have run off the track, or torn down the trestle. If this evidence be true, and there is nothing to contradict it, it was no defect about the stop-block that caused the trouble, but rather the weight of the engine and the resistless force with which it was thrown against it by the engineer. The causal connection between the block and the injury was lacking: Western Ry. Co. v. Mutch, 97 Ala. 194; 38 Am. St. Rep. 179.

378 5. And further, without stopping to review the evidence, of which there is much, it may be said it shows without conflict that the conduct of the engineer in controlling his engine on the occasion of the accident contributed proximately to his death. All agree that the switch was what is known and called a "close place," which requires the close attention and caution of an engineer; and yet we see nothing to warrant the belief that the trestle, in the good condition it was shown to have been, and with such an engine as the engineer was handling, might not, in the exercise of prudence on the part of the engineer, have been used for an indefinite time, without liability to accident, from any known or apparent danger. It was shown that the engineer ran upon the trestle with too great speed to comport with safety. It appears that his course in this regard had been observed, and Hatheway, the engine hostler of defendant's yard at the time, assumed, as he expressed it, "to get after Lloyd about going on the switch so fast," when he replied: "You see that hickory limb at the end of the trestle? If she goes over, I will catch on that"; and the witness added: "He went on the switch and on the trestle faster than I liked. I would often get off. I told him I was afraid of him." He sat on his seat also, with his left foot under him and his right extended over his box. All the witnesses, who were competent and who testified on the subject, say he ought, in the exercise of prudence, and in order to have his engine under control, to have stood up, and used both hands, one on the reverse, and the other on the throttle lever. It was shown the book of rules of the company required the engineer in close places to stand, in order to handle his engine the better, and this he should not have neglected: Warden v. Louisville etc. R. R. Co., 94 Ala. 279. He had both hands on the throttle lever. The cylinder cocks were closed, as the proof tends to show, and they should have been open. The experts say again, that going at a slow rate of speed, and observing the foregoing precautions, he might have stopped the engine within a very short distance, and some of them say, within a foot or two, and reversed and returned without risk of peril. But failing in these precautions, so import

ant to be exercised at such a time and place, he lost control of his engine, probably because confused, and 379 went forward with great and ruinous force against the stop and over the precipice. Our conclusion is, after a careful review of the evidence, that it shows, without any conflict, that deceased was careless, almost to recklessness, and thereby brought the disaster on himself, in which he lost his life.

8. There is no proof to show any willful, wanton, and intentional negligence on the part of defendant, as averred in the complaint.

Whether considered as a common-law action, or one under the employés act, the plaintiff has failed to make out a case. The proofs justified the general charge for the defendant, and it should have been given. The judgment below will be reversed and the cause remanded.

MASTER AND SERVANT.-THE DUTY OF A MASTER TO HIS SERVANT requires the exercise of reasonable care in furnishing suitable machinery and appliances for carrying on the business in which such servant is employed and keeping such appliances in repair, including the duty of making inspection and test at proper interval: Nord Deutscher etc. S. S. Co. v. Ingebregsten, 57 N. J. L. 400; 51 Am. St. Rep. 604, and note.

MASTER AND SERVANT-ASSUMPTION OF RISK GENERALLY.-A person, when he enters the service of another, assumes only such risks as are usually incident thereto: Settle v. St. Louis etc. R. R. Co., 127 Mo. 336; 48 Am. St. Rep. 633, and note.

MASTER AND SERVANT-ASSUMPTION OF RISKS-PATENT DEFECTS.-A servant is bound to know, and assumes the risk of, all defects in appliances about which he is employed that are open to observation or can be ascertained by the ordinary exercise of the senses: Taylor v. Wootan, 1 Ind. App. 188; 50 Am. St. Rep. 200, and note.

MASTER AND SERVANT-NOTICE OF DEFECTS-CONTINUING IN SERVICE.-If a servant, knowing of a defect in machinery, materials, or premises furnished for his use, without complaint or promise from the master or superior servant to repair, continues to use them, he assumes the risk and waives all claim against the master for injury therefrom: Breckenridge Co. v. Hicks, 94 Ky. 362; 42 Am. St. Rep. 361, and note; but see Meador v. Lake Shore etc. Ry. Co., 138 Ind. 290; 46 Am. St. Rep. 384, and note.

Bayzer v. MCMILLAN MILL COMPANY.

[105 ALABAMA, 395.]

WATERS AND WATERCOURSES-NAVIGABLE STREAMS, A fresh water stream above tide water is navigable and a public highway only when it is susceptible of being used in ordinary condition, for a highway of commerce, over which there may be trade, travel, transportation, or valuable floatage for a season or considerable portion of the year. All fresh water streams which have the requisite volume of water only occasionally and for brief periods, as the result of freshets, are unnavigable and private property.

WATERS AND WATERCOURSES-NAVIGABLE STREAMS. A fresh water creek above tide water not declared public by law, not navigated by boats, keels, or lighters of any kind, and not utilized for any kind of transportation of commodities, except sawlogs and lumber, and for this only at spasmodic and occasional periods in the winter or spring as the result of freshets, is not a navigable stream, but is private property, which may be obstructed without liability for damages.

Action to recover damages for the obstruction of an alleged navigable stream, known as "Pigeon Creek." Judgment for defendants, and plaintiffs appealed.

