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. 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. MeCadden, 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: San 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. 59 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 Ill. 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.61 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."4 64 But see Wright v. Boller, 42 Hun (N. Y.) 77; Jarvis v. Brooklyn Elev. R. Co., 40 N. Y. St. Rep. 825; s. c. 16 N. Y. Supp. 96; Barry v. Crimmins, 23 App. Div. (N. Y.) 272; s. c. 48 N. Y. Supp. 156; Resse v. Hershey, 163 Pa. St. 253; s. c. 29 Atl. Rep. 907; Benson v. New York &c. R. Co., 23 R. I. 147; s. c. 49 Atl. Rep. 689; Bering Man. Co. v. Peterson, 28 Tex. Civ. App. 194; s. c. 67 S. W. Rep. 133. In an action against stevedores by an employé for injuries sustained from the giving way of a strap sustaining hoisting apparatus, evidence that the strap was put up in the manner in which such straps are usually put up is admissible, since an employer can be held only to ordinary care: Burns v. Sennett, 99 Cal. 363; s. c. 33 Pac. Rep. 916. Kansas City &c. R. Co. v. Burton, 97 Ala. 240; s. c. 53 Am. & Eng. R. Cas. 115; 12 South. Rep. 88; Austin v. Chicago &c. R. Co., 93 Iowa 236; s. c. 61 N. W. Rep. 849; Gulf &c. R. Co. v. Hockaday, 14 Tex. Civ. App. 613; s. c. 37 S. W. Rep. 475. 61 Faerber v. T. B. Scott Lumber Co., 86 Wis. 226; s. c. 56 N. W. Rep. 745. See also, Bonner v. Hickey (Tex. Civ. App.), 23 S. W. Rep. 85 (no off. rep.). 62 Chopin v. Badger Paper Co., 83 Wis. 192; s. c. 53 N. W. Rep. 452. 63 Berning v. Medart, 56 Mo. App. 443. Cahow v. Chicago &c. R. Co., 113 Iowa 224; s. c. 84 N. W. Rep. 1056; Geloneck V. Dean Steam Pump Co., 165 Mass. 202; s. c. 43 N. E. Rep. 85; Graham v. Boston &c. R. Co., 156 Mass. 4; s. c. 30 N. E. Rep. 359. In an action against an employer for negligence in failing to repair a defect in a gang plank over which its servants carried freight from a pier to a vessel, defendant had a right to show that it kept an extra gang plank on the pier, which could have been substituted by plaintiff or his fellow servants for the one which became out of repair: O'Connor v. Pennsylvania R. Co., 48 App. Div. (N. Y.) 244; s. c. 62 N. Y. Supp. 723. § 7779. Evidence of Previous Accidents from Same Cause.-Evidence of similar accidents from the same cause, though of slight probative value, is sometimes admitted as tending to prove the dangerous character of the machine. The better rule allows such evidence on the question of the master's knowledge of the condition of an appliance, and for that purpose only.65 A like objection lies against the admission of evidence in the master's behalf to show that no previous accident had occurred; but such evidence is sometimes admitted on the question of the master's knowledge of the condition of a machine or other instrumentality, or, in behalf of the servant, to rebut a charge 67 Pacheco v. Judson Man. Co., 113 Cal. 541; s. c. 45 Pac. Rep. 833; Denver Tramway Co. V. Crumbaugh, 23 Colo. 363; s. c. 48 Pac. Rep. 503; Fraser v. Schroeder, 163 Ill. 459; s. c. 45 N. E. Rep. 288; Salem Stone &c. Co. v. Griffin, 139 Ind. 141; s. c. 38 N. E. Rep. 411; Morse v. Minneapolis &c. R. Co., 30 Minn. 465; Cavanagh v. O'Neill, 27 App. Div. (N. Y.) 48; s. c. 50 N. Y. Supp. 207; Wyman v. Orr, 47 App. Div. (N. Y.) 136; s. c. 62 N. Y. Supp. 195; Stock v. Le Boutillier, 18 Misc. (N. Y.) 349; s. c. 41 N. Y. Supp. 649; s. c. aff'd, 19 Misc. (N. Y.) 112; 43 N. Y. Supp. 248; Brewing Co. V. Bauer, 50 Ohio St. 560; s. c. 30 Ohio L. J. 298; 48 Alb. L. J. 477; 35 N. E. Rep. 55. With a description of the locality, the height of the bridge, and the statement that no danger signals were kept there, a witness may state that, prior to the accident in the case, three other parties were there injured in the same manner: Louisville &c. R. Co. v. Wright, 115 Ind. 378; s. c. 13 West. Rep. 798; 16 N. E. Rep. 145. Where an employé was injured by the falling of a bucket in which he was descending into a mine, because the apparatus for controlling the descent was insufficient, and a shoebrake was used ordinarily in lowering the bucket, and a clutch-gear in hoisting, while each device could be used to supplement the other, evidence of former slips while hoisting ores in the bucket is admissible: Myers v. Hudson Iron Co., 150 Mass. 125; s. c. 22 N. E. Rep. 631. Evidence as to previous accidents and the manner in which they occurred, directed solely to the character of a machine the defective condition of which is alleged to have caused the accident in question, is admissible although it may present the collateral question whether the occurrence testified to was properly attributable to the fault of the machine or of the witness: McCarragher v. Rogers, 120 N. Y. 526; s. c. 31 N. Y. St. Rep. 595; 24 N. E. Rep. 812. Evidence that plungers of a machine dropped while the boy who preceded plaintiff in operating it was there and while his foot was not upon the treadle is admissible in an action for injury to an employé from such plunger dropping upon his hand when his foot was not upon the treadle: Sopherstein v. Bertels, 178 Pa. St. 401; s. c. 35 Atl. Rep. 1000. 66 Burgess v. Davis Sulphur Ore Co., 165 Mass. 71; s. c. 42 N. E. Rep. 50; Harroun V. Brush Electric Light Co., 12 App. Div. (N. Y.) 126; s. c. 42 N. Y. Supp. 716; appeal dismissed, 152 N. Y. 212; 38 L. R. A. 615; 46 N. E. Rep. 291 (evidence not admissible unless it was shown that same condition had previously existed); Harmarberg v. St. Paul &c. Lumber Co., 19 Wash. 537; s. c. 53 Pac. Rep. 727. Evidence that no accident had occurred at a railroad bridge during the nine years of its existence is inadmissible to negative negligence on the part of the company in placing a truss of the bridge so close to the track as to permit a bolt projecting from its top to catch in the clothing of a brakeman standing on a box car: Bryce v. Chicago &c. R. Co., 103 Iowa 665; s. c. 9 Am. & Eng. R. Cas. (N. S.) 832; 72 N. W. Rep. 780. 67 Hoppe v. Parmalee, 65 Ohio St. 614; aff'g s. c. 20 Ohio C. C. 303; of contributory negligence, on the ground that a feeling of security was induced by the fact that previous accidents had not occurred.““ Proof of similar accidents is clearly inadmissible where an employer does not controvert the dangerous character of the appliance, but sets up as a sole defense that the employé assumed the risk by continuing in the employment with knowledge of the danger. Evidence that other like machines have acted similarly under the same circumstances may not be shown.70 § 7780. Insufficiency of Force.-As we have already seen, a master is responsible for a failure to employ a sufficient force of competent servants to perform the work safely with respect to fellow servants; and evidence of a deficiency in this respect is admissible where the fact of the insufficient force was a contributory cause of the injury complained of. On this question, evidence that a freight train did not have its full complement of trainmen at the time of the accident to the plaintiff while climbing on a car has been held admissible to show that the plaintiff was properly in the position on the train where he was at the time of the accident, and to rebut any inference of contributory negligence based on the theory that he was away from his post of duty at the time of receiving his injuries.73 Closely connected with the foregoing is the case of a force inefficient through overwork; and where an injury is traceable to the fact that the employé responsible 11 Ohio C. D. 24; Southern R. Co. v. McLellan, 80 Miss. 700; s. c. 32 South. Rep. 283. Louisville &c. R. Co. v. Hall, 87 Ala. 708; s. c. 6 South. Rep. 277; 4 L. R. A. 710. 69 Dye v. Delaware &c. R. Co., 130 N. Y. 671; s. c. 41 N. Y. St. Rep. 690; 29 N. E. Rep. 320. 