of the existence either of the writing or of the rule.30 Knowledge of the existence of a rule may be shown either before or after its admission in evidence.31 The failure of an employer to promulgate rules governing the conduct of employés in the situation where plaintiff was injured may be proved by the introduction of the rules of the company; and if any of them seem to apply, testimony is admissible to show that they do not apply or are inadequate for the purpose.32 The construction placed upon the rules by the employer may be shown by his acts and conduct with reference to the particular term or expression under consideration.33 Only the rule pertinent to the particular matter in issue need be introduced. Thus, it has been held that it was not error for the court to refuse to admit in evidence a rule of a railroad company forbidding brakemen to ride on the engine, where a rule forbidding them to leave their posts of duty or take any position on the train other than that assigned to them had already been admitted.34 On the question of the necessity for a particular rule, evidence is admissible that such a rule had previously existed and been abolished, as showing that the propriety of such a rule had been recognized and that the attention of the employer had been called to its necessity.35 §7773. Abrogation of Rules by Habitual Violation.-Evidence of the habitual violation of a rule with the knowledge of the employer is admissible to prove the abrogation of such rule.36 But evidence of a custom in violation of a rule will not be received,37 unless it is 30 Missouri &c. R. Co. v. Lamothe, 76 Tex. 219; s. c. 13 S. W. Rep. 194. 31 Binion v. Georgia &c. R. Co., 111 Ga. 878; s. c. 36 S. E. Rep. 938. 32 Texas &c. R. Co. v. Tatman, 10 Tex. Civ. App. 434; s. c. 31 S. W. Rep. 333. 33 Lake Shore &c. R. Co. v. Andrews, 14 Ohio C. C. 564. 34 Norfolk &c. R. Co. v. Marpole, 97 Va. 594; s. c. 34 S. E. Rep. 462. 35 Lake Shore &c. R. Co. v. Starkey, 18 Ohio C. C. 700; s. c. 6 Ohio C. D. 8. 36 See Vol. IV, § 4163; Hissong v. Richmond &c. R. Co., 91 Ala. 514; s. c. 8 South. Rep. 776; Louisville &c. R. Co. v. Richardson, 100 Ala. 232; s. c. 14 South. Rep. 209; Lake Erie &c. R. Co. v. Craig, 80 Fed. Rep. 488; s. c. 47 U. S. App. 647; 38 Ohio L. J. 122; 25 C. C. A. 585; Chicago &c. R. Co. v. Myers, 95 Ill. App. 578; Lowe v. Chicago &c. R. Co., 89 Iowa 420; s. c. 56 N. W. Rep. 519; Strong v. Iowa &c. R. Co., 94 Iowa 390; s. c. 62 N. W. Rep. 799; Spaulding v. Chicago &c. R. Co., 98 Iowa 205; s. c. 87 N. W. Rep. 227; Eastman v. Lake Shore &c. R. Co., 101 Mich. 597; Barry v. Hannibal &c. R. Co., 98 Mo. 62; Francis v. Kansas City &c. R. Co., 127 Mo. 658; s. c. 28 S. W. Rep. 842; 30 S. W. Rep. 129; Shaub v. Hannibal &c. R. Co., 106 Mo. 74; White v. Louisville &c. R. Co., 72 Miss. 13; Cameron v. New York &c. R. Co., 77 Hun (N. Y.) 519; s. c. 60 N. Y. St. Rep. 273; 28 N. Y. Supp. 898; Coppins v. New York &c. R. Co., 122 N. Y. 557; Nashville &c. R. Co. v. Reagan, 96 Tenn. 128; Galveston &c. R. Co. v. Garteiser. 9 Tex. Civ. App. 456; s. c. 29 S. W. Rep. 939; Wright v. Southern Pac. Co., 14 Utah 383; s. c. 5 Am. & Eng. R. Cas. (N. S.) 559; 46 Pac. Rep. 374. 37 Thus, evidence that it was customary for the rear brakeman to shown that the custom has existed for such a length of time as to create a presumption of acquiescence therein by the defendant and knowledge thereof by the plaintiff.38 On this question the testimony of the employer that he would discharge any employé who persistently violated a rule to his knowledge has been held not a statement of fact, and has been held incompetent to disprove a waiver of the rule by the employer.3 39 40 § 7774. Warning and Instructing Youthful and Inexperienced Employés. A firmly fixed principle of the law of master