without being warned of the dangers incident to the new employment.51

§ 7775. Inability to Designate with Certainty the Defect Causing Injury. The mere fact that no witness, in an action for personal injuries to an employé by the use of alleged defective machinery, is able to name with absolute certainty the exact mechanical defects which caused the occurrence, will not bar a recovery where the immediate cause of the injury is clearly shown, and it appears that the employer's negligence caused the injury.52

§ 7776. Comparison with Methods and Conditions of Employment Elsewhere. On the question whether the employer has exercised reasonable and ordinary care in providing and maintaining safe appliances and places for work, the plaintiff may show the general practice of other employers in similar lines of employment in these respects.53 Thus, in an action for the death of an employé by the fall of an elevator in the defendant's shop, evidence was properly admitted to show that it was customary among builders and operators of elevators to equip them with a safety device to prevent falls, and that the defendant's elevator had no such device. So, evidence of the practice of subjecting boilers to a hydrostatic test in a certain city. has been held admissible upon a question of the necessity of making such a test.55 On the question whether the servant has used ordinary care for his own safety, he may show a general custom among employés

51 Hildenbrand v. Marshall, 30 Tex. Civ. App. 135; s. c. 69 S. W. Rep. 492.

52 Atchison &c. R. Co. v. Lannigan, 56 Kan. 109; s. c. 42 Pac. Rep. 343; Nelson v. St. Paul Plow Works, 57 Minn. 43; s. c. 58 N. W. Rep. 868; Mangum v. Bullion Beck &c. Min. Co., 15 Utah 534; s. c. 50 Pac. Rep. 834.

53 Hennesy v. Bingham, 125 Cal. 627; Olsen v. Northern Pac. Lumber Co., 119 Fed. Rep. 77; Spiro v. Felton, 73 Fed. Rep. 91; Chicago &c. R. Co. v. Harrington, 192 Ill. 9; McCormick &c. Machine Co. V. Burandt, 136 Ill. 170; s. c. 26 N. E. Rep. 588; aff'g s. c. 37 Ill. App. 165; Anderson v. Illinois &c. R. Co., 109 Iowa 524; s. c. 80 N. W. Rep. 561; Mentzer v. Davis, 109 Iowa 528; Thayer v. Smoky Hollow Coal Co., 121 Iowa 121; s. c. 96 N. W. Rep. 718; Cass v. Boston &c. R. Co., 14 Allen (Mass.) 448; McMahon V.

54

McHale, 174 Mass. 320; s. c. 54 N. E. Rep. 854; Fogus v. Chicago &c. R. Co., 50 Mo. App. 250; Belleville Stone Co. v. Comben, 62 N. J. L. 449; s. c. 45 Atl. Rep. 1090; aff'g s. c. 61 N. J. L. 353; 39 Atl. Rep. 641; Fiore v. Ladd, 22 Or. 202; s. C. 29 Pac. Rep 435; Kehler V. Schwenk, 151 Pa. St. 505; S. C. 25 Atl. Rep. 130; 31 Am. St. Rep. 777; Jochem v. Robinson, 72 Wis. 199; s. c. 39 N. W. Rep. 383; Nadau v. White River Lumber Co., 76 Wis. 120; s. c. 43 N. W. Rep. 1135. It is essential that the conditions should be similar: Congdon v. Howe Scale Co., 66 Vt. 255; s. c. 29 Atl. Rep. 253; Craven v. Mayers, 165 Mass. 271; s. c. 42 N. E. Rep. 113.

54 Stover Man. Co. v. Millane, 89 Ill. App. 532.

55 Bell v. Consolidated Gas &c. Co., 36 App. Div. (N. Y.) 242; s. c. 56 N. Y. Supp. 780.

,

having experience in the same line of work to perform the act as he did:56 but this fact, if shown, will not render the master liable where the act itself was negligent, no matter how frequently similar acts may have been performed by others similarly employed.57 The plaintiff cannot, however, show that the methods of a particular employer are safer than those of the defendant; the inquiry is whether the particular method or place of work was unsafe, and it is to be supposed that in such matters even the skillful and experienced will frequently differ in their choice of instrumentalities, and an employer should not be adjudged negligent for not conforming to some other method believed by some to be less perilous.58 On the other hand, the fact that an employer adopts the customs and methods of other employers engaged in like lines of work may be shown on the question whether he exercised reasonable care in the premises.59 But the fact

