company, not only before, but after the accident. Evidence of a custom of conductors to allow shippers of live stock to ride in the car with them has been held admissible as tending to show the authority of the conductor to permit such transportation contrary to a condition in the contract of shipment. It may be shown in an action by a drover for injuries by being struck by an overhead bridge while on the top of a freight train, that railroad companies generally permit stockmen to pass over moving freight trains on the running board provided for that purpose when necessary to attend to their stock." 6 § 7828. Injuries Received in Boarding or Alighting from Cars. -In the case of injuries from a premature starting of a train while a passenger was alighting therefrom, evidence is admissible to show the customary time allowed at the particular station for disembarking passengers, and, as explaining the reason for making a shorter stop than usual, that the train was behind time. On the question of the competency of a motorman through whose premature starting of the car which the plaintiff was attempting to board caused the injuries, it has been held proper to show that he also started the car while the injured passenger was alighting therefrom. Where the question is whether a person jumped from a street car or was thrown off by the jolt of the car, evidence that other persons were thrown off at the same time has been held relevant. Upon the issue whether the injured person boarded the train on the day in question as a passenger and was thrown off by the conductor, or boarded it as a trespasser and jumped off upon seeing the conductor, the defendant was allowed to show that the plaintiff was in the habit of getting on the defendant's train and riding for a short distance and dropping off.10 It has been held competent for the plaintiff to show that it was customary, at the crossing where he was injured, for people to board the street cars while in motion, as bearing on the question as to whether he was in the exercise of ordinary care for his personal safety.11 Where the de 3 Houston &c. R. Co. v. Norris (Tex. Civ. App.), 41 S. W. Rep. 708 (no off. rep.); San Antonio &c. R. Co. v. Lynch (Tex. Civ. App.), 40 S. W. Rep. 631 (no off. rep.). * Missouri &c. R. Co. v. Cook, 8 Tex. Civ. App. 376; s. c. 27 S. W. Rep. 769; s. c. aff'd, 12 Tex. Civ. App. 203; 33 S. W. Rep. 669; 34 S. W. Rep. 178. 5 Chicago &c. R. Co. v. Carpenter, 56 Fed. Rep. 451; s. c. 5 C. C. A. 551. Gulf &c. R. Co. v. Rowland, 82 Tex. 166; s. c. 18 S. W. Rep. 96; Chesapeake &c. R. Co. v. Reeves, 11 Ky. L. Rep. 14; s. c. 11 S. W. Rep. 464 (no off. rep.). 'Killian v. Georgia R. &c. Co., 97 Ga. 727; s. c. 25 S. E. Rep. 384. 8 Fuller v. Jamestown Street R. Co., 75 Hun (N. Y.) 273; s. c. 58 N. Y. St. Rep. 206; 26 N. Y. Supp. 1078. "Fogel v. San Francisco &c. R. Co. (Cal.), 42 Pac. Rep. 565 (no off. rep.). 10 Preston v. Hannibal &c. R. Co., 132 Mo. 111; s. c. 33 S. W. Rep. 783. 11 South Chicago City R. Co. v. Dufresne, 102 Ill. App. 493; s. c. aff'd, 200 Ill. 456; 65 N. E. Rep. 1075. fense to an action for injuries received while attempting to board a train is that such place was not the particular and exclusive place provided by the company for passengers to get on the trains, evidence is admissible to show the habit of the company to receive passengers at the place where the plaintiff attempted to board, that the doors were open to admit them, and that he was told to board the train, by one who he had a right to suppose was authorized to direct him where to board.12 Evidence that the injured passenger was a cautious person, careful in getting on and off cars on other occasions, is not admissible, as it has no tendency to show that he exercised due care at the time the injuries were received.13 In the case of injuries to a passenger by collision with a train on a parallel track, it has been held proper to show that passengers had been accustomed to alight from that side of the car as tending to show notice to the company of the probable presence of passengers on that side of the train and of the necessity that trains on such tracks be run constantly upon the theory of the presence of passengers thereon.14 In such a case evidence that passengers could have been prevented from alighting from the wrong side of the car by the use of guards on the platform was held relevant." $7829. Admissibility of Rules for Government of Employés. -There are two lines of decisions on the question of the admissibility of evidence of this character. Courts allowing the admission of the rules of a carrier for the guidance of its employés, in actions for injuries to passengers and other persons, generally proceed on the theory that the promulgation of such rules is a recognition of the necessity of their enforcement to prevent accidents, and that they are a part of the res gesta.16 Another line of decisions refuses such evidence in cases where the plaintiff was ignorant of their existence at the time of re 12 Baltimore &c. R. Co. v. Kane, 69 Md. 11; s. c. 13 Atl. Rep. 387. 