75 74 evidence may be admitted as to whether the place was a regular or usual stopping place; but it has been held that evidence of a custom of stopping or not stopping at a particular place is not admissible, unless it is shown that the passenger had knowledge of such custom." On the question of negligence in suddenly or prematurely starting a train or car, evidence is admissible as to the length of time the train or car stopped, and evidence by other passengers that they also attempted to alight or board at the same place, but that the car started 76 118 SW 352, 19 AnnCas 294. (5) In an action by an alighting passenger for injury to one struck in the nighttime by an electric car, involving an issue whether the car was lighted, it was not an abuse of discretion to exclude testimony showing that the lights were burning about fifteen minutes after the accident. Washington, etc., R. Co. v. Vaughan, 111 Va. 785, 69 SE 1035. (6) In an action to recover compensatory damages for personal injuries alleged to have been caused by the sudden starting of the car while plaintiff was alighting, evidence as to what occurred when plaintiff got on the car, tending to prove malice on the part of defendant's driver, is not admissible. Grisim v. Milwaukee City R. Co., 84 Wis. 19, 54 NW 104. [b] Promise to slow up.-Evidence that the engineer had promised the passenger to slow up to allow him to jump from the train is inadmissible, in the absence of proof that the engineer had authority to slow up trains for that purpose. Clark v. Atchison, etc., R. Co., 164 Cal. 363, 128 P 1032. [c] Evidence relative to the alighting or getting on of another passenger at another car or train, where the conditions do not appear to be the same, is not admissible. Central of Georgia R. Co. v. McNab, 150 Ala. 332, 43 S 222 (holding that, where in an action for injuries sustained in alighting from a train it appeared that plaintiff was a car length from the platform where another witness alighted, evidence as to the manner in which witness alighted and that the porter of the train helped and lifted her off while the train was in motion was inadmissible). [d] Evidence that some of the passengers alighted without accident is not admissible in an action against a carrier for negligent injury to an alighting passenger. Merryman V. Chicago Great Western R. Co., 135 Iowa 591, 113 NW 357. 74. Ala.-Birmingham R.. etc.. Co. v. Taylor, 152 Ala. 105, 44 S 580: Birmingham R.. etc., Co. V. Enslen, 144 Ala. 343, 39 S 74. Ga.-Savannah Electric Co. v. McElvey, 126 Ga. 491, 55 SE 192. Ill-Hanley v. Chicago City R. Co., 180 Ill. A. 397; Redin v. Alton, etc., Tract. Co., 173 Ill. A. 491. V. Ky. Central Kentucky Tract. Co. Chapman, 124 SW 830: Lexington R. Co. v. Herring, 96 SW 558, 29 KyL 794 [reh den 97 SW 1127, 30 KyL 269]. Mich. Chisholm v. Ann Arbor R. Co., 187 Mich. 214, 153 NW 818. Mo.-McGee V. Missouri Pac. R. Co., 92 Mo. 208, 4 SW 379, 1 AmSR 706. Nebr.-Inglehart v. Omaha, etc., R. Co., 95 Nebr. 442, 145 NW 850. N. Y.-Gleason v. Metropolitan St. R. Co., 99 App. Div. 209, 90 NYS 1025. R. I.-Moore v. Woonsocket St. R. Co., 27 R. I. 450. 63 A 313, 114 AmSR 59. Va.-Alexandria. etc., R. Co. V. Herndon, 87 Va. 193, 12 SE 289. [a] Illustrations.-(1) Where plaintiff alleges that her car stopped at a place where it was customary to stop to let off passengers, and that as she was attempting to alight the car suddenly started, whereby she was injured, it is proper to permit a witness to testify that cars usually stopped there to let off passengers. Birmingham R., etc., Co. v. Taylor, 152 Ala. 105, 44 S 580. (2) Where in an action for injuries to a street car passenger while attempting to board a car at a point other than that marked for the stopping of cars whether the car in fact stopped to permit plaintiff to get aboard is disputed, evidence that defendant's cars stopped at points on the line other than the place indicated by a sign in question is admissible. Lexington R. Co. v. Herring, 96 SW 558, 29 KyL 794 [reh den 97 SW 1127, 30 KyL 269]. (3) Where defendant introduces a plan showing the street where the accident occurred, with its intersecting streets, track location of "white poles," and various distances between "white poles," it is error for the court to exclude a question as