testimony of a brakeman whose hand was crushed while he was coupling cars, that the engineer backed the tender against the car with more than necessary force, was held not incompetent on the ground that it was not a statement of fact, but a mere inference.1 118 The expression that the deceased was riding "as a passenger" on a train, used by witnesses in its ordinary, and not its legal sense, for want of a better word to distinguish between the train crew and others being transported thereon, has been held not open to the objection that it stated a conclusion.119 118 Louisville &c. R. Co. v. Watson, 90 Ala. 68; s. c. 8 South. Rep. 249. 119 San § 7767. Existence of the Relation.-The defendant may show that he had employed neither the injured person nor a third person, whose negligent act causd the injury, and that both were really in the service of an altogether different employer, though operating under a similar name.1 Where the defendant claimed that it operated a railroad under a lease which had expired before the occurrence of the accident, the plaintiff was allowed to introduce railroad tickets and lists of officers, agencies, and stations issued by the defendant and the words, marks, and signs on its bulletin board to show that the 1Georgia R. &c. Co. v. Strauss, 110 Ga. 189; s. c. 35 S. E. Rep. 332. See also, Connor v. Koch, 63 App. Div. (N. Y.) 257; s. c. 71 N. Y. Supp. 836. defendant was his employer at the time of the injury. So, in a joint action against the owner of a building, the contractor and the subcontractor for an injury to an employé of the latter, the contracts and specifications between the owner and contractor were held properly admitted to show the relation of the defendants to one another. 3 § 7768. Whether Employé Injured in Line of Duty.—On the question whether the injuries were received while the servant was engaged in the line of his duty, the plaintiff may show that no particular employé was charged with the duty in the performance of which the injuries were received, and that his act was essential to the due performance of the work he had in hand.* §7769. Assumption of Risk.-Under the doctrine which holds the employé to have assumed the risk where he is injured by defective appliances of which he had previous knowledge, or had equal opportunities with the employer to know of such defects, evidence is admissible which tends to show this knowledge on the part of the injured employé. Thus, for example, in an action for injuries to a gravel train employé in running the train at an unusual and dangerous rate of speed and stopping it suddenly without warning, evidence that the train had been operated on other days while the plaintiff was employed thereon in the same manner as at the time of the accident, was admissible as tending to show that he had assumed the risk incident to such mode of operation. But evidence that a shed had been erected to protect an employé from material falling from the walls of a building in course of construction, and that material had previously fallen, is only admissible to show an assumption of risk where it is shown that the employé knew that the material had previously fallen from the roof and that he could perform his duties with safety under the protection of the shed." 2 Southern Pac. Co. v. Wellington (Tex. Civ. App.), 36 S. W. Rep. 1114 (no off. rep.). 3 Pioneer Fireproof Const. Co. v. Howell, 189 Ill. 123; s. c. 59 N. E. Rep. 535. Daley v. American Printing Co., 150 Mass. 77; s. c. 22 N. E. Rep. 439 (putting belt on pulley). 5 See Vol. IV, § 4608, et seq. Evidence that plaintiff in an action for personal injuries caused by the breaking of a shank, by means of which an iron ladle containing molten iron was carried between two persons, had run with such la 8 $7770. Knowledge of the Existence of Defects.-On the question. of knowledge of the existence of defects in appliances or machinery rendering employment therewith unsafe, evidence of declarations, conversations, or conduct showing that defendant possessed such knowledge is generally admissible. Constructive knowledge of the defect on the part of the master may be shown by evidence of the condition of the appliance previously to10 and at the time of the accident causing the injury," or immediately thereafter, where there have been no alterations meanwhile, 12 or by proof of complaints to him by operatives, 13 or by the fact that an inspection made before the occurrence of the accident would have disclosed the defect if it had been carefully conducted. But the fact that an appliance broke a day or two before the happening of the accident has been held not to charge. the master with knowledge of its defective condition, where the appliance was not constructed by the master but had been purchased from a responsible concern.15 The employé on his part is charged with ordinary care in the matter of acquainting himself with the condition of appliances used in his work, and here the rule is that the means of 14 $ See Vol. IV, § 3782. 