plaintiff in an action for injuries received at a railroad crossing that he looked and listened and did not hear or see the train, must be disregarded by the jury where the other evidence conclusively shows that if he had looked and listened, he must have heard and seen the train.20 Witnesses called to testify as to the condition of a defective sidewalk cannot be asked whether or not, if certain defects had existed, they would have noticed them, since that is a mere matter of opinion.21

§ 7866. Testimony of the Plaintiff on Former Trial.-Where the issues on a former trial are unchanged, it is competent to prove on a later trial what the injured party, since deceased, testified to on the first trial.22 On the second trial of an action for injuries received in being struck by a locomotive, it was held proper to admit evidence tending to show that the plaintiff's testimony that his distance from the locomotive when he first observed it was less than he testified it to have been in a former trial, was influenced by his having read the opinion of the Supreme Court on appeal reversing the judgment rendered on the former trial upon the ground that he was chargeable with contributory negligence in not getting off the track before he was struck by the locomotive.23

§ 7867. Evidence to Show Hostile Feelings of the Witness.-It is always competent to show that a witness produced upon the trial of an action is hostile in feelings toward the party against whom he is called to testify, or that he entertains malice toward that party.24

§ 7868. Ordinances.-Where the evidence tends to show that a particular act was prohibited by ordinance, and that such violation contributed to the injury, then the ordinance is properly admitted on the

Co., 88 Hun (N. Y.) 471; s. c. 69 N. Y. St. Rep. 39; 34 N. Y. Supp. 978. On the other hand, the testimony of two men engaged in business taking their attention from the approach of a railway train, that they did not hear the bell ring, one of whom says that he did not notice anything about the bell at the time, and neither of whom says that it was rung, was held insufficient to show that the bell was not rung continuously for eighty rods before the train reached a crossing where an accident occurred: Hubbard v. Boston &c. R. Co., 159 Mass. 320; s. c. 34 N. E. Rep. 459.

Burt v. Wrigley, 43 Ill. App. 367. 22 Chicago &c. R. Co. v. O'Conner, 119 Ill. 586; s. c. 6 West. Rep. 773.

23 Galveston &c. R. Co. v. Porfert, 1 Tex. Civ. App. 716; s. c. 20 S. W. Rep. 870.

24 Atwood v. Welton, 7 Conn. 71; Collins V. Stephenson, 8 Gray (Mass.) 441; Long v. Lambkin, 9 Cush. (Mass.) 365; Gale v. New York &c. R. Co., 76 N. Y. 595; Hotchkiss v. Germania Fire Ins. Co., 5 Hun (N. Y.) 91; Newton v. Harris, 6 N. Y. 345; Schultz v. Third Ave. R. Co., 89 N. Y. 242; Starr v. Cragin, 24 Hun (N. Y.) 178; Starks v. People, 5 Denio (N. Y.) 106; Drew v. Wood, 26 N. H. 363; Hutchinson v. Wheeler, 35 Vt. 340.

29

question of negligence, though not pleaded;25 but the rule is otherwise where the action is founded on a violation of the ordinance, and here it is necessary to plead the ordinance.2 In actions against the city itself the ordinance is admitted under the rule which allows proof of the acts and declarations of the parties concerning the matter in controversy.27 An ordinance set out in the complaint may be proved if relied upon as a ground of recovery, notwithstanding its direct violation is but obscurely alleged.28 In all these cases, it must appear that the violation of the ordinance was the proximate cause of the injuries received. Thus, an ordinance prohibiting any telephone wire from being strung or located in such proximity to any other wire or object as to threaten danger to the life of any person, was held inadmissible in an action for personal injuries caused by the falling of a brick from a pier to which a telephone wire was attached. So, an ordinance requiring railroad companies to station watchmen at city crossings to warn persons about "to cross the railroad track at any such crossing" on the approach of a train, was held to have been properly excluded in a case where the accident did not occur at a crossing and the violation of the ordinance could have had no causal connection therewith. An ordinance regulating the speed of "trains of cars" is