13 Eaton v. Boston &c. R. Co., 67 N. H. 422; s. c. 40 Atl. Rep. 112. 14 Illinois &c. R. Co. v. Davidson, 76 Fed. Rep. 517; s. c. 1 Chic. L. J. Wkly. 583; 46 U. S. App. 300; 22 C. C. A. 306. 15 Atlanta &c. R. Co. v. Bates, 103 Ga. 333; s. c. 30 S. E. Rep. 41; 4 Am. Neg. Rep. 129. 18 Atlanta &c. R. Co. v. Bates, 103 Ga. 333; s. c. 30 S. E. Rep. 41; 4 Am. Neg. Rep. 129; Chicago &c. R. Co. v. Kelley, 75 Ill. App. 490 (violation of rule that incoming train should not pass another train from which passengers were alighting); Baltimore &c. R. Co. v. State, 81 Md. 371; s. c. 32 Atl. Rep. 201 (violation of rule forbidding trains to pass a train discharging its passengers); Cincinnati &c. R. Co. v. Altemeier, 60 Ohio St. 10; s. c. 41 Ohio L. J. 245; 6 Am. Neg. Rep. 179; 53 N. E. Rep. 300. "Where the defendant seeks to justify the conduct of its employes it is not necessary to show that either the rule or printed notice of the rule was known to plaintiff. It is only when it is attempted to charge a person with liability created by a rule or notice that it is necessary to bring home knowledge of its existence to him:" O'Neill v. Lynn &c. R. Co., 155 Mass. 371; s. c. 29 N. E. Rep. 630. ceiving his hurt, on the ground that his conduct could not have been. in any way influenced by such rules, and for the further reason that a person cannot by the adoption of private rules fix the standard of his duty to other persons. The reason against the admission of these rules would seem specially strong where they impose a higher degree of care than the law requires.18 17 § 7830. Evidence of Condition of Track at Other Places.-Very clearly a defective condition in a track at one point cannot be established by proof of a defect at another point.19 Such evidence is sometimes admitted, not for the purpose of proving a defect at the place of the accident, but for the purpose of proving a general bad condition of the road and that the company did not take due care of its tracks.20 § 7831. Condition of Roadbed after Derailment may be Shown. -In an action for injuries to a passenger by the derailment of a train, testimony of a witness as to his examination of the ties made soon after the accident and at the place of derailment, and their condition at that time, is competent, when offered for the sole purpose of establishing their condition at the time of the injury.21 § 7832. Cost of Equipment Not Relevant.-Evidence of the amount invested by a railroad company in its road, as tending to show that it had furnished its passengers with a more expensive road and equipment than its business would justify, and that its patrons had received better service than they had paid for, is inadmissible upon the issue whether the use of certain appliances constitutes negligence as against passengers.22 § 7833. Evidence of Failure to Maintain Guard Rails on Station Platform. On the question of due care in the maintenance of stations, 17 Louisville &c. R. Co. v. Berkey, 136 Ind. 181; s. c. 35 N. E. Rep. 3; Fonda v. St. Paul City R. Co., 71 Minn. 438; s. c. 74 N. W. Rep. 166; Central R. &c. Co. v. Skellie, 90 Ga. 694; s. c. 16 S. E. Rep. 657; O'Keefe v. Eighth Ave. R. Co., 33 App. Div. (N. Y.) 324; s. c. 53 N. Y. Supp. 940. 18 Isaackson v. Duluth St. R. Co., 75 Minn. 27; s. c. 77 N. W. Rep. 433; Alabama Great Southern R. Co. v. Clark, 136 Ala. 450; s. c. 34 South. Rep. 917. 19 Grant v. Raleigh &c. R. Co., 108 N. C. 462; s. c. 13 S. E. Rep. 209; Pittsburgh &c. R. Co. v. Williams, 74 20 Chicago &c. R. Co. v. Kinnare, 76 Ill. App. 394; Texas &c. R. Co. v. De Nulley, 60 Tex. 194; Texas &c. R. Co. v. Johnson, 86 Tex. 421; s. c. 25 S. W. Rep. 417. 21 Chicago &c. R. Co. v. Lewis, 145 Ill. 67; s. c. 33 N. E. Rep. 960. 22 Gulf &c. R. Co. v. Southwick (Tex. Civ. App.), 30 S. W. Rep. 592 (no off. rep.). evidence is relevant that there was no guard rail on the edge of the platform at an elevated station, where the injuries were received from being pushed off an overcrowded platform: 23 § 7834. Speed of Train to Show Violence of Collision.