show his employment,22 and duties,23 and the capacity in which he acted.24 But evidence that the passenger had at some previous time made threats against the employee is inadmissible,25 as is also evidence that the employee had been criminally prosecuted for the assault,26 or subsequently been. discharged.27 Abuse and insult. In an action for abusive or insulting language or conduct of an employee, plaintiff may show the continuance of the abusive or insulting acts even after he had been relieved from duty by another employee,28 the manner and the tone of voice accompanying the language used,2 and the presence of others on the car at the time;30 and defendant may show the employee's general reputation for politeness.31 But evidence that the ductor made no effort to interfere, R. Co. v. Birchfield, 105 Va. 809, 54 [b] Discontinuing journey.-In an action for an assault by a third party in defendant's station, it was not error to permit plaintiff to show that he did not continue his trip for which he had purchased a ticket. Southern R. Co. v. Haynes, 186 Ala. 60, 65 S 339. 22. Southern R. Co. v. Crone, 51 Ind. A. 300, 99 NE 762; Rand v. Butte Electric R. Co., 40 Mont. 398, 107 P 87. [a] Illustration.-In an action for personal injuries by a passenger alleged to have been assaulted by one P as agent of defendant, the admission of evidence that P had prosecuted parties for being intoxicated on trains and also for jumping on and off is proper tending as to prove that P was in the employ and service of defendant. Southern R. Co. v. Crone, 51 Ind. A. 300, 199 NE 762. [b] Special deputy sheriff.-Evidence that the persons committing the assault were appointed special deputies by the sheriff at the request of the carrier is material only in so far as it tends to show their employment by the carrier. Rand v. Butte Electric R. Co., 40 Mont. 398, 107 P 87. 23. Brewster V. Interborough Rapid Transit Co., 68 Misc. 348, 123 NYS 992. 24. Philadelphia, etc., R. Co. v. Green, 110 Md. 32, 71 A 986. [a] As public officer,-Where the question is in what capacity an employee was acting when he assaulted a passenger, whether as an employee of defendant or as a peace officer, under what he regarded as a valid appointment and qualification, testimony to show that he was a public officer, the validity of the appointmen being entirely collateral, should not be stricken out. Philadelphia, etc., R. Co. v. Green, 110 Md. 32, 71 A 986. 25. Hanson v. Urbana, etc., St. R. Co., 75 Ill. A. 474; Baltimore, etc., R. Co. v. Barger, 80 Md. 23, 30 A 560, 45 AmSR 319, 26 LRA 220. [a] Illustration.-A question whether plaintiff on some previous day had used abusive and profane language to the conductor on the train and had threatened him was improper, where it was not stated when or on what occasion this occurred. Baltimore, etc., R. Co. v. Barger, 80 Md. 23. 30 A 560, 45 AmSR 319, 26 LRA 220. 26. Hanson v. Urbana, etc., St. R. Co.. 75 Ill. A. 474; Layne v. Chesapeake, etc., R. Co., 68 W. Va. 213, 69 SE 700. 31 LRANS 414. [a] Indictment, conviction, and sentence. In an action by a passenger against a carrier for an assault on him by a special policeman of 29 abuse or insult was brought about by the misconduct of the passenger is admissible only in mitigation of damages. 35 32 [§ 1441] (5) Condition of Carrier's Premises.33 As bearing on the question of the carrier's negligence in regard to its station premises or platforms, evidence is admissible as to the conditions existing there at the time of the accident,3 34 and as to whether the station was a regular, or only a flag, station.3 But evidence as to conditions existing at other places,36 or at the same place at other times before or after the accident,37 is inadmissible, unless it appears that the conditions have remained the same, as where only a short space of time has intervened.38 But it has been held that evidence tending to show how the accommodations at the station the carrier at the time when the [a] Thus where the evidence 29. Alabama Great Southern R. [a] Evidence held inadmissible.- 30. San Antonio Tract. Co. V. 33. Track or roadbed see infra § 1443. 34. Ky.-Louisville, etc., R. Co. v. Payne, 133 Ky. 539, 118 SW 352, 19 AnnCas 294. Mass.-Kelley v. Boston El. R. Co., Mich.-Collins v. Toledo, etc., R. N. Y.-McGearty v. Manhattan R. Tex.-International, etc., R. Co. v. [a] Evidence held inadmissible.(1) Where in an action for injuries while alighting evidence showed that the train's approach to the station had properly been announced, and the way from the train to the platform was lighted, evidence as to the extent of the carrier's freight business conducted at its freight depot on the other side of the track, and on the side where the passenger attempted to alight, was inadmissible, at least in the absence of evidence that the passenger knew of the existence of the freight depot, or that he had business to transact there. Louisville, etc., R. Co. v. Payne, 133 Ky. 539, 118 SW 352, 19 AnnCas 294. (2) In an action against an elevated street railroad company for injuries received through being crowded off defendant's station platform by reason of defendant's failing to provide proper platform facilities, a question asked one of defendant's witnesses, whether or not in determining the plan of operating a street railroad it was proper to consider the desires of the traveling public, where they can be taken into consideration without interfering with safety in the operation of the road, was properly excluded. Beverley V. Boston El. R. Co., 194 Mass. 450, 80 NE 507. [b] Guard rail around platform.Evidence that defendant failed to erect a guard rail along a station platform is admissible in an action for negligently overcrowding the platform so that plaintiff was pushed off. McGearty v. Manhattan R. Co., 15 App. Div. 2, 43 NYS 1086. 