56 Chicago &c. R. Co. v. Kane, 70 Ill. App. 676; s. c. 2 Chic. L. J. Wkly. 489; Miller v. Illinois &c. R. Co., 89 Iowa 567; s. c. 57 N. W. Rep. 418; Coates v. Boston &c. R. Co., 153 Mass. 297; s. c. 26 N. E. Rep. 864; 10 L. R. A. 769; Bengston v. Chicago &c. R. Co., 47 Minn. 486; International &c. R. Co. v. Eason (Tex. Civ. App.), 35 S. W. Rep. 208 (no off. rep.); Abbott v. McCadden, 81 Wis. 563. Where a conductor of a freight train was injured while pouring water into a hot box, he having descended a ladder on the side of a moving freight car for that purpose, and being injured by the breaking of the hand hold, or by being struck by a cattle guard too near the track, evidence was admissible to show that in like circumstances conductors frequently went down ladders of cars to look after the running apparatus: Antonio &c. R. Co. v. Engelhorn, 24 Tex. Civ. App. 324; s. c. 62 S. W. Rep. 561. Evidence of a general custom of brakemen to pass up and down the sides of moving cars, and to jump off to open and close switches, is admissible on the questions whether a railway company was negligent in building a structure so near the track that a brakeman was struck by it while descending a ladder on the side of a moving car, and whether he was guilty of contributory negligence in attempting to descend at an improper place: Flanders v. Chicago &c. R. Co., 51 Minn. 193; s. c. 53 N. E. Rep. 544.

San

57 Mayfield v. Savannah &c. R. Co., 87 Ga. 374; s. c. 13 S. E. Rep. 459; Carrier v. Union Pac. R. Co., 61 Kan. 447; s. c. 59 Pac. Rep. 1075; Loranger v. Lake Shore &c. R. Co., 104 Mich. 80; s. c. 62 N. W. Rep. 137. Evidence that other employés habitually jumped from moving trains without looking or being able to look where they would alight, or knowing what obstructions they would meet, is inadmissible in an action for damages for personal injuries to an employé injured in so jumping: Thompson v. Boston &c. R. Co., 153 Mass. 391; s. c. 26 N. E. Rep. 1070.

Locomotive

&c.

58 Richmond Works v. Ford, 94 Va. 627; s. c. 27 S. E. Rep. 509; Southern R. Co. v. Mauzy, 98 Va. 692; s. c. 2 Va. Sup. Ct. Rep. 575; 37 S. E. Rep. 285. See also, Chicago &c. R. Co. v. Driscoll, 176 Ill. 330; s. c. 12 Am. & Eng. R. Cas. (N. S.) 644; 4 Chic. L. J. Wkly. 130; 52 N. E. Rep. 921: rev'g s. c. 70 III. App. 91; Cushman v. Cushman, 179 Mass. 601; s. c. 61 N. E. Rep. 262; French v. Columbia Spinning Co., 169 Mass. 531; s. c. 48 N. E. Rep. 269; Smith v. Beaudry, 175 Mass. 286; s. c. 56 N. E. Rep. 596; Tribette v. Illinois &c. R. Co., 71 Miss. 212; s. c. 13 South. Rep. 899; Propsom v. Leatham, 80 Wis. 608; s. c. 50 N. W. Rep. 586.

59 Taylor V. Star Coal Co., 110 Iowa 40; s. c. 81 N. W. Rep. 249: Myers V. Hudson Iron Co., 150 Mass. 125; s. c. 22 N. E. Rep. 631: Southern R. Co. v. McLellan, 80 Miss. 700; s. c. 32 South. Rep. 283.

of following the customary practice will not excuse the master if the custom is itself negligent and disregards the employé's safety." Where the injury was not caused by a defect in the construction of a machine, but was caused by its negligent use, defendant may not show that appliances similarly constructed were in use in other establishments. So, where an action for injuries to a minor by certain machinery was based, not upon its improper condition, but upon the failure to warn such employé of its dangerous character, evidence that such machines were generally used in a similar condition was held clearly irrelevant."2