and servant imposes upon an employer the absolute duty of warning and instructing his employés concerning such dangers as may not be properly appreciated by them by reason of their lack of experience, their youth, or their general incompetency or ignorance. On this question, evidence is clearly admissible that shows knowledge by the master of defects in machinery of which he should warn inexperienced or youthful operatives. After a witness has testified that in his judgment the employment about a certain machine is quite dangerous, he will be allowed to state whether he considered it necessary to instruct a new man as to these dangers.42 On the issue of contributory negligence, the plaintiff in rebuttal may testify as to his own want of experience.*3 41 ride inside the car is inadmissible in an action for an injury to a rear brakeman on a freight train, sustained while he was climbing from the inside to the top of the rear car, where the company's rules furnished him provided that brakemen on freight trains must not leave their brakes while trains were in motion, and that the post of the rear brakeman was on the last car, which he must not leave except to protect the train: Gordy v. New York &c. R. Co., 75 Md. 297; s. c. 23 Atl. Rep. 607. 38 Richmond &c. R. Co. v. Hissong, 97 Ala. 187; s. c. 12 South. Rep. 393; 13 South. Rep. 209 (plaintiff employed one day not permitted to avail himself of rule); Western &c. R. Co. V. Moore, 94 Ga. 457; s. c. 20 S. E. Rep. 640. Evidence that it was the custom of a railroad company to jam cars back against a gravel bank is inadmissible to prove negligence on its part at the time of the death of an employé by being crushed between a car and the gravel bank; but such evidence in connection with evidence that deceased knew of such · custom is admissible to prove negli- 30 Tullis v. Lake Erie &c. R. Co., 40 See Vol. IV, § 4055. 41 Bennett v. Warren, 70 N. H. 564; s. c. 49 Atl. Rep. 105. Evidence that an employé deputed to instruct another employé in the work of feeding a cylinder knew that the seat on which the latter sat while performing his work had on other occasions tipped up is admissible in connection with evidence that the employé injured in feeding the cylinder was injured by the tipping of the seat, which was due to a change of position which he assumed in obedience to an order of the other employé: Spaulding v. Forbes Lithograph Man. Co., 171 Mass. 271; s. c. 50 N. E. Rep. 543. 42 12 James v. Rapides Lumber Co., 50 La. An. 717; s. c. 23 South. Rep. 469; 44 L. R. A. 33. 43 Neilson v. Nebo Brownstone Co., 25 Utah 37; s. c. 69 Pac. Rep. 289. of the existence either of the writing or of the rule.30 Knowl edge of the existence of a rule may be shown either before or after its admission in evidence.31 The failure of an employer to promulgate rules governing the conduct of employés in the situation where plaintiff was injured may be proved by the introduction of the rules of the company; and if any of them seem to apply, testimony is admissible to show that they do not apply or are inadequate for the purpose.32 The construction placed upon the rules by the employer may be shown by his acts and conduct with reference to the particular term or expression under consideration.33 Only the rule pertinent to the particular matter in issue need be introduced. Thus, it has been held that it was not error for the court to refuse to admit in evidence a rule of a railroad company forbidding brakemen to ride on the engine, where a rule forbidding them to leave their posts of duty or take any position on the train other than that assigned to them had already been admitted.34 On the question of the necessity for a particular rule, evidence is admissible that such a rule had previously existed and been abolished, as showing that the propriety of such a rule had been recognized and that the attention of the employer had been called to its necessity.3 35 § 7773. Abrogation of Rules by Habitual Violation.