-Evidence of the speed at which an electric railway car was propelled is admissible as tending to show the violence of a passenger's fall caused by its collision with another car. 24. §7835. Unsuitableness of Place Selected for Ejection of Female Passenger. On the question of the care of the carrier in the selection of the place for the ejection of a female passenger, evidence is admissible that there was no police protection for women or strangers at the place where a female passenger was thrust from a train, although this fact is not alleged in the declaration.25 $7836. Injuries from Insane Fellow Passenger. It is not required in an action for injuries received at the hands of an insane fellow passenger that proof of knowledge of insanity by the carrier should precede the proof that the passenger was insane at the time the injuries were inflicted: this proof may follow.26 Any evidence of knowledge of the insanity of the passenger on the part of the officers in charge of the train will suffice. In the particular case announcing this principle, it was shown that the conductor in charge of the train had carried the passenger committing the assault some weeks before, at which time he was violently insane and hand-cuffed, and that, on the particular trip when the assault was' committed, the conduct of the passenger was so marked as to attract the attention of other passengers, who communicated their fears to the conductor, 27 §7837. Loss of Effects of Occupant of Sleeping Car.-In an action against a sleeping car company to recover for loss of effects, the plaintiff may show that the conductor directed him to place the package in the place from which it was taken, and assured him of its safety.28 In such a case, the conduct and statements of the conductor and porter when notified of the loss may be considered by the jury.29 23 McGearty v. Manhattan R. Co., 15 App. Div. (N. Y.) 2; s. c. 43 N. Y. Supp. 1086. 24 Gillespie v. Coney Island &c. R. Co., 41 N. Y. St. Rep. 97; s. c. 16 N. Y. Supp. 850. 25 Atlanta &c. R. Co. v. Hardage, 93 Ga. 457; s. c. 21 S. E. Rep. 100. 20 St. Louis &c. R. Co. v. Green thal, 77 Fed. Rep. 150; s. c. 40 U. S. App. 554; 23 C. C. A. 100. St. Louis &c. R. Co. v. Greenthal, 77 Fed Rep. 150; s. c. 40 U. S. App. 554; 23 C. C. A. 100. 28 Hampton v. Pullman Palace-Car Co., 42 Mo. App. 134. 20 Hampton v. Pullman Palace-Car Co., 42 Mo. App. 134. CHAPTER CCXI. EVIDENCE IN ACTIONS FOR INJURIES FROM DEFECTS IN HIGHWAYS, STREETS AND SIDEWALKS. SECTION 7840. Evidence necessary to charge municipal corporation. 7841. Evidence of official resolu SECTION 7848. Doctrine that evidence of other accidents to other persons is inadmissible. tions, reports, ordinances, 7849. Doctrine that such evidence etc. 7842. Various questions of evidence 7844. Evidence of the condition of of the accident. 7845. Condition of the highway at other places. 7846. Further of apertures, defects, obstructions, etc. is admissible. 7850. Evidence of subsequent re pairs. 7851. Other safe route which might have been taken. 7852. Evidence of the habits of the 7853. Evidence to show that other 7855. Relevancy and irrelevancy of 7847. Evidence that others had used evidence in particular cases. the highway without acci- 7856. Evidence for the defendant. dent. 7840. Evidence Necessary to Charge Municipal Corporation.-In a case in New York, the grounds of liability of municipal corporations for defects in their streets or highways were stated thus: "Municipal corporations are not guarantors for the absolute safety of all persons from injuries by reason of defects in, or obstructions of, the streets or highways of the municipality. They are only liable when the defects or obstructions are the results of their acts, or of some neglect or omission of duty by them or their servants or agents, and individuals in the use of streets receive injuries therefrom without fault on their part. Some overt act of the municipality or its officers, resulting in injury to third persons, or some neglect or omission of duty in repairing defects or removing obstructions, must be established in order to charge the municipality with the consequences of any defects in, or obstruction of, the thoroughfares within the corporation." Therefore, where there was no other evidence to charge 1 Gorham v. Cooperstown, 59 N. Y. 660. 1 |