35. Chicago, etc., R. Co. v. Stanford, 84 Ark. 406, 106 SW 205. 36. Central of Georgia R. Co. v. McNab, 150 Ala. 332, 43 S 222; Nichols v. Dubuque, etc., R. Co., 68 Iowa 732, 28 NW 44; Louisville, etc., R. Co. v. Henry, 44 SW 428, 19 KyL 1783; Ranney v. St. Johnsbury, etc., R. Co., 67 Vt. 594, 32 A 810. [a] Thus (1) where in an action for injuries sustained in alighting from a train it appeared that plaintiff was a car length from the platform where other witnesses alighted, evidence as to the condition of the platform as to being crowded where such witness alighted was inadmissible. Central of Georgia R. Co. v. McNab, 150 Ala. 332, 43 S 222. In an action for injuries sustained in attempting to alight from a car on defendant's station platform, the mere fact that such platform is higher than the one at another station is immaterial, and evidence of such fact is inadmissible. Nichols v. Dubuque, etc., R. Co., 68 Iowa 732, 28 NW 44. (2) 37. Chicago, etc., R. Co. v. Rorvig, 217 Fed. 953, 133 CCA 625; Pennsylvania Co. v. Marion, 104 Ind. 239, 3 NE 874; Newcomb V. New York Cent., etc., R. Co., 169 Mo. 409, 69 SW 348. [a] Photographs.-Where immediately after a passenger had fallen on a ridge of ice on a station platform the ice was covered with salt which removed it, and there was no controversy as to the other relative locations as disclosed by the evidence, photographs of the platform, etc., taken two or three days after the accident were properly excluded. Chicago. etc., R. Co. v. Rorvig. 217 Fed. 953, 133 CCA 625. Photographs as evidence generally see Evidence [17 Cyc 414 et seq]. 38. New York, etc., R. Co. V. at which the accident occurred compare as to safety with those of other stations is admissible for the purpose of showing lack of care on the part of the carrier in failing to furnish proper accommodations, particularly where the objecting party has introduced like evidence with respect to other stations.39 Evidence of statements of a member of a railroad commission to an official of the railroad company in regard to the condition of a station and its platform is admissible to show notice of its condition to the company." 40 Evidence as to the small cost for which a defect at a station could be remedied is admissible as proving want of care on the part of the company in not making repairs before the accident.41 [§ 1442] (6) Condition of Vehicles and Appliances. On the question of the carrier's negligence Mushrush, 11 Ind. A. 192, 37 NE 954, 38 NE 871; Texas Midland R. Co. v. Brown, (Tex. Civ. A.) 58 SW 44; Sullivan v. Delaware, etc., Canal Co., 72 Vt. 353, 47 A 1084. [a] Thus (1) in an action for injuries received on a station platform evidence that obstructions were there an hour after the accident was admissible to corroborate evidence that they were there at the time of the accident. New York, etc., R. Co. v. Mushrush, 11 Ind. A. 192, 37 NE 954, 38 NE 871. (2) Evidence of the existence of a hole in a station platform ten hours after an accident which had been caused thereby was properly admitted to prove the condition of the platform at the time of the accident, where it was limited by the charge of the court to that purpose. Texas Midland R. Co. v. Brown, (Tex. Civ. A.) 58 SW 44. 39. Chesapeake, etc.. R. Co. V. Barger, 112 Va. 688, 72 SE 693. 40. Smoak v. Savannah, etc., R. Co., 65 S. C. 299, 43 SE 662. 41. Haskell v. Manchester St. R. Co., 73 N. H. 587, 64 A 186. 42. Ala. Southern R. Co. v. Harrington, 166 Ala. 630, 52 S 57, 139 AmSR 59; Kansas City, etc., R. Co. v. Smith, 90 Ala. 25, 8 S 43, 24 AmSR 753; Mobile, etc., R. Co. v. Ashcraft, 49 Ala. 305. Ill. Stuchly v. Chicago Co., 182 III. A. 337. Mich.-Gerlach City R. Mass.-Cutts v. Boston El. R. Co., 202 Mass. 450, 89 NE 21. v. Detroit United R. Co., 171 Mich. 474, 137 NW 256. Mo.-Price v. Metropolitan St. R. Co., 220 Mo. 435, 119 SW 932, 132 AmSR 588. N. H.-Holyoke v. Grand Trunk R. Co., 48 N. H. 541. N. Y.-Myer v. Brooklyn City R. Co., 10 Misc. 11, 30 NYS 534. Oh.-Cleveland, etc., Tract. Co. v. Ward, 27 Oh. Cir. Ct. 761. Or. Lakin v. Oregon Pac. R. Co., 15 Or. 220, 15 P 641. Tex.-International, etc., R. Co. v. Duncan, 55 Tex. Civ. A. 440, 121 SW 362. Wis.