to whether defendant had any established stopping places on that street, for the purpose of explaining the meaning of the "white poles" already shown to exist. Moore v. Woonsocket St. R. Co., 27 R. I. 450, 63 A 313, 114 AmSR 59. [b] A custom of alighting a short distance from the station with the consent of the carrier may be shown. Pickett v. Central of Georgia R. Co., 138 Ga. 177, 74 SE 1027, AnnCas1913 C 1380 and note. [c] Where people pass and repass. Evidence that the place where a passenger attempted to board the car was one where people were passing and repassing generally is not relevant to the issue whether it was one of the stopping places of the company's cars. Smith v. Birmingham R., etc., Co., (Ala.) 41 S 307. [d] Propriety and necessity of stopping.-Where, in an action for injuries to a street car passenger while attempting to board a car at a point other than that marked as a stopping place by a sign, plaintiff claimed that the car stopped to receive her as a passenger, which was denied, evidence concerning the propriety and necessity of stopping defendant's cars at regular stopping places indicated by signs is inadmissible. Lexington R. Co. v. Herring, 96 SW 558, 29 KyL 794 [reh den 97 SW 1127, 30 KyL 269]. 75. Greer v. Union St. R. Co., 193 Mass. 246, 79 NE 267; Margo v. Pennsylvania R. Co., 213 Pa. 463, 62 A 1079. vania R. Co., 213 Pa. 463, 62 A 1079. 76. Central of Georgia R. Co. v. McNab, 150 Ala. 332, 43 S 222; Killian v. Georgia R., etc., Co., 97 Ga. 727, 25 SE 384; Indianapolis Southern R. Co. v. Wall, 54 Ind. A. 43, 101 NE 680; Oliver v. Columbia, etc., R. Co., 65 S. C. 1, 43 SE 307. [a] Testimony of another passenger as to what he had time to do immediately on his getting off the train and before regaining the same, which was then moving off, was competent on the issue as to how long the train stopped. Central of Georgia R. Co. v. McNab, 150 Ala. 332, 43 S 222. [b] Evidence that the train was behind time is admissible on the question as to how long a train stopped at a given station, plaintiff contending that the stop was not sufficiently long to allow him time to alight safely from the train, and defendant insisting to the contrary. as tending to show the existence of a reason for making only a short stop, and therefore as supporting plaintiff's contention. Killian V. Georgia R., etc., Co., 97 Ga. 727, 25 SE 384. [c] Changing cars.—In an action for injury to a passenger while changing cars, the accommodations for passengers, the crowded condition of the cars, and the possibility of getting on another coach, may be shown in evidence to determine whether a reasonable time was given passengers, under the circumstances, to change cars. Oliver v. Columbia, etc., R. Co., 65 S. C. 1, 43 SE 307. v. 77. Franklin Visalia Electric R. Co., 21 Cal. A. 270, 131 P 776; Fults v. Metropolitan St. R. Co., 164 Mo. A. 101, 148 SW 210; San Antonio Tract. Co. v. Davis, (Tex. Civ. A.) 101 SW 554; Texas, etc., R. Co. v. Crockett, 27 Tex. Civ. A. 463. 66 SW 114. 78. Metropolitan R. Co. v. Jones, 1 App. (D. C.) 200. 79. Fuller v. Naugatuck R. Co., 21 Conn. 557; Mt. Adams, etc., Co. v. Isaacs, 18 Oh. Cir. Ct. 177, 10 Oh. Cir. Dec. 49. 80. Dilburn v. Louisville, etc., R. Co., 156 Ala. 228, 47 S 210; Nichols v. Dubuque, etc., R. Co., 68 Iowa 732, 28 NW 44; Peterson v. Metropolitan St. R. Co., 211 Mo. 498, 111 SW 37. [a] Illustrations.—(1) In an action against a railroad company for the death of a passenger killed while alighting from a train at his des'ination, plaintiff cannot show how long the train customarily stopped, since, if it stopped sufficiently long to enable plaintiff in his known condition to alight, any custom is immaterial. Dilburn v. Louisville, etc., R. Co., 156 Ala. 228, 47 S 210. (2) In an action for injuries sustained in attempting to board a street car, evidence by the conductor as to the "usual time" that cars stopped to discharge and receive passengers is inadmissible. Peterson v. Metropolitan St. R. Co.. 211 Mo. 498, 111 SW 37. [a] Thus, (1) in an action for injuries to a person while boarding a street car, evidence of a custom of defendant not to stop on other occasions was not admissible, on the theory that it showed an implied invitation to plaintiff to board the car while in motion, where plaintiff