chance to get away." He was then asked, "You say there was a ditch where you fell with water in it that kept you from getting off the track?" He answered, "Yes, sir." He said that this ditch was five or six feet wide, and that he "was walking in this ditch the day before clearing it out. I took a shovel and would go right into the mud." He says that he heard the train coming, but did not know from which direction it came. He says that he had plenty of time to get off the track. "If there had been a chance to get away on the other track," and that it was the echo that fooled him. It appears from the plaintiff's own evidence that he heard the train before it struck him, and that he could have gotten out of its way by jumping into the ditch that contained water and mud, but that he was not willing to do that. "Ordinarily section men or track men assume the risk incident to the running of trains, whether extra trains or trains running on schedule time. Such employés are bound to know that regular trains may be delayed and pass at certain intervals, and that wild or extra trains may be sent over the road, and they assume the risk of danger therefrom, except in cases where, by some act or conduct of the employer, he has impliedly or expressly represented that no wild or extra trains shall imperil the safety of such employés.' 33 Cyc. p. 782, says: * "In the absence of statutory requirements or knowledge of a person's perilous position, a give warning by bell or whistle of the approach railroad company is ordinarily under no duty to or movement of its trains at places other than public crossings, depots, or in towns or cities. This rule, however, is subject to the circumstances increasing the risk of accident, qualification that where, together with other the railroad company has reason to anticipate that persons will be on its tracks at certain places, as in towns or cities, or at other places go upon the tracks for a long time within the where persons have been accustomed to cross or railroad company's knowledge, it is the duty to exercise care to give warning, by bell or * * * But whistle, of an approaching train. the omission to sound a bell or whistle, although required by statute, is not negligence as to one who sees or is aware of the approaching train, or as to one who could not have heard the warning, if given." In this case the plaintiff heard the train approaching, and the sound of a bell or a whistle would not have been of any assistance to him, for he knew without it that the train was approaching him, and he refused to jump out of the way, because he thought he would land in the ditch that contained water and mud, beside the track. 6. In Ginnochio v. Illinois C. R. Co., 155 Mo. App. 171, 134 S. W. 131, the Supreme Court of Missouri says: * "It seems that the more recent decisions of our Supreme Court adopt the view of the Supreme Court of the United States reflected in Aerkfetz v. Humphreys, 145 U. S. 418 [12 Sup. Ct. 835, 36 L. Ed. 758], and the Supreme Court of Massachusetts in Riccio v. N. Y., etc., R. Co., 189 Mass. 358 [75 N. E. 704], to the effect: First, that, because of the peculiar nature of the employment, the railthan to avert his injury after the engineer has road owes no duty to the section hand other actually seen his perilous situation; and, second, that, if a section man is run upon and injured while performing his task, he is to be regarded negligent in not looking out for the train. In other words, the doctrine is that, in so far as section men are concerned, the railroad is to be regarded under the law as entitled to a clear track, and such employés are to look out for their own safety, for there is a valid distinction in so far as the matter of duty pertains toward men engaged for the purpose of repairing the tracks and a stranger or other person who is not familiar with the operation of the road." In Riccio v. N. Y. R. R. Co., 189 Mass. 359, 75 N. E. 704, the court says: "We see no negligence on the part of the defendant. The plaintiff knew that he was at work in a railroad yard where trains and engines are frequently passing. There was no un dertaking upon the part of the defendant to give 5. 3 Elliott on Railroads (2d Ed.) § 1298,, him warning, but he was expected to look out says: for himself. If the engineer failed to sound In Degonia v. St. Louis, I. M. & S. Ry. Co., 224 Mo. 564, 123 S. W. 808, the syllabus in part is: the whistle or ring the bell, it was not negli- | is in the rural district and not near a public gence for which the defendant was responsible. crossing or a sharp curve, and there does not Both by the common law and by the law of the state of Connecticut, as we understand it to be appear to have been any law, rule, or custom under the decisions of that state which were requiring the defendant to ring a bell or sound put in evidence (the accident occurred in that a whistle at that point. The undisputed evistate), there is no evidence of negligence of the dence is that the trainmen did not see the defendant." plaintiff, and that they did not know of his presence on the track. There is no conflict in the evidence upon these points. Hence we hold that, under the facts shown by the evi"A section hand killed on a track by a fast dence, it was not the duty of the defendant passenger train approaching a station and crossing was not entitled to rely on the giving of sta- to give the plaintiff warning of the approach tion or crossing signals, under Rev. St. 1899, of the train by ringing the bell, sounding the requiring railroads to give certain signals at whistle, or