70 Kolk v. Chicago Stamping Co., 33 Ill. App. 488. But see Turner v. Goldsboro Lumber Co., 119 N. C. 387; s. c. 26 S. E. Rep. 23; Hurd v. Union &c. R. Co., 8 Utah 241; s. c. 30 Pac. Rep. 982. "See Vol. IV, § 4865. Where an employé in rolling car wheels down an inclined track to a machine shop is injured by wheels from behind, in an action for such injury, evidence that the superintendent had been told, a short time before the injury, that he had better put a man there to check the wheels in order to prevent injuries of this kind, that he had put a man there, but had called him away before the accident, is admissible as tending to show negligence: Savannah &c. R. Co. v. Goss, 80 Ga. 524; s. c. 5 S. E. Rep. 727. 72 Colson v. Craver, 80 Ill. App. 99; Carrier v. Union Pac. R. Co., 58 Kan. 816; s. c. 50 Pac. Rep. 873; Southern R. Co. v. McLellan, 80 Miss. 700; s. c. 32 South. Rep. 283; Williams v. Delaware R. Co., 92 Hun (N. Y.) 219; s. c. 71 N. Y. St. Rep. 218; 36 N. Y. Supp. 274. In an action for the death of a boy killed by the falling on him of a box through the negligent handling thereof by defendant's servants, it was proper to admit evidence as to the handling of a similar box at another time; the object being to show that a sufficient number of servants were employed in handling the box which fell on deceased: Schnable V. Providence Public Market, 24 R. I. 477; s. c. 53 Atl. Rep. 634. 73 Jones v. New York &c. R. Co., 20 R. I. 210; s. c. 3 Am. Neg. Rep. 496; 11 Am. & Eng. R. Cas. (N. S.) 414; 37 Atl. Rep. 1033. for the accident was incapacitated by reason of overwork or loss of sleep, that fact may be shown.74 § 7781. Employment and Retention of Incompetent Fellow Servants. This phase of personal injury evidence has received such extended treatment in an earlier volume that but little more than an application of a few of the principles there stated is called for at this time. On the subject of the retention of an incompetent servant, the better rule requires that specific acts of incompetency should be first shown, and then that the master knew or ought to have known of such incompetency. The fact of knowledge of this incompetency of the negligent employé may be shown by evidence that such incompetency was generally known among his fellow workmen engaged in the same lines of employment." The reputation intended means a general 76 74 The testimony of a witness that he was present in the office of the train dispatcher, whose duty it was to send out crews, when the dispatcher was requested to allow a brakeman to lay off and rest, was admissible to show that defendant had notice of the brakeman's condition: St. Louis &c. R. Co. v. Kelton, 28 Tex. Civ. App. 137; s. c. 66 S. W. Rep. 887. See Vol. IV, § 4906, et seq. 76 Giordano v. Brandywine Granite Co., 3 Pen. (Del.) 423; s. c. 52 Atl. Rep. 332; Consolidated Coal Co. v. Seniger, 179 Ill. 370; s. c. 53 N. E. Rep. 733; aff'g s. c. 79 Ill. App. 456; Gilman v. Eastern R. Co., 13 Allen (Mass.) 433; s. c. 90 Am. Dec. 210; Olsen v. Andrews, 168 Mass. 261; s. c. 47 N. E. Rep. 90; Davis v. Detroit &c. R. Co., 20 Mich. 105; s. c. 4 Am. St. Rep. 364; Park v. New York &c. R. Co., 155 N. Y. 215; s. c. 49 N. E. Rep. 674; rev'g s. c. 85 Hun (N. Y.) 184; Coppins v. New York &c. R. Co., 122 N. Y. 557; s. c. 44 Am. & Eng. R. Cas. 618; 34 N. Y. St. Rep. 214; 19 Am. St. Rep. 523; 25 N. E. Rep. 915; aff'g s. c. 48 Hun (N. Y.) 292; 17 N. Y. St. Rep. 916; Baulec v. New York &c. R. Co., 59 N. Y. 356; Barkley v. New York &c. R. Co., 35 App. Div. (N. Y.) 228; s. c. 5 Am. Neg. Rep. 218; 54 N. Y. Supp. 766 (engineer had run over and killed six persons and was retained notwithstanding the facts were reported to his superiors); Marrinan v. New York &c. R. Co., 13 App. Div. (N. Y.) 439; McCarthy v. Ritch, 59 App. Div. (N. Y.) 145; s. c. 69 N. Y. St. Giordano v. Brandywine Gran- 90 Am. Dec. V. |