-Schlag v. Chicago, etc., R. Co.. 152 Wis. 165, 139 NW 756. [a] Evidence that plaintiff was a "chronic kicker," is inadmissible in an action by a railroad postal clerk against a railroad company for damages resulting from illness caused by the failure to heat the mail car in which he worked. Southern R. Co. v. Harrington, 166 Ala. 630, 52 SW 57, 139 AmSR 59. [b] Conversations between a motorman and a supervisor of the carrier, in which the supervisor made remarks tending to show that the car in question which caused the injury was out of repair, are competent on the question of negligence. Healy v. Chicago City R. Co., 160 Ill. A. 7. [el Evidence as to the purpose which handholds were designed to serve is inadmissible. Gerlach V. Detroit United R. Co., 171 Mich. 474, 137 NW 256. relative to injuries caused by its cars or other vehicles or appliances, evidence tending to show their condition or equipment at the time of the accident is admissible. For this purpose evidence as to the condition of the car or vehicle at other times before or after the accident is admissible where it does not appear that there has been a change in its condition in the meantime;43 but it has been held that in the absence of proof that the condition has remained the same such evidence is inadmissible.** Evidence as to the condition of other cars or vehicles is generally held inadmissible, in the absence of proof that they are similarly constructed and equipped as the car or vehicle in question;45 but for the purpose of determining whether a car was properly equipped, evidence may be admitted as to whether other cars had been constructed in the [d] Elevator cases.-(1) In an Dorrance v. Michigan United [c] Elevator case. In an action for injuries to a passenger in an elevator through the falling thereof. evidence relating to the condition of the elevator as far back as two years prior to the injury and on down to within a few days thereof, and tending to show that the elevator would not run properly, that the cable was rusty and rotten, that bolts were loose, that the guide shoes were constantly getting out of place, and that the rod governing the safety appliances was so bent that they would not properly perform their functions was admissible. Orcutt v. Century Bldg. Co., 214 Mo. 35, 112 SW 532. 44. Walling v. Trinity, etc., R. Co., 48 Tex. Čiv. A. 35, 106 SW 417: Texas Midland R. Co. v. Ellison, 39 Tex. Civ. A. 172, 87 SW 213. 45. Ala.-Southern R. Co. v. Harrington, 166 Ala. 630, 52 S 57, 139 AmSR 59. Fla.-Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 S 318. Ind. Ohio, etc., R. Co. v. Voight, 122 Ind. 288, 23 NE 774. Ky.-Louisville, etc., R. Co. V. V. R. I.-Marsh v. Rhode Island Co., 35 R. I. 270, 86 A 724; Canham v. Rhode Island Co., 35 R. I. 177, 85 A 1050. [a] Illustrations.-(1) In an action by a railroad postal clerk for damages caused by illness from failure to heat the mail car in which he worked, evidence as to the temperature of the express car in the same train was not relevant, where it appeared that the express car and the mail car were heated differently in some respects, although each contained steam pipes from the engine, and the evidence showed that the mail car was cold while the express car was comfortable. Southern R. Co. v. Harrington, 166 Ala. 630, 52 S 57, 139 AmSR 59. (2) It is error to admit testimony of witnesses as to the comparative equipment of passenger trains of defendant railroad company used on a branch line where such injury occurred, and the trains used on the main lines, as to being modern and up to date, where no foundation is laid therefor in the pleading or other testimony, such testimony having a tendency to prejudice the jury. Atlantic Coast Line R. Co. v. Črosby, 53 Fla. 400, 43 S 318. car [a] Illustration.-Under the rule that, where a condition is once shown to exist, it will be presumed to continue until the contrary appears, evidence in an action against a street railroad for injury to a passenger alighting from a car as to the condition of the step of the car and the grating at the back of the step seven months prior to the accident is admissible. Corcoran v. Albuquerque Tract. Co., 15 N. M. 9, 103 P 645. [b] Ice and snow in car.-In an action for injuries to a street passenger slipping on ice and snow in the vestibule of a car, evidence that snow and ice were in the vestibule when the car made its subsequent trip in charge of the same crew was admissible only to show the climatic conditions and that snow was tracked that day and that it was congealing. Dorrance v. Michigan United R. Co., 175 Mich. 198, 141 NW 697. [b] Evidence in rebuttal.-Where defendant sought to prove that their large cars, including the one in question, had a device on them that effectually precluded jerking, evidence of witnesses as to their experience while riding on other cars of defendant was proper in rebuttal. Orth v. Saginaw Valley Tract. Co., 162 Mich. 353, 127 NW 330. same manner,46 or as to whether a certain improvement had extensively been known and used prior to the time of the accident.47 In a railroad mail clerk's action for injuries claimed to have been due to the insufficient or defective equipment of the mail car, United States statutes giving the postmaster-general authority to require certain things to be done by the carrier in connection with contracts to be made for the carriage of mail under the railroad mail service are properly admitted, and this is also true of sections of the postal laws and regulations containing provisions as to railroad mail cars and and their equipment, and pamphlet issued by the post-office department containing specifications for fixtures for mail cars.49 48 a 46. Central of Georgia R. Co. v. Storrs, 169 Ala. 361, 53 S 746. [a] Illustration.