Farnham & Crum and Gamble & Powell, for the appellants. Stallworth & Barnett and J. M. Davidson, for the appellees. 397 HARALSON, J. The question as to what constitutes a navigable stream, as contradistinguished from a private one, has from an early day been the subject of many decisions of this court. This stream is above tide water. In determining the navigability of such streams, the test is to be found in their navigable capacity. As was said in The Daniel Ball, 10 Wall. 557: "Those rivers must be regarded as public, navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water."

In Morrison v. Coleman, 87 Ala. 657, which is one of our latest adjudications on the subject, this court, after a review of the authorities, announced its conclusion as follows: "We declare, as the result of our own rulings and of the weight of authority, that a fresh water stream above tide water is navigable and a public highway when, and only when, it is susceptible of being used, in ordinary condition, for a highway of commerce, over which there may be trade, travel, transportation, or valuable floatage. We are not to be understood as affirming that, to be a navigable stream or public highway, it must be susceptible of

the enumerated uses for the entire year. Most inland streams contain a greater volume of water in winter than in summer. Our precise meaning is, that for a season or considerable part of the year, it 308 must contain that depth of water which fits it for such transportation. It excludes all those streams which have the requisite volume of water only occasionally, as the results of freshets, and for brief periods, as unnavigable, and private property." Again, it was said in Rhodes v. Otis, 33 Ala. 578, 73 Am. Dec. 439: "In determining the character of a stream, inquiry should be made as to the following points: whether it is fitted for valuable floatage; whether the public or only a few individuals are interested in transportation; whether any great public interests are involved in the use of it for transportation; whether the periods of its capacity are sufficiently long to make it susceptible of use beneficially to the public; whether it has been previously used by the people generally, and how long it has been so used; whether it was meandered by the government surveyors or included in the surveys; whether, if declared public, it will probably in future be of public use for carriage. And in the application of these inquiries to the facts of the case, it is to be remembered that the onus probandi is upon the party claiming that the stream above tide water is public." In the case last cited, many reasons are stated, in the interest of the public why such streams should not be held to be public: "Every milldam on any of those creeks, every bridge over them, every water gap, and every footlog, could be treated as a nuisance, at the option of any individual who might think proper to go upon the stream and prepare a raft of timber to await a rise from a freshet to float his raft down; and he might sue the owners of mills for all damage sustained in consequence of the interference of the same."

Again, it has been held that a creek, not affected by the ebb and flow of the tide, which had never been declared a public highway by legislative authority, and was not treated as a navigable stream by the United States surveyors, is not navigable or public, though during twenty years keel-boats, loaded with cotton, had been several times floated, and timber and lumber rafted down it during the winter season, but during the summer, there was not sufficient water for these purposes: Ellis v. Carey, 30 Ala. 725; Lewis v. Coffee County, 77 Ala. 192; 54 Am. Rep. 55.

When the facts are ascertained, whether a stream is navigable or public is a question of law. In this case, 399 the facts bearing on this inquiry are not in conflict. It does not appear that Pigeon Creek has ever been utilized for any other kind of transporta

tion of commodities for market, other than sawlogs and lumber, and this at spasmodic and occasional periods in the winter or spring as the result of freshets; or that for any considerable part of the year did the depth of its water fit it for such transportation; or that any boats, keels, or lighters, propelled by steam, sail, pole, or oar had ever navigated its waters; or that it was exempt from the public surveys of the government, as a public stream, or declared to be such by the legislature of the state. Nor was there any evidence of the character and extent of the forests in the country through which it ran, and the number of people engaged in the mill or rafting business, so that it might be seen to what extent it had been or might be utilized in the future for purposes specified in the complaint. There does not appear that there was ever, at any time, such a state of facts as, under the foregoing and our other adjudications, would authorize us to declare this to be a public or navigable stream: Bullock v. Wilson, 2 Port. 436; Peters v. New Orleans etc. R. R. Co., 56 Ala. 528; Walker v. Allen, 72 Ala. 457; Sullivan v. Spotswood, 82 Ala. 163; Harold v. Jones, 86 Ala. 274.

The plaintiffs based their recovery on the allegation that this creek was, at the time of the damage complained of, a common and public highway for the purposes specified. Their right of recovery, in any event, is rested on their making good this averment, which they have failed to do. The general charge for defendant, if requested, might have been well given; and since plaintiffs, in no event, could recover, it is unnecessary to consider the errors assigned. If any existed, they were harmless. Affirmed.

WATERS-NAVIGABLE STREAMS.-The navigability of fresh water nontidal streams is a question of fact, and the burden of proof must be assumed by him who claims them to be navigable, and he must show that they are, in fact, navigable for boats or lighters and susceptible of valuable use for commercial purposes in a natural state for such length of time during the year as will make them valuable as public highways: Gaston v. Mace, 33 W. Va. 14; 25 Am. St. Rep. 848. and note. Navigable waters include not only those in which the tide ebbs and flows, but those which are naviga ble in fact and afford a channel for commerce, or subserve some other useful beneficial purpose: Lamprey v. State, 52 Minn. 181; 38 Am. St. Rep. 541. In all of the original thirteen states, except North Carolina, Pennsylvania, and Virginia, it is held that rivers above the ebb and flow of the tide, and rivers in which there is no tide, are non-navigable: Extended note to Miller v. Mendenhall, 19 Am. St. Rep. 228. See, also, the note to St. Louis etc. Ry. Co. v. Ramsey, 22 Am. St. Rep. 201.