31

25 Central of Georgia R. Co. v. Partridge, 136 Ala. 587; s. C. 34 South. Rep. 927; Highland Ave. R. Co. v. Sampson, 112 Ala. 425; s. c. 20 South. Rep. 566; Harrison v. Sutter St. R. Co., 116 Cal. 156; s. c. 47 Pac. Rep. 1019; Johnson v. Thomas (Cal.), 43 Pac. Rep. 578 (no off. rep.) (ordinance forbidding immoderate driving); Atlanta Consol. St. R. Co. v. Foster, 108 Ga. 223; s. c. 33 S. E. Rep. 886; Western &c. R. Co. v. Meigs, 74 Ga. 857; Brink's Chicago City Exp. Co. v. Kinnare, 67 Ill. App. 498 (ordinance regulating speed of horses on streets); Crocker v. Schureman, 7 Mo. App. 358; Meyers v. Kansas City, 108 Mo. 48; s. c. 18 S. W. Rep. 914; Union Pac. R. Co. v. Rassmussen, 25 Neb. 810; s. c. 41 N. W. Rep. 778; International &c. R. Co. v. Lee (Tex. Civ. App.), 34 S. W. Rep. 160 (no off. rep.) (ordinance regulating speed of trains); San Antonio Traction Co. v. Upson, 31 Tex. Civ. App. 50; s. c. 71 S. W. Rep. 565.

26 Faber v. St. Paul &c. R. Co., 29 Minn. 465; Judd v. Wabash &c. R. Co., 23 Mo. App. 56; s. c. 5 West. Rep. 67; Nutter v. Chicago &c. R.

Co., 22 Mo. App. 328; s. c. 5 West.
Rep. 72.

27 McNerny v. Reading, 150 Pa. St.
611; s. c. 25 Atl. Rep. 57; McLeod
v. Spokane, 26 Wash. 346; s. c. 67
Pac. Rep. 74. See also, Decatur v.
Hamilton, 89 Ill. App. 561.
In an
action for injuries received by rea-
son of the plaintiff's sleigh being
overturned by striking a stone
placed in the defendant city's street
so as to prevent driving over the
curb and the park laid out along
such curb, an ordinance of the city,
authorizing the parking and curb-
ing of such street, is admissible as
bearing on the issue whether the de-
fendant was negligent: Herries v.
Waterloo, 114 Iowa 374; s. c. 86 N.
W. Rep. 306.

23 Lake Shore &c. R. Co. v. O'Con-
ner, 115 Ill. 254; s. c. 3 West. Rep.
465.

29 West Chicago St. R. Co. v. Annis, 165 Ill. 475; s. c. 1 Chic. L. J. Wkly. 681; 13 Nat. Corp. Rep. 370; 46 N. E. Rep. 264.

30 Southwestern Tel. &c. Co. V. Beatty. 63 Ark. 65; s. c. 37 S. W. Rep. 570.

31 Spillane v. Missouri &c. R. Co., 135 Mo. 414; s. c. 37 S. W. Rep. 198.

1

admissible, though the injuries were inflicted by a locomotive; the term "car" being held to include a locomotive.32 On the other hand, an ordinance fixing the rate of speed for vehicles drawn by horses and horses ridden by persons, has been held irrelevant where the question at issue was the reasonable speed of an electric car.

§ 7869. Records of Weather Bureau.-On the question whether premises were sufficiently lighted by daylight on a day when injuries were received, the records of the United States Weather Bureau are admissible to show the condition of the weather at that time.34

§ 7870. Evidence of Conditions Before and After Accident.Where it is shown that there has been no change in the conditions meanwhile, evidence as to the condition before or after the happening of the accident is admissible to show the condition at the time the injuries complained of were received.35 This principle of evidence..

though invoked oftenest in highway injury cases,36 is not limited to that class of negligence, but is recognized and applied in other forms of negligence, some examples of which are collected in the margin.37 The reasons for the admission of this character of evidence are strong in cases of injury to employés through defects in appliances or machinery; and such evidence is admitted without question where the condition at other times is not too remote.38 But in all cases, the evi

dence of facts tending to show that an elevator was unskillfully constructed is admissible on the issue as to the proper construction of the elevator, in an action for personal injuries received in the operation of the elevator about six months after the date to which the evidence relates: The Oriental v. Barclay, 16 Tex. Civ. App. 193; s. c. 41 S. W. Rep. 117.