-On an issue whether the space between passenger cars on a train was negligently left uncovered, evidence as to whether any cars had been constructed within the last five years with platforms like those on the car in question was admissible as a circumstance to go to the jury, determining whether the cars were properly equipped. Central of Georgia R. Co. v. Storrs, 169 Ala. 361, 53 S 746. 47. Hegeman v. Western R. Corp., 16 Barb. 353 [aff 13 N. Y. 9, 64 AmD 517]. 48. Washington, etc., R. Co. V. Carter, 117 Va. 424, 85 SE 482. 49. Washington, etc.. R. Co. V. Carter, 117 Va. 424, 85 SE 482. 50. Kingman v. Lynn, etc., R. Co., 181 Mass. 387, 64 NE 79; Baruth v. Poughkeepsie City, etc., Electric R. Co., 89 App. Div. 324, 85 NYS 822; Richmond R., etc., Co. v. Bowles, 92 Va. 738. 24 SE 388; Ferguson v. Truax, 132 Wis. 478, 110 NW 395, 111 NW 657, 112 NW 513. 14 LRANS 350, 13 AnnCas 1092. [§ 1443] (7) Condition of Track or Roadbed. As bearing on the question of the carrier's negligence, evidence, if otherwise competent, is admissible as to the condition of its track or roadbed at the time and place of the accident,56 and of notice thereof to the carrier's employees; but where the evidence establishes negligence independently of the condition or construction of the track, evidence on the latter question is immaterial.58 As a general rule, the evidence to show the defective condition of the track must be confined to the place of the accident, or in the immediate vicinity where the conditions generally were the same; and evidence as to the condition of the track at times and places N. C.-Grant v. Raleigh, etc., R. Co., 108 N. C. 462, 13 SE 209. Tex.-Texas Tract. Co. v. Hanson, (Civ. A.) 143 SW 214. Vt.-Parker v. Boston, etc., R. Co., 84 Vt. 329, 79 A 865. [a] Evidence held admissible.(1) Where plaintiff claimed that his injuries were caused by the sudden jerking of a cable car which had just passed over a crossing of other tracks, after stopping to let passengers alight, evidence of the condition of the tracks at the crossing, and of the machinery, was proper, although negligence in that respect was not alleged, since such evidence was merely to show whether there was a stop, a start, and a jerk, especially where no defects were shown. Setzler v. Metropolitan St. R. Co., 227 Mo. 454, 127 SW 1. (2) Where, in an action for injuries to a passenger, caused by the derailment of the train, all of the counts of the declaration alleged negligent running of train, the condition of the track was properly considered in determining whether the mode of running the train was negligent, and evidence of the condition of the ties just after the accident was admissible. Parker v. Boston, etc., R. Co., 84 Vt. 329, 79 A 865. (3) Where a passenger was thrown from a street car and killed, evidence that other cars of the same pattern jolted badly over the uneven tracks at that point is admissible. Hatchett v. St. Louis United R. Co., (Mo.) 175 SW 878. the [a] Elevator case. In an action for injuries sustained by one riding in а passenger elevator, in consequence of the fall of the elevator, a letter written by the agent of the nonresident owner to the owner prior to the accident, stating that the elevator was out of order, and that a third person had stated that the whole machine ought to be built over before it would work right, was admissible as showing that the owner had notice of defects therein. Fergu- | juries caused by the derailment of son v. Truax, 132 Wis. 478, 110 NW 395, 111 NW 657, 112 NW 513, 14 LRANS 350, 13 AnnCas 1092. 51. Southern R. Co. v. Harrington, 166 Ala. 630, 52 S 57, 139 AmSR 59. 52. Chicago, etc., R. Co. v. Benedict, 154 Ky. 675, 159 SW 526. 53. Louisville, etc., R. Co. V. Scalf, 110 SW 862, 33 KyL 721, 26 LRANS 263. 54. Wormsdorf v. Detroit City R. Co., 75 Mich. 472, 42 NW 1000, 13 Am SR 453. 55. Wormsdorf v. Detroit City R. Co., 75 Mich. 472, 42 NW 1000, 13 Am SR 453. 56. Colo. Colorado Midland R. Co. v. McGarry, 41 Colo. 398, 92 P 915. Dak.-Pattee v. Chicago, etc., R. Co., 5 Dak. 267, 38 NW 435. Ga.-Central of Georgia R. Co. v. Brown, 138 Ga. 107, 74 SE 839. III.-Elgin, etc., Tract. Co. V. Hench, 132 III. A. 535. Mo.-Hatchett v. St. Louis United R. Co., 175 SW 878; Setzler v. Metropolitan St. R. Co.. 227 Mo. 454, 127 SW 1: Gardner v. Metropolitan St. R. Co., 223 Mo. 389, 122 SW 1068, 18 AnnCas 1166: Gage v. St. Louis Transit Co., 211 Mo. 139, 109 SW 13. [b] Evidence held inadmissible.(1) Although, in an action for in the train, rotten pieces of wood, purporting to be parts of the ties forming part of defendant's track at the place of accident, were introduced in evidence by plaintiff, testimony of the conductor of the train, in rebuttal, that shortly after the derailment he had seen several persons with pieces of wood in their hands, which pieces were not parts of the crossties under the rails where the accident occurred, and that he had so stated to them, was inadmissible, where none of the persons to whom the conductor referred were witnesses at the trial. Colorado Midland R. Co. v. McGarry, 41 Colo. 398, 92 P 915. (2) Evidence that the land along the track where an accident occurred was low and wet is inadmissible to show a defective construction of the roadbed. Pattee v. Chicago, etc., R. Co., 5 Dak. 267, 38 NW 435. (3) It is not error to exclude a question whether, if a switch is worn, the flanges of the engine wheels might not throw it open, when the witness is not an expert, and there is no evidence that the switch was worn. Grant V. Raleigh, etc., R. Co., 108 N. C. 462, 13 SE 209. .59 [c] A resolution of a city council concerning the safety of a bridge, or the lack of the safety thereof, and other records of such body pertaining to the same subject matter, are not competent in a suit between third parties which brings into question the condition of such bridge. Elgin, etc., Tract. Co. v. Hench, 132 III. A. 535. 