otherwise. If the defendant had crossings, and making the railroad company lia-known or had had notice of the presence of ble for damages which any person might sustain 'at such crossing,' when the bell is not rung the plaintiff on the track, it would have been or the whistle sounded as required. * its bounden duty to ring the bell and sound the whistle and use all reasonable efforts to avoid injuring him. In Blankenships' Adm'r v. Norfolk & W. Ry. Co., 147 Ky. 263, 143 S. W. 997, the court says: "We have been referred to no case, or authority of any kind, which holds that it is the duty of the company to give a track walker notice of the approach of trains. Evidently, from the very nature of the case, it would be unreasonable and impracticable, as well as unnecessary, to undertake such a duty. His work as a track walker necessarily placed Blankenship upon the tracks of the road, and it goes without argument that the duty was imposed upon him to take such reasonable care of himself, in the performance of his duties, as would prevent him from being injured by a passing train. In failing to do so in this case, he was guilty of the grossest negligence, for which he can blame no one but himself." In Keefe v. C. & N. W. Ry. Co., 92 Iowa, 184, 60 N. W. 504, 54 Am. St. Rep. 542, the court says: "The presence of the tracks, and the cars thereon, and the movement of engines, were constant warnings to him (who worked about the depot and yard) of danger. It is the duty of persons employed in such places to be reasonably diligent in guarding against accidents, and especially to observe and keep out of the way of moving engines and cars. They have no right to rely wholly upon the persons in charge of them to prevent accidents, but must use due care to avoid danger." See, also, Aerkfetz v. Humphreys, 145 U. S. 418 [12 Sup. Ct. 835, 36 L. Ed. 758]; Cincinnati, Indianapolis, St. Louis & Chicago Railway Co. v. Long, 112 Ind. 166, 13 N. E. 659; Van Dyke v. Missouri Pac. Ry. Co., 230 Mo. 259, 130 S. W. 1. [9] The burden of proof was upon the plaintiff to make out a prima facie case of negligence upon the part of the defendant. The evidence for the plaintiff showed that the train that struck him was going at a rate of speed not greater than 20 miles per hour. There is no conflict in the evidence on this point, and hence it is clear that that was neither a high nor a dangerous rate of speed at that point. The rules of the company permitted a maximum rate of speed of 60 miles per hour. The rate of 20 miles per hour at that point was not negligence. It was only one-third of the maximum rate allowed by the defendant's rules. It was dark and foggy, and the plaintiff was on neither track nor on the space between the tracks. According to his own evidence, he was walking on the ends of the ties west of the right-hand track, and hence he was not in a position to be seen as readily as he would have been if he had been on the track. He admits that he heard the train that struck him and knew it was approaching but contends that he thought it was approaching from the south, instead of from the north. The fact that he heard the train and knew that it was approaching him shows that he was properly warned of the train's approach by the noise of the train. [10] Ringing the bell and blowing the whistle would have added nothing to this warning, because he admits hearing the noise of the train and knowing that it was approaching him. This afforded him notice of the the danger, and it then became his duty to get out of the way of the train. This he failed to do. It was his duty to be on the alert for his own protection. He had had experience as a track walker, and knew the dangers incident to that occupation. When he began work as a track walker, he knew the dangers ordinarily incident to that calling, and assumed the risks ordinarily incident thereto. The defendant did not know that the plaintiff was on or near the track, and hence it was not guilty of negligence in that it did not sound the whistle or ring the bell. Furthermore the plaintiff admits that he heard the train and knew that it was approaching him, and hence he had sufficient notice and warning that the train was approaching him, and he had an opportunity to escape injury by jumping into the mud and water, but he refused to do so, because he was not willing to get wet and muddy. This tends to prove negligence on his part, but we do not find it necessary to decide whether he was negligent or not. The court below set aside the verdict and granted a new trial for want of evidence to by the officer with whom the petition is filed, shall be filled as provided by law, and authorizand in case the officer resigns that the vacancy ing such additional legislation as may aid the operation of the section, including provision for payment by the public treasury of the reasonable special election campaign expenses of the officer, is self-operating, except as to the provision for legislation for the payment of the campaign expenses of the officer. disputed evidence shows that the defendant | tion is filed a special election shall be ordered was not guilty of the negligence charged, and that there was no evidence to support the verdict. The burden of proof was upon the plaintiff to show that the defendant was guilty of negligence that was the proximate cause of the injury. The evidence showed that the plaintiff was seriously injured; but that is not sufficient. Some default on the part of the defendant must be shown. Beach on Contributory Negligence (3d Ed.) 43, § says in part: "The defendant must not be 'a forgotten man.' There must be a default on his part, a want of ordinary care, or the plaintiff cannot recover." We approve the order of the court below granting a new trial, and said order is affirmed. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 58; Dec. Dig. § 31.*] 5. CONSTITUTIONAL LAW (§ 29*)-CONSTRUCTION OF CONSTITUTIONAL PROVISIONS "SELF-EXECUTING." Constitutional provisions are "self-executing" where it is the manifest intention that they should go into effect and no ancillary legislation is necessary to the enjoyment of a right given or the enforcement of a duty or liability imposed. [Ed. Note.-For other cases, see ConstitutionMCBRIDE, C. J., and BURNETT and al Law, Cent. Dig. § 32; Dec. Dig. § 29.* MOORE, JJ., concur SIONS. Const. art. 2, § 18, authorizes the recall of officers and provides that there may be required 25 per cent., but no more, of the number of electors who voted in the district at the preceding election for Justice of Supreme Court to file their petition demanding recall, and au thorizes the legislative assembly or the people to make laws to aid the operation thereof. Held, that the section requires 25 per cent. of the electors to sign any petition for recall until the legislative assembly or the people provide for a petition signed by a less number. For other definitions, see Words and Phrases, First and Second Series, Self-Executing.] 6. CONSTITUTIONAL LAW (§ 14*)-RULES OF CONSTRUCTION-INTENTION. Const. art. 2, § 18, authorizing the recall of officers, should be construed to give effect to the intention of its framers and electors who adopted it, and they should be taken to have intended what the language used means. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 11; Dec. Dig. § 14.*] 7. CONSTITUTIONAL LAW (§ 31*)-CONSTRUCTION OF CONSTITUTIONAL PROVISIONS-SELF: EXECUTING PROVISIONS. recall of public officers, the failure of the LegUnder Const. art. 2, § 18, authorizing the islature to provide for payment of campaign expenses of the officers subjected to the recall out of the public treasury as authorized by the section does not suspend the right of recall. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 58: Dec. Dig. § 31.*] In Banc. Original proceeding, on the relation of Andrew L. Clark, for quo warranto to W. A. Harris. Heard on demurrer to the petition or complaint. Demurrer overruled. C. E. S. Wood and G. F. Martin, both of 3. CONSTITUTIONAL LAW (§ 30*)-CONSTRUC- Portland, for plaintiff. M. L. Pipes and TION OF CONSTITUTIONAL PROVISIONS-SELF- Ansel R. Clark, both of Portland, for deEXECUTING PROVISIONS-"AID." In Const. art. 2, § 18, authorizing the recall of officers, the provision for such additional legislation as may aid the operation of the section does not hold the section in abeyance until such legislation is enacted, the word "aid" signifying to support, help, or assist. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 32; Dec. Dig. § 30.* For other definitions, see Words and Phrases, First and Second Series, Aid.] 4. CONSTITUTIONAL LAW (§ 31*)-CONSTRUCTION OF CONSTITUTIONAL PROVISIONS-SELFEXECUTING PROVISIONS. fendant. RAMSEY, J. This is an action in the nature of quo warranto brought in this court by the state of Oregon, on the relation of Andrew L. Clark, against the defendant, W. A. Harris, wherein it is contended that the defendant is guilty of usurping and unlawfully exercising the office of county judge of Columbia county. It is contended, also, that the relator, Andrew L. Clark, is the duly Const. art. 2, § 18, providing that every elected and qualified county judge of said public officer is subject to recall, and requiring county and entitled to said office, etc. The a petition for recall to be presented to and filed petition or complaint states the facts relied with the officer with whom the petition for nomination is required to be filed, providing that it upon by the plaintiff. The defendant filed shall not be necessary for petitions to be sign- a demurrer to the petition or complaint, aled by more than 25 per cent. of the legal voters, leging that said petition or complaint does requiring the reason for the recall to be stated in the petition, and that the officer be given five not state facts sufficient to constitute a cause days after its filing in which to resign, and that of action. This demurrer was argued in if he does not resign in five days after the peti- banc, some days ago by attorneys for the reFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes spective parties, and taken under advise-, enact a law providing the per cent. of the ment by the court. It is not necessary to state the facts in full, as the argument covered substantially but one question, to wit, whether section 18 of article 2 of the Constitution, relating to the recall of public officers, is self-executing. On and prior to September 22, 1914, the defendant was the duly elected, qualified, and acting county judge of Columbia county. On August 28, 1914, there was filed in the office of county clerk of Columbia county a petition in proper form for the recall of the defendant, in accordance with the terms of section 18 of article 2 of the Constitution. This petition contained all that said section 18 requires to be set forth in a petition for a recall. The defendant did not resign, and the county clerk duly ordered a special election to be held in said county on September 22, 1914, to determine whether the people of said county would recall the defendant as county judge of said county. Due notice of said election was given, and it was duly held. Andrew