'New York Electric Equipment Co. v. Blair, 79 Fed. Rep. 896; s. c. 51 U. S. App. 81; 25 C. C. A. 216; Brady v. Norcross, 174 Mass. 442; s. c. 54 N. E. Rep. 874 (a previous conversation between two foremen as to the condition of a scaffold); Ballard v. Hitchcock Man. Co., 71 Hun (N. Y.) 582; s. c. 55 N. Y. St. Rep. 110; 24 N. Y. Supp. 1101 (statement of secretary of manufacturing company as to condition of boiler); Texas &c. R. Co. v. Barron, 4 Tex. Civ. App. 546; s. c. 23 S. W. Rep. 537 (superintendent's reprimand of section foreman for not inspecting track on morning of accident). 10 Baxter v. Chicago &c. R. Co., 104 Wis. 307; s. c. 80 N. W. Rep. 644. "Pioneer Cooperage Co. v. Romanowicz, 186 Ill. 9; s. c. 57 N. E. Rep. 864; aff'g s. c. 85 Ill. App. 407. 12 Woods v. Long Island R. Co., 159 N. Y. 546; s. c. 54 N. E. Rep. 1095; aff'g s. c. 11 App. Div. (N. Y.) 16; 42 N Y. Supp. 140; Creamery Package Man. Co. v. Hotsenpiller, 159 Ind. 99; s. c. 64 N. E. Rep. 600. 13 Huber V. Jackson, 1 Marv. (Del.) 374; s. c. 41 Atl. Rep. 92. Evidence that a workman objected to working under a crane because he was afraid of it, in connection with other parts of a conversation with the superintendent of a factory, which, under the circumstances, tended to show that the attention of the company was called to the fact that the crane was unsafe, is admissible in an action by an employé for injuries from the fall of such crane: Ashley Wire Co. v. Mercier, 163 Ill. 486; s. c. 45 N. E. Rep. 222. In an action for personal injuries to one acting as engineer by the blowing out of the cylinder head of the engine, testimony of a witness that he did not know anything about the piston being cracked, but that he had called the chief engineer's attention to the click of it several times, and told him that there was something wrong in the cylinder, is admissible and relevant: Howard Oil Co. v. Davis, 76 Tex. 630; s. c. 13 S. W. Rep. 665. 14 St. Louis &c. R. Co. v. Dorsey, 189 Ill. 251; s. c. 59 N. E. Rep. 593; aff'g s. c. 89 Ill. App. 555; Pauck v. St. Louis Dressed Beef &c. Co., 166 Mo. 639; s. c. 66 S. W. Rep. 1070; Toledo Consol. St. R. Co. v. Mammet, 2 Ohio Dec. 532. 15 Doyle v. White, 9 App. Div. (N. Y.) 521; s. c. 41 N. Y. Supp. 628; s. c. aff'd, 159 N. Y. 548; 54 N. E. Rep. 1090. defendant was his employer at the time of the injury.2 So, in a joint action against the owner of a building, the contractor and the subcontractor for an injury to an employé of the latter, the contracts and specifications between the owner and contractor were held properly admitted to show the relation of the defendants to one another.3 § 7768. Whether Employé Injured in Line of Duty.—On the question whether the injuries were received while the servant was engaged in the line of his duty, the plaintiff may show that no particular employé was charged with the duty in the performance of which the injuries were received, and that his act was essential to the due performance of the work he had in hand.* S7769. Assumption of Risk.-Under the doctrine which holds the employé to have assumed the risk where he is injured by defective appliances of which he had previous knowledge, or had equal opportunities with the employer to know of such defects, evidence is admissible which tends to show this knowledge on the part of the injured employé. Thus, for example, in an action for injuries to a gravel train employé in running the train at an unusual and dangerous rate of speed and stopping it suddenly without warning, evidence that the train had been operated on other days while the plaintiff was employed thereon in the same manner as at the time of the accident, was admissible as tending to show that he had assumed the risk incident to such mode of operation. But evidence that a shed had been erected to protect an employé from material falling from the walls of a building in course of construction, and that material had previously fallen, is only admissible to show an assumption of risk where it is shown that the employé knew that the material had previously fallen from the roof and that he could perform his duties with safety under the protection of the shed." 2 Southern Pac. Co. v. Wellington (Tex. Civ. App.), 36 S. W. Rep. 1114 (no off. rep.). 3 Pioneer Fireproof Const. Co. v. Howell, 189 Ill. 123; s. c. 59 N. E. Rep. 535. 4 Daley v. American Printing Co., 150 Mass. 77; s. c. 22 N. E. Rep. 439 (putting belt on pulley). 5 See Vol. IV, § 4608, et seq. Evidence that plaintiff in an action for personal injuries caused by the breaking of a shank, by means of which an iron ladle containing molten iron was carried between two persons, had run with such la dle on the trips immediately before the accident, in disobedience of orders, is admissible in connection. with other testimony that the break was a fresh one, and that the shank was in perfect condition at the commencement of the day's work: Coleman v. Mechanics' Iron Foundry Co., 168 Mass. 254; s. c. 46 N. E. Rep. 1065. Lake Shore &c. R. Co. v. Malcom, 12 Ind. App. 612; s. c. 40 N. E. Rep. 822. Pioneer Fireproof Constr. Co. v. Hansen, 176 Ill. 100; s. c. 52 N. E. Rep. 17; aff'g s. c. 69 Ill. App. 659. |