57. Chicago, etc., R. Co. v. Cain, 37 Tex. Civ. A. 531, 84 SW 682. [a] Notice of condition of track.In an action for injuries caused by the derailment of the train, due to a washout, evidence of a passenger on the wrecked train that he heard one of the crew of a passing train say to one of the trainmen of the train which was wrecked, "You had better not pull out from El Reno, as I believe you will go into the river," was admissible to show notice to the crew of the wrecked train of the probably dangerous condition of the track, the wreck having occurred in that vicinity. Chicago, etc., R. Co. v. Cain, 37 Tex. Civ. A. 531, 84 SW 682. 58. Hartwig v. Chicago, etc., R. Co., 49 Wis. 358, 5 NW 865. 59. U. S.-Vicksburg, etc., R. Co. v. Putnam, 118 U. S. 545, 7 SCt 1, 30 L. ed. 257. Ala. Richmond, etc., R. Co. V. Vance, 93 Ala. 144, 9 S 574, 30 AmSR 41. Dak.-Pattee v. Chicago, etc., R. Co., 5 Dak. 267, 38 NW 435. Ill.-Klinck v. Chicago City R. Co., 177 II. A. 165 [aff 262 Ill. 280, 104 NE 669, 52 LRANS 70, AnnCas1915B 177]. Iowa.-Whittlesey V. Burlington, etc., R. Co., 121 Iowa 597, 90 NW 516, 97 NW 66; Allison v. Chicago, etc., R. Co., 42 Iowa 274. Kan.-Union Pac. R. Co. v. Hand, 7 Kan. 380. Ky. Ohio Valley R. Co. v. Watson, 93 Ky. 654, 21 SW 244, 14 KyL 611, 40 AmSR 211, 19 LRA 310; Louisville, etc., R. Co. v. Fox, 11 Bush 495. Mich.-Laughlin v. Grand Rapids St. R. Co., 62 Mich. 220, 28 NW 873; Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537. Minn. Morse v. Minneapolis, etc., R. Co., 30 Minn. 465, 16 NW 358. Mo.-Sidekum v. Wabash, etc., R. Co., 93 Mo. 400, 6 SW 68, 3 AmSR 549; Hipsley v. Kansas City, etc., R. Co.. 88 Mo. 348. N. Y.-Reed v. New York Cent. R. Co., 45 N. Y. 574 [rev 56 Barb. 493]; Murphy v. New York Cent. R. Co., 66 Barb. 125. N. C.-Hedges v. Wilmington, etc., R. Co., 73 N. C. 558. Tenn.-Nashville, etc., R. Co. V. Johnson, 15 Lea 677. Tex.-Missouri Pac. R. Co. V. Mitchell, 75 Tex. 77, 12 SW 810; Missouri Pac. R. Co. v. Johnson, 72 Tex. 60 other than the time when and place where the accident occurred is generally inadmissible. And it has been held that evidence of the general bad condition of the road is not admissible even on the question of exemplary damages. Evidence as to the construction and maintenance of other roads is generally inadmissible to prove or disprove negligence in construction and maintenance at the place in question.62 A custom on the part of the carrier to keep its track in general good repair is not admissible to prove the good condition of the track.63 Negligence in operation of train. Evidence as to the condition of the track at places other than that of the accident may be admitted to show negligence on the part of the carrier in the operation of the train.6 64 Where condition of whole structure in issue. 95, 10 SW 325; Galveston, etc., R. Co. v. Goodwin, (Ćiv. A.) 26 SW 1007. [a] Thus, although defective rails or crossties one hundred feet from the place of the accident could not have caused it, still the evidence concerning the roadbed at such distance to some extent corroborates the statements of one party or the other as to the condition of the roadbed where the derailment occurred. Ohio Valley R. Co. v. Watson, 93 Ky. 654, 21 SW 244, 14 KyL 611, 40 AmSR 211, 19 LRA 310. [b] To show negligence in failing to repair, evidence as to the general condition of the track in the vicinity of the place of the accident, is admissible. Vicksburg, etc., R. Co. v. Putnam, 118 U. S. 545, 7 SCt 1. 30 L. ed. 257; Taylor, etc., R. Co. v. Taylor, 79 Tex. 104, 14 SW 918, 23 AmSR 316; Missouri Pac. R. Co. v. Collier, 62 Tex. 318; Texas, etc., R. Co. v. De Milley, 60 Tex. 194. [c] To show cause of derailment, (1) evidence as to the general bad condition of the track in the vicinity of the place of the accident is admissible. Vicksburg, etc., R. Co. v. Putnam, 118 U. S. 545, 7 SCt 1, 30 L. ed. 257; Union Pac. R. Co. v. Hand, 7 Kan. 380 (holding that, where it appeared that the track was in good condition where the car left it, and that the car ran some distance before turning over, evidence as to a defect anywhere which contributed to cause the turning over of the car was admissible); Ohio Valley R. Co. v. Watson, 93 Ky. 654, 21 SW 244, 14 KyL 611, 40 AmSR 211, 19 LRA 310 (holding that evidence concerning the unsafe condition of the roadbed near, as well as at, the place of an accident, which resulted from the derailment of a train alleged to have been caused by such defective roadbed, is competent where the evidence is conflicting as to the condition of the road at the point of the accident); Hedges v. Wilmington, etc., R. Co., 73 N. C. 558; Nashville, etc., R. Co. v. Johnson, 15 Lea (Tenn.) 677. (2) Where the evidence tends to show that the derailment of coach in which plaintiff was riding was caused by the breaking of a rail as the coach passed over it, and that this was caused by the defective condition of the rail and the crossties under it, it was competent for plaintiff to prove that other rails and crossties, at and near the place, were also old, worn, rotten, and decayed. Alabama Great Southern R. Co. v. Hill, 93 Ala. 514, 9 S 722, 30 AmSR 65. 