-Evidence of the habitual violation of a rule with the knowledge of the employer is admissible to prove the abrogation of such rule.36 But evidence of a custom in violation of a rule will not be received,37 unless it is 30 Missouri &c. R. Co. v. Lamothe, 76 Tex. 219; s. c. 13 S. W. Rep. 194. 31 Binion v. Georgia &c. R. Co., 111 Ga. 878; s. c. 36 S. E. Rep. 938. 32 Texas &c. R. Co. v. Tatman, 10 Tex. Civ. App. 434; s. c. 31 S. W. Rep. 333. 33 Lake Shore &c. R. Co. v. Andrews, 14 Ohio C. C. 564. 34 Norfolk &c. R. Co. v. Marpole, 97 Va. 594; s. c. 34 S. E. Rep. 462. 35 Lake Shore &c. R. Co. v. Starkey, 18 Ohio C. C. 700; s. c. 6 Ohio C. D. 8. 36 See Vol. IV, § 4163; Hissong v. Richmond &c. R. Co., 91 Ala. 514; s. c. 8 South. Rep. 776; Louisville &c. R. Co. v. Richardson, 100 Ala. 232; s. c. 14 South. Rep. 209; Lake Erie &c. R. Co. v. Craig, 80 Fed. Rep. 488; s. c. 47 U. S. App. 647; 38 Ohio L. J. 122; 25 C. C. A. 585; Chicago &c. R. Co. v. Myers, 95 Ill. App. 578; Lowe v. Chicago &c. R. Co., 89 Iowa 420; s. c. 56 N. W. Rep. 519; Strong v. Iowa &c. R. Co., 94 Iowa 390; s. c. 62 N. W. Rep. 799; Spaulding v. Chicago &c. R. Co., 98 Iowa 205; s. c. 87 N. W. Rep. 227; Eastman v. Lake Shore &c. R. Co., 101 Mich. 597; Barry v. Hannibal &c. R. Co., 98 Mo. 62; Francis v. Kansas City &c. R. Co., 127 Mo. 658; s. c. 28 S. W. Rep. 842; 30 S. W. Rep. 129; Shaub v. Hannibal &c. R. Co., 106 Mo. 74; White v. Louisville &c. R. Co., 72 Miss. 13; Cameron v. New York &c. R. Co., 77 Hun (N. Y.) 519; s. C. 60 N. Y. St. Rep. 273; 28 N. Y. Supp. 898; Coppins v. New York &c. R. Co., 122 N. Y. 557; Nashville &c. R. Co. v. Reagan, 96 Tenn. 128; Galveston &c. R. Co. v. Garteiser, 9 Tex. Civ. App. 456; s. c. 29 S. W. Rep. 939; Wright v. Southern Pac. Co., 14 Utah 383; s. c. 5 Am. & Eng. R. Cas. (N. S.) 559; 46 Pac. Rep. 374. 37 Thus, evidence that it was customary for the rear brakeman to shown that the custom has existed for such a length of time as to create a presumption of acquiescence therein by the defendant and knowledge thereof by the plaintiff.38 On this question the testimony of the employer that he would discharge any employé who persistently violated a rule to his knowledge has been held not a statement of fact, and has been held incompetent to disprove a waiver of the rule by the employer.3 39 § 7774. Warning and Instructing Youthful and Inexperienced Employés. A firmly fixed principle of the law of master and servant imposes upon an employer the absolute duty of warning and instructing his employés concerning such dangers as may not be properly appreciated by them by reason of their lack of experience, their youth, or their general incompetency or ignorance. On this question, evidence is clearly admissible that shows knowledge by the master of defects in machinery of which he should warn inexperienced or youthful operatives. After a witness has testified that in his judgment the employment about a certain machine is quite dangerous, he will be allowed to state whether he considered it necessary to instruct a new man as to these dangers.42 On the issue of contributory negligence, the plaintiff in rebuttal may testify as to his own want of experience. 43 41 ride inside the car is inadmissible in 3 Richmond &c. R. Co. v. Hissong, 97 Ala. 187; s. c. 12 South. Rep. 393; 13 South. Rep. 209 (plaintiff employed one day not permitted to avail himself of rule); Western &c. R. Co. V. Moore, 94 Ga. 457; s. c. 20 S. E. Rep. 640. Evidence that it was the custom of a railroad company to jam cars back against a gravel bank is inadmissible to prove negligence on its part at the time of the death of an employé by being crushed between a car and the gravel bank; but such evidence in connection with evidence that deceased knew of such · custom is admissible to prove negli- So Tullis v. Lake Erie &c. R. Co., 40 See Vol. IV, § 4055. 