McDonald

This is an appeal by the defendant from the judgment and order refusing a new trial.

Practically the complaint and the amendments thereto contain four counts. The first charges that defendant is a corporation owning and operating a railroad in this state, and for the use of its railroad in December, 1889, erected a trestle bridge over Lytle creek in the county ef San Bernardino, and in constructing the same failed to use due and ordinary care in providing for the passage of water, debris, and flood-wood under the same in time of flood, that on the twenty-third day of December, 1889, during a heavy flood, owing to the said negligent construction of the bridge, debris, flood-wood, sand, and gravel accumulated under the bridge, choking up the channel, causing the water to overflow and damage plaintiff’s" land to his injury in the sum of four thousand dollars.

The second count contains the.same facts with the *209 addition that defendant did not use proper care and diligence in removing wood, debris, etc., from the bridge, but negligently permitted its accumulation, thereby causing the water to run against and wash away plaintiff's land to his damage, etc.

The third count charges…