L. Clark, the relator, was nominated as a candidate for county judge, to be voted for at said election. At said recall election, he received, for the office of county judge, 1,484 votes, and the defendant received only 1,249 votes; the former having received a majority of 235 over the defendant, and no person except said relator and the defendant having received any votes at said election. The said vote was duly canvassed and said relator was duly declared to have been elected county judge of said county at said election. A certificate of election was issued to the relator, and he immediately qualified as county judge of said county by taking, subscribing, and filing his oath of office as required by law. The relator was and is a male citizen of the United States and of citizen of the United States and of the state of Oregon and of Columbia county, and duly qualified to be elected county judge of said county. After the relator had so qualified as county judge of said county, he duly demanded of the defendant the possession of the books, papers, and insignia of said office; but the defendant refused to accede to said demand and continues to hold said office, and excludes the relator therefrom, etc. [1] The demurrer admits the allegations of the petition or complaint that are properly pleaded to be true. The point contended for by the defendant upon the demurrer is that the recall of public officers provided for by section 18 of article 2 of the Constitution is not in force because said provision of the fundamental law is not self-executing, and no act of the legislative assembly or of the people has been passed to carry it into effect. If this contention is well founded, the recall election was unauthorized and consequently void. The counsel for the defendant contend that this section is in abeyance, and that it will continue to be in that state until legal voters that shall be necessary to sign petitions for a recall, and, also for the payment by the public treasury of the reasonable special election expenses of the officer whom the petitioners desire to have recalled. Said section 18 is as follows: "Every public officer in Oregon is subject, as herein provided, to recall by the legal voters of the state or of the electoral district from which he is elected. There may be required twentyfive per cent., but not more, of the number of electors who voted in his district at the preceding election for Justice of the Supreme Court to file their petition demanding his recall by the people. They shall set forth in said petition the reasons for said demand. If he shall offer his resignation, it shall be accepted and take effect on the day it is offered, and the vacancy shall be filled as may be provided by law. If he shall not resign within five days after the petition is filed, a special election shall be ordered to be held within twenty days in his said electoral district to determine whether the people will recall said officer. On the sample ballot at said election shall be printed in not more than two hundred words, the reasons for dein the recall petition, and in not more than two manding the recall of said officer as set forth hundred words, the officer's justification of his course in office. He shall continue to perform the duties of his office until the result of said special election shall be officially declared. Other candidates for the office may be nominated to be voted for at said special election. The candidate who shall receive the highest number of the term, whether it be the person against whom votes shall be deemed elected for the remainder of the recall petition was filed, or another. The recall petition shall be filed with the officer with whom a petition for nomination to such office should be filed, and the same officer shall order the special election when it is required. No such petition shall be circulated against any officer until he has actually held his office six against a senator or representative in the legmonths, save and except that it may be filed islative assembly at any time after five days from the beginning of the first session after his election. After one such petition and special against the same officer during the term for election, no further recall petition shall be filed which he was elected unless such further petitioners shall first pay into the public treasury which has paid such special election expenses. the whole amount of its expenses for the preceding special election. Such additional legislation as may aid the operation of this section shall be provided by the legislative assembly. treasury of the reasonable special election camincluding provision for payment by the public paign expenses of such officer. But the words. the legislative assembly shall provide,' or any similar or equivalent words in this Constitution or any amendment thereto, shall not be construed to grant to the legislative assembly any exclusive power of lawmaking nor in any way to limit the initiative and referendum powers reserved by the people." This section was adopted by a vote of the people on the first Monday in June, 1908. Three general sessions of the legislative assembly have passed since its adoption, but no act has been passed in relation before this court for the first time for conthereto. This section is new, and it is now before this court for the first time for con struction. The first sentence of said section of the Constitution is as follows: herein provided, to a recall by the legal voters "Every public officer in Oregon is subject, as of the state or of the electoral district from |