60. D. C.-Chapman Tract. Co., 37 App. 479. the V. Capital Ky. Ohio Valley R. Co. v. Watson, 93 Ky. 654, 21 SW 244, 14 KyL 611, 40 AmSR 211. 19 LRA 310 (a mile distant); Louisville, etc., R. Co. v. Fox. 11 Bush 495. Mich.-Grand Rapids. etc., R. Co. v. Huntley. 38 Mich. 537. Minn. Morse v. Minneapolis, etc., Where, as in the case of a bridge, the condition of the structure as a whole is in issue, evidence is admissible as to the condition of portions of the structure other than that which gave way.65 Limitations as to time. As a general rule, evidence of defects in the means of transportation, such as the track or roadbed, must be limited to defects existing at the time of the accident.66 But where there is evidence showing that the condition of the track before and after the accident was substantially the same, evidence of its condition at such time is admissible to show its condition at the time of the accident, and to show knowledge on the part of defendant of the existence of such condition.68 R. Co., 30 Minn. 465, 16 NW 358. 67 Official reports. Reports of railroad officials prior to the accident are also admissible, against the company, to show the condition of the track at the fall of a bridge over which the train was passing, where the stability of the whole structure is involved in the charge of negligence alleged in the complaint, it is competent to give evidence of the condition, at the time of the accident, of portions of the bridge left standing, and not immediately involved in the wreck. Leonard v. Southern Pac. Co., 21 Or. 555, 28 P 887, 15 LRA 221. Wis.-Stewart v. Everts, 76 Wis. 35, 44 NW 1092, 20 AmSR 17. "The mere existence of other defects in other parts of the road is not evidence that a similar defect existed at the place of the casualty, and caused it. The only exceptions to this rule which now occur to us are where the other defects were shown to be the result of a cause presumptively operating at the place of the casualty, or where such other defects might have caused the defect which produced the injury." Morse v. Minneapolis, etc., R. Co., 30 Minn. 465, 467. [a] Where defendant has introduced such evidence.-If, in an action for injuries caused by the derailment of a train from the alleged defective condition of the track, evidence as to the condition of crossties one hundred feet distant from the place of derailment was incompetent, the railroad could not complain of its introduction by plaintiff after it had first offered testimony as to the condition of its roadbed at such points. Ohio Valley R. Co. v. Watson. 93 Ky. 654, 21 SW 244, 14 KyL 611, 40 AmSR 211, 19 LRA 310. 61. Missouri Pac. R. Co. V. Mitchell, 75 Tex. 77, 12 SW 810. 62. Bosqui v. Sutro R. Co., 131 Cal. 390, 63 P 682; Denver, etc., R. Co. v. Woodward, 4 Colo. 1; Weaver v. Baltimore, etc., R. Co., 3 App. (D. C.) 436; Joyce v. Metropolitan St. R. Co., 219 Mo. 344, 118 SW 21. [a] Bridge-In a damage suit against a railroad company, where the question arises as to whether a certain railroad bridge was of a safe width, the refusal of the trial court to admit testimony to show the usual width of bridges on another railroad is not error, especially where testimony is in showing the width of modern railroad bridges generally. Weaver v. Baltimore, etc., R. Co., 3 App. (D. C.) 436. 63. Ft. Worth, etc.. R. Co. V. Thompson, 2 Tex. Civ. A. 170, 21 SW 137. 64. Ill. Jacksonville Southeastern R. Co. v. Southworth, 135 Ill. 250, 25 NE 1093 [aff 32 Ill. A. 307]. Iowa. Fitch v. Mason City. etc., Tract. Co., 116 Iowa 716, 89 NW 33. Ky. Ohio, etc., R. Co. v. Beuris, 146 Ky. 612, 143 SW 16; Louisville, etc., R. Co. v. Hampton, 7 Ky. Op. 296. N. H. -Holyoke v. Grand Trunk R. Co., 48 N. H. 541. N. C.-Witsell v. West Asheville, etc., R. Co., 120 N. C. 557, 27 SE 125. Tex.-Missouri Pac. R. Co. v. Collier. 62 Tex. 318. 65. Leonard v. Southern Pac. Co., 21 Or. 555, 28 P 887, 15 LRA 221. [a] Illustration.-In an action for injuries received by a passenger in the wrecking of a train, caused by 66. Dak.-Pattee v. Chicago, etc., R. Co., 5 Dak. 267, 38 NW 435. Iowa.-Cronk v. Wabash R. Co., 123 Iowa 349, 98 NW 884. Mass.-Marshall v. Old Colony St. R. Co., 198 Mass. 18, 83 NE 860. Mich.-Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537. Mo.-Stoher v. St. Louis, etc., R. Co., 91 Mo. 509, 4 SW 389. Wis. Stewart v. Everts, 76 Wis. 35, 44 NW 1092, 20 AmSR 17. 67. Ark.-St. Louis, etc., R. Co. v. Thurman, 110 Ark. 188, 161 SW 1054 (five months afterward). Ill-Chicago, etc., R. Co. v. Lewis, 145 Ill. 67, 33 NE 960 [aff 48 Ill. A. 274]; Jacksonville Southeastern R. Co. v. Southworth, 135 Ill. 250, 25 NE 1093 [aff 32 Ill. A. 307]. Ind.