"Evidence that two hours after a collision the drawbar, the breaking of which caused the accident, was found to be in a rusty condition, is admissible for the purpose of showing its condition at the time of the accident: Chicago &c. R. Co. v. Gillison, 173 Ill. 264; s. c. 50 N. E. Rep. 657; 64 Am. St. Rep. 117; aff'g s. c. 72 Ill. App. 207. Evidence of the condition of a cable by which an elevator was operated, about an hour after it parted, is admissible in the absence of any change in its condition in the meantime, to show its condition at the time of the accident: Falkenau v. Abrahamson, 66 Ill. App. 352; s. c. 1 Chic. L. J. Wkly. 307. See also, Sievers v. Peters Box &c. Co., 151 Ind. 642; s. c. 8 Am. & Eng. Corp. Cas. (N. S.) 629; 50 N. E. Rep. 877; 52 N. E. Rep. 399; 1 Repr. (Ind.) 420. Evidence of the existence of defects in a railroad track some months after an accident alleged to be due to such defects is admissible in connection with other evidence showing that the condition of the track remained substantially the same: Jacksonville &c. R. Co. v. Southworth, 135 Ill. 250; s. c. 25 N. E. Rep. 1093; aff'g s. c. 32 Ill. App. 307. Evidence as to position of a light within ten or fifteen minutes after the happening of an accident alleged to have been caused by the absence of a light on a steamboat dock is admissible where it corroborates other evidence as to the position of the light

at the time of the accident: Bacon v. Casco Bay &c. Co., 90 Me. 46; s. c. 37 Atl. Rep. 328. On an issue whether a platform on which plainplaintiff slipped while jumping from a moving train was greasy at the time, evidence as to whether there was grease on it five months before was too remote: Newcombe v. New York &c. R. Co., 169 Mo. 409; s. c. 69 S. W. Rep. 348. In an action for the death of a passenger on a street car, caused by an alleged defect in the car track, evidence of the condition of the track some time after the accident is competent in connection with evidence that the condition then was substantially the same as at the time of the accident: Byrne v. Brooklyn City &c. R. Co., 6 Misc. (N. Y.) 260; s. c. 58 N. Y. St. Rep. 127; 26 N. Y. Supp. 760.

38 Chicago &c. R. Co. v. Gillison, 72 Ill. App. 207 (condition of drawbar two hours after accident); Creamery Package Man. Co. v. Hotsenpiller, 159 Ind. 99; s. c. 64 N. E. Rep. 600 (condition of machine one week after accident); Island Coal Co. v. Neal, 15 Ind. App. 15; s. c. 42 N. E. Rep. 953; 43 N. E. Rep. 463 (condition of mine roof one year before accident not too remote); Powers v. Boston &c. R. Co., 175 Mass. 466; s. c. 56 N. E. Rep. 710 (condition of locomotive step two months before accident); Doyle v. Missouri &c. Co., 140 Mo. 1; s. c. 41 S. W. Rep. 255 (condition of scaffold two hours before accident); New York &c. R. Co. v. Ellis, 2 Ohio Dec. 627 (condition of timbers in bridge two months before accident); Mixter v. Imperial Coal Co., 152 Pa. St. 395; s. c. 25 Atl. Rep. 587; 31 W. N. C. (Pa.) 400; 23 Pitts. L. J. (N. S.) 293 (condition of brake two days after accident); Gulf &c. R. Co. v. Johnson, 83 Tex. 628; s. c. 19 S. W. Rep. 151 (condition of hand car ten days after accident not too remote);

dence will be received only where it is clear that the condition of the place or appliance has not changed meanwhile.89

§ 7871. Evidence of Repairs and Precautions after the AccidentWhen Such Evidence Admissible. It is now settled by the great weight of authority as well as reason that evidence of subsequent repairs or precautions taken after the happening of the accident causing the injury is not admissible to prove antecedent negligence. The