41 Bennett v. Warren, 70 N. H. 564; s. c. 49 Atl. Rep. 105. Evidence that an employé deputed to instruct another employé in the work of feeding a cylinder knew that the seat on which the latter sat while performing his work had on other occasions tipped up is admissible in connection with evidence that the employé injured in feeding the cylinder was injured by the tipping of the seat, which was due to a change of position which he assumed in obedience to an order of the other employé: Spaulding v. Forbes Lithograph Man. Co., 171 Mass. 271; s. c. 50 N. E. Rep. 543. 44 Where the youth of the injured employé is in question, testimony of witnesses in speaking of him as a boy, taken in connection with his physical appearance, has been held sufficient to show that the employer knew that he was a minor at the time he was employed, and that, hence, he was negligent in failing to instruct him of the dangers of the employment. As emphasizing this duty it has been held proper to show that a concededly youthful employé looked even younger than his years. Where the question involved is whether the instructions were actually given to the injured employé, testimony of other employés relative to what the employer told them as to the dangerous character of the work is not admissible, unless it is shown that these statements were made in the presence and hearing of the injured employé.16 For like reasons, the testimony of another employé that he was not informed of the dangers is not admissible to rebut the testimony of the defendant that the plaintiff was informed of the dangers of his employment." Where, however, the foreman, entrusted with the duty of instructing employés, has testified that he always gave new employés certain instructions, it may be shown in rebuttal that another employé engaged in the same work had not received the instructions. In determining whether an employé understood a warning of the dangerous character of machinery about which he was employed, his age, incompetency, experience, the nature of the service, the degree of his attention while at work, and the like, are proper matters for consideration." And where it is openly intimated that an injured female employé who had been given no instructions about the operation of a machine was feigning ignorance or dullness, the court may, in its discretion, admit evidence that the teachers of the girl had found her an unusually dull pupil.50 On the question of assumption of risk it has been held proper to show that the father of a youthful employé had contracted with the employer for his doing other and less dangerous work, and that he had been ordered into a dangerous place, where he received the injuries, * Texarkana &c. R. Co. v. Preach- that knowledge of such instructions er (Tex. Civ. App.), 59 S. W. Rep. 593 (no off. rep.). 45 Texas &c. R. Co. v. Brick, 83 Tex. 598; s. c. 20 S. W. Rep. 511. 46 Fox v. Peninsular White Lead &c. Works, 84 Mich. 676; s. c. 48 N. W. Rep. 203. Instructions given to individual workmen as to their protection while at work are not admissible in an action for the death of an employé through the employer's negligence, in the absence of any offer to show that general rules or instructions had been issued, or to individual employés had ever been brought home to the deceased: Grant v. Varney, 21 Colo. 329; s. c. 40 Pac. Rep. 771. 47 Fox v. Peninsular White Lead &c. Works, 92 Mich. 243; s. c. 52 N. W. Rep. 623. 48 Mahood v. Pleasant Valley Coal Co., 8 Utah 85; s. c. 30 Pac. Rep. 149. |