-Pennsylvania Co. v. Marion, 104 Ind. 239, 3 NE 874; Ohio, etc., R. Co. v. Selby, 47 Ind. 471. Ky.-Ohio, etc., R. Co. v. Beuris, 146 Ky. 612, 143 SW 16. Mo.-Logan v. Metropolitan St. R. Co., 183 Mo. 582, 82 SW 126; Stoher v. St. Louis, etc., R. Co., 91 Mo. 509, 54 SW 389. N. Y.-Byrne v. Brooklyn City, etc., R. Co., 6 Misc. 260, 26 NYS 760 [aff 145 N. Y. 619 mem, 40 NE 163 mem]. Vt.-Parker v. Boston, etc., R. Co., 84 Vt. 329, 79 A 865 (just after the accident). Wis. Stewart v. Everts, 76 Wis. 35, 44 NW 1092, 20 AmSR 17. [a] Eight days afterward.—Where, in an action for injuries to a passenger on a street car, caused by an alleged defective switch, there was evidence that the switch was in the same condition at the time that it was examined by a witness, eight days after the accident, as it was at the time of the accident, his evidence as to its condition when he examined it was not objectionable as too remote. Logan v. Metropolitan St. R. Co., 183 Mo. 582, 82 SW 126. 68. Houston, etc., R. Co. v. Richards, 20 Tex. Civ. A. 203, 49 SW 687; Johnson V. Union Pac. R. Co., 35 Utah 285, 100 P 390. [a] Illustration.-The testimony of a section foreman in charge of the portion of the road where the accident occurred that he had been, for several days before the accident, engaged in repairing the road at that point, and that the speed limit of trains over that portion of the road was fifteen miles an hour, was admissible to show that the officers and agents of the carrier had had notice of the unsafe condition of the road, and that it was unsafe to operate 69 the time of the accident, as is also a report of the state railroad commissioners.70 Such reports must be distinguished from reports of the circumstances of the accident." [§ 1444] (8) Taking Up and Setting Down Passengers. Evidence as to the conditions and cir trains over it at a greater speed. Johnson v. Union Pac. R. Co., 35 Utah 285, 100 P 285. 69. Vicksburg, etc., R. Co. v. Putnam, 118 U. S. 545, 7 SCt 1, 30 L. ed. 257; Texas, etc., R. Co. v. Lester, 75 Tex. 56, 12 SW 955. [a] Report of trackwalker.-A report made by a trackwalker to his section boss, in accordance with his duty, and prior to the accident, as to the bad condition of the track, is admissible against the carrier. Texas, etc., R. Co. v. Lester, 75 Tex. 56, 12 SW 955. 70. Baruth v. Poughkeepsie City, etc., R. Co., 89 App. Div. 324, 85 NYS 822. [a] In New York the Railroad Law (L. [1890] p 1131 c 565 § 162, as amended by L. [1892] p 1416 c 676) providing that no examination, request, or advice of the board of commissioners shall impair in any manner or degree the legal rights, duties, or liabilities of a railroad corporation, does not operate to render inadmissible, in an action for injuries to a passenger, a communication to an electric railroad from the railroad commissioner, made after inspection about a year before the accident, recommending the adoption of certain safeguards at the place of the accident. Baruth v. Poughkeepsie City, etc., R. Co., 89 App. Div. 324, 85 NYS 822. 71. Carroll v. East Tennessee, etc., R. Co., 82 Ga. 452, 10 SE 163, 6 LRA 214. See also supra § 1437. 72. U. S.-Grady V. St. Louis Transit Co., 169 Fed. 400, 94 CCA 622. Ala.-Birmingham R., etc., Co. v. Barrett, 179 Ala. 274, 60 S 262; Louisville, etc., R. Co. v. Seale, 172 Ala. 480, 55 S 237. Ark.-St. Louis, etc., R. Co. V. Green, 110 Ark. 232, 161 SW 148. Cal.-Franklin v. Visalia Electric R. Co., 21 Cal. A. 270, 131 P 776. Ill. Chicago City R. Co. v. Bundy, 210 III. 39, 71 NE 28 [aff 109 III. A. 637]; Chicago, etc.. R. Co. v. Gore, 202 Ill. 188. 66 NE 1063, 95 AmSR 224; Chicago, etc., R. Co. v. Flaherty, 202 Ill. 151, 66 NE 1083 [aff 105 Ill. A. 14]. Mass.-Floytrup v. Boston, etc., R. Co., 163 Mass. 152, 39 NE 797; Dawson v. Boston, etc., R. Co., 156 Mass. 127, 30 NE 466. Mich. Sherwood v. Chicago, etc., R. Co., 88 Mich. 108, 50 NW 101. Mo.-Peterson v. Metropolitan St. R. Co., 211 Mo. 498, 11 SW 37. N. Y.-Lustig v. New York, etc., R. Co., 65 Hun 547, 20 NYS 477. R. I.-Moore v. Woonsocket St. R. Co., 27 R. I. 450, 63 A 313, 114 AmSR 59. Tex.-Mills V. Missouri, etc., R. Co., 94 Tex. 242, 59 SW 874, 55 LRA 497 [rev (Civ. A.) 57 SW 291]; Kansas City, etc., R. Co. v. Young, 50 Tex. Civ. A. 610, 111 SW 764; Missouri, etc., R. Co. v. Dunbar, 49 Tex. Civ. A. 12, 108 SW 500; International, etc., R. Co. v. Hugen, 45 Tex. Civ. A. 326, 100 SW 1000; Gulf, etc., R. Co. v. Coopwood, (Civ. A.) 96 SW 102; Long v. Red River, etc., R. Co., (Civ. A.) 85 SW 1048; International, etc., R. Co. v. Downing, 16 Tex. Civ. A. 643, 41 SW 190; International, etc., R. Co. v. Satterwhite, 15 Tex. Civ. A. 102, 38 SW 401. cumstances existing at the time and place a passenger was injured while alighting from or boarding a car or train is admissible on the question of the carrier's negligence in causing the injury,72 unless under the particular circumstances of the case it is incompetent, irrelevant, or immaterial.73 Thus [a] Illustrations.