$7777. Evidence to Show that Safer Methods could have been Adopted. Generally, mere evidence of the existence of safer appliances is not sufficient upon the question of the negligence of an employer in failing to adopt such devices, in the absence of evidence that such appliances are in common use; as the master is not required to furnish the best appliances, but performs his duty where he furnishes appliances reasonably safe for the purpose intended.63

§ 7778. Other Appliances Available to Employé. On the question whether the injured person exercised due care in the selection of tools for his work, the defendant may show that safer appliances were available and could have been used.64

distance from which a switch target could have been seen at a certain time, where he was acquainted with the condition of the atmosphere and light, the switch and track at the time, and was possessed of ordinary intelligence and eyesight.107 So, a witness who testifies that he heard no bell rung on a locomotive on approaching a crossing, may also testify as to the distance at which he could hear a bell if rung.108

§ 7759. Appearance or Health of Injured Person is a Question of Fact. A question as to the appearance or health of an injured person or the visible effects of his injuries is in reality a question as to the existence of a fact, and is not generally regarded as calling for the expression of an opinion by an expert witness;109 and such is the case with a description of one's own injuries.110 Thus, a witness, after stating facts within his knowledge, tending to show that the plaintiff in a suit for personal injuries was seriously disabled, may express his opinion that the plaintiff has been unable to perform any duties requiring the slightest physical exercise, and to do anything during his

severe attacks.111 But a question to a witness in an action for killing a deaf mute on a railroad track whether there was enough in the appearance of the deceased to indicate to the engineer that he was in possession of his faculties, has been held incompetent as calling for the opinion of the witness on a question which it was the province of the jury to determine from the facts in evidence.1

112

§ 7760. Opinion as to Legal Effect of Contract.-"Witnesses are not receivable to state their views on matters of legal or moral obligation."113 Thus, a question whether it is a part of the work of a lineman to make an investigation of a pole before going upon it has been held properly overruled as calling for an opinion as to the legal effect of a contract.114

§ 7761. Witness May Not State Opinion of Others.-A witness, in testifying as to a particular matter, should be confined to his individual knowledge and judgment, and should not be permitted to give the estimate or conclusion of another person, who also made an examination of the subject-matter of the action.115

$7762. Conclusions of Witnesses.-The distinction between opinions and conclusions is not substantial, and is difficult to draw by reason of the fact that courts use the terms interchangeably. The rule on the subject is, that where the testimony clearly states a conclusion, and not a fact, it should not be received. Thus, testimony whether a man of ordinary intelligence and with good sight and hearing could have stepped across a wooden chute lying on the floor of an express car without knowing it, is an example of evidence inadmissible as expressing the conclusion of the witness.116 But evidence that a passenger injured by a carrier's negligence, suffered much for several days after the hurt and had to be helped out of a buggy, has been held not objectionable as a conclusion of opinion.117 So,

111 Chattanooga &c. R. Co. v. Huggins, 89 Ga. 494; s. c. 52 Am. & Eng. R. Cas. 473; 15 S. E. Rep. 848.

112 Tyler v. Sites, 90 Va. 539; s. c. 19 S. E. Rep. 174.

113 Lord Denman in Campbell v. Richards, 5 Barn. & Ad. 846.

114 McIsaac v. Northampton Electric L. Co., 172 Mass. 89; s. c. 5 Am. Neg. Rep. 41; 51 N. E. Rep. 524.

113 Atchison &c. R. Co. v. Osborn, 58 Kan. 768; s. c. 51 Pac. Rep. 286; Lawrence v. Mycenian Marble Co., 1 Misc. (N. Y.) 105; s. c. 20 N. Y. Supp. 698; 48 N. Y. St. Rep. 719.

Thus the testimony of a physician as to his diagnosis of a case, based upon the opinion of another physician, should not be received where it appears that he never had a similar case: Fox v. Peninsular White Lead &c. Works, 92 Mich. 243; s. c. 52 N. W. Rep. 623.

118 American Exp. Co. v. Risley, 77 Ill. App. 476; s. c. aff'd, 179 Ill. 295; 53 N. E. Rep. 558; 6 Am. Neg. Rep. 40.

117 Gulf &c. R. Co. v. Reagan (Tex. Civ. App.), 34 S. W. Rep. 796 (no off. rep.).