Monical

(after stating the facts as above). Counsel for the plaintiff insists that the defendant waived any supposed error of the court in denying its motion for a nonsuit by proceeding to introduce testimony in its own behalf after the motion had been denied, and that the defendant is precluded from assigning that ruling as error. But inasmuch as the motion of the defendant for a directed verdict, which was also overruled, was based upon the identical grounds set forth in the motion for a nonsuit, we deem it unnecessary to consider this question.

[1] During the trial of this case, testimony was introduced by the plaintiff in support of the fact that the roadway in question, although built by private persons for private purposes, was, at the time of the accident and for several years immediately prior thereto, used by the public generally as a public highway. Joseph Supple, the owner of. the premises known as the “Supple Dock,” testified that in conjunction with the Willamette & Columbia River 'Bowing Company he had built the roadway in 1906 under a permit obtained from the city of Portland; that it was constructed for the use of the public and for their own use; that it had been used by…