—(1) Where a passenger who had not procured a ticket sues for injuries sustained in attempting to board a moving train, he may state, in an action for his injuries, that, if the agent had been in the office when he applied for a ticket, he would have had time to catch the train before it moved, as bearing on the question whether he was denied an opportunity of getting a ticket. Mills v. Missouri, etc., R. Co., 94 Tex. 242, 59 SW 874, 55 LRA 497 [rev (Civ. A.) 57 SW 291]. (2) In an action for injuries to a passenger while attempting to alight, resulting from the stool on which he stepped turning over, evidence was admissible which tended to show that the stool was improperly constructed and as to the frequency with which such stools turned and caused passengers to fall. Missouri, etc., R. Co. v. Dunbar, 49 Tex. Civ. A. 12, 108 SW 500. (3) In an action by an alighting electric railroad passenger struck in the nighttime by an unlighted train running in the opposite direction, it was not error to receive testimony on the commonly known fact that trolley poles frequently become detached, and that lights in cars are thereby extinguished. Washington, etc., R. Co. v. Vaughan, 111 Va. 785, 69 SE 1035. (4) In an action for the death of a street car passenger permitted to alight at a dangerous place while intoxicated, proof of the conduct of decedent while a passenger on the car, including his attempt to alight therefrom, was admissible to show his condition and the trainmen's knowledge thereof, but evidence of the condition of the street where he attempted to alight, but was prevented by the trainmen, was inadmissible. Sullivan v. Seattle Electric Co., 51 Wash. 71, 97 P 1109, 130 AmSR 1082. [b] On the issue of willfulness or wantonness in the injury to plaintiff by the starting of defendant's street car, the evidence tending to show that plaintiff was in the act of boarding the car, that the motorman saw or could with diligence have seen him in such attempt when the car was started, and that the motorman was notified of plaintiff's physical infirmity and his consequent slowness of gait, and was requested by plaintiff's son not to start the car till plaintiff got on, testimony of the motorman that it was the motorman's duty to see that every one ready to get on the car got on before he started was admissible. Birmingham R., etc., Co. v. Lee, 153 Ala. 79, 45 S 292. [c] Municipal ordinances and regulations, (1) tending to show that the act of the carrier's employee complained of was required by competent authority, and SO was not in itself negligent, are admissible. Callahan v. Boston El. R. Co., 215 Mass. 171, 102 NE 330. (2) In an action by a female passenger for injuries received while alighting from a car, where there was evidence that the car stopped at the corner at which plaintiff had signaled it to stop, and that plaintiff fell from the car after it had started, a city ordinance providing that conductors or drivers shall not allow women or children to leave or enter street cars while in motion was properly admitted. Rapid Transit R. Co. V. Williams, (Tex. Civ. A.) 136 SW 267. (3) Where plaintiff claimed he was injured by the sudden starting of a street car after it had stopped to discharge passengers on the "near" crossing, while defendant claimed that it had only slackened speed before crossing an intersecting track and was proceeding to the "far" crossing in accordance with its rules when plaintiff endeavored to alight, the court did not err in admitting certain city ordinances requiring that at all points where street railroad tracks intersect or cross each other, the car should be stopped immediately before crossing the same so as to avoid danger or collision, and should be stopped to take or discharge passengers on the "far" side of the intersecting streets. Grady v. St. Louis Transit Co., 169 Fed. 400, 94 CCA 622. 73. Ala. Central of Georgia R. Iowa.-Merryman v. Chicago Great Mass.-Seale v. Boston El. R. Co., 214 Mass. 59, 100 NE 1020; Stevens v. Boston El. R. Co., 199 Mass. 471, 85 NE 571; Greer v. Union St. R. Co., 193 Mass. 246, 79 NE 267; Jacobs v. West End St. R. Co., 178 Mass. 116, 59 NE 639. Mich.-Formiller v. Detroit United R. Co., 164 Mich. 653, 130 NW 347. Minn.-Ahern v. Minneapolis St. Tex. San Antonio Tract. Va.-Washington, etc., R. Vaughan, 111 Va. 785, 69 SE 1035. Wash.-Woo Dan v. Seattle Electric R., etc., Co., 5 Wash. 466, 32 P 103. Wis. Grisim v. Milwaukee City R. V. [a] Illustrations.-(1) Evidence, on the issue as to how long a train stopped, of the details of a conversation held by a witness with another passenger who alighted and returned to the train is inadmissible. Central of Georgia R. Co. v. McNab, 150 Ala. 332, 43 S 222. (2) Where the negligence alleged was in starting the car with a jerk as plaintiff was getting on, and then suddenly stopping, it is error to permit the conductor to be asked on cross-examination how fast they ran when approaching the place where the passenger got on. Birmingham R., etc.. Co. v. Ellard, 135 Ala. 433, 33 S 276. (3) Where the evidence shows that the passenger fell from the steps of the car, and was in a position of danger if the train moved, and the brakeman admonished her to move at once, evidence whether he spoke in a pleasant or angry tone, or what his manner was is immaterial. Louisville, etc.. R. Co. v. Lee. 140 Ky. 91, 130 SW 813. (4) In an action for injuries while alighting, by the sudden starting of the train, evidence of a negligent failure properly to light the depot is inadmissible. Louisville. etc., R. Co. v. Payne, 133 Ky. 539, |