did not claim that he knew of such custom or that he found the car moving when he stepped on it. Greer v. Union St. R. Co., 193 Mass. 246, 79 NE 267. (2) An offer to show that the railroad company was accustomed to stop its train at the place [b] Knowledge from experience.of the accident, which was not a sta- In an action for personal injuries tion for general railroad purposes, incurred while alighting from a train and that when trains so stopped pas- suddenly starting to move from the sengers frequently got off and on. is station, it is not error to refuse to inadmissible, where there is no offer allow the question whether the witto show that deceased had knowledge ness knew from experience the usual of such custom. Margo v. Pennsyl-length of time a passenger train which caused the injury,81 as, where the injury was caused by a collision,82 or by sudden jerks or jolts, whether such jerks or jolts were of an unusual nature.83 stops at a station. Nichols v. Dubuque, etc., R. Co., 68 Iowa 732, 28 NW 44. 81. III.-Chicago, etc., R. Co. v. Newell, 212 Ill. 332, 72 NE 416 [app dism 198 U. S. 579 mem, 25 SCt 801 mem, 49 L. ed. 1171 mem]. Iowa.-Blumenthal v. Union Elec- Mich.-Richardson v. Detroit, etc., N. C.-Witsell v. West Asheville, etc., R. Co., 120 N. C. 557, 27 SE 125. Pa.-Philadelphia City Pass. R. Co. v. Hassard, 75 Pa. 367. R. I.-Carham v. Rhode Island Co., 85 A 1050. etc., R. Co., 28 Tex. Civ. A. 503, 67 SW 1085. [a] Illustrations.-(1) In an action against a street railroad for the death of a passenger who jumped from the car on seeing an apparent electrical disturbance in the forward end of the car, evidence that the conductor of the car became frightened, and jumped before deceased did, is competent to show negligence in operating the car with an incompetent conductor in charge of it. Blumenthal v. Union Electric Co., 129 Iowa 322, 105 NW 588. (2) In an action for injuries to a street car passenger by falling over another passenger's bag placed in the aisle, evidence that it was not customary to have racks for baggage or parcels in street cars, and that it was the custom to allow passengers to put hand baggage and dress suit cases on the floor, was admissible as bearing on the question whether defendant exercised due care in the premises. Pitcher v. Old Colony St. R. Co., 196 Mass. 69, 81 NE 876, 124 AmSR 513, 13 LRANS 481, 12 Ann Cas 886. [b] Evidence as to the condition of the track at the place of the accident, especially in connection with evidence of the speed of the train or car at that point, is admissible for the purpose of showing negligence in operating the train. See supra § 1443. 82. Ala.-Birmingham R., etc., Co. v. Rutledge, 142 Ala. 195, 39 S 338. Ill. Barnes v. Danville St. R., etc., Co., 235 111. 566, 85 NE 921, 126 Am SR 237; Chicago, etc., R. Co. v. Hardie, 85 Ill. A. 122. Iowa.-Parker v. Des Moines City R. Co., 153 Iowa 254, 133 NW 373, AnnCas1913E 174; Mitchell v. Chicago, etc., R. Co., 138 Iowa 283, 114 NW 622; Larkin v. Chicago, etc., R. Co., 118 Iowa 652, 92 NW 891. Mich.-Van Orman v. Lake Shore, etc., R. Co., 152 Mich. 185, 115 NW 968. Mo.-Olsen v. Citizens' R. Co., 152 Mo. 426, 54 SW 470. N. Y.-Loudoun v. Eighth Ave. R. Co., 162 N. Y. 380, 56 NE 988 [rev 16 App. Div. 152, 44 NYS 742]. Pa. Fane V. Philadelphia Rapid Transit Co., 228 Pa. 471, 77 A 806. R. I.-Fagan v. Rhode Island Co., 27 R. I. 51, 60 A 672. S. D.-Reeves v. Chicago, etc., R. Co., 24 S. D. 84, 123 NW 498. Va.-Washington, etc., R. Co. Trimyer, 110 Va. 856, 67 SE 531. V. Wash.-Harris V. Puget Sound Electric R. Co., 52 Wash. 289, 100 P 838. [a] Evidence held inadmissible. (1) Where, in an action for injuries to a passenger on a street car by a Rate of speed. As bearing on the carrier's negligence evidence may be admitted as to the rate of speed at which the car or train was running at the time and place of the accident,s unless the collision with a railroad train at a crossing, the conductor who went ahead and signaled the car to cross testified that he saw the train when two blocks away, and did not realize there was any danger until it was within one hundred feet of the crossing, and fixed the location of the train at each of the periods he observed it, without basing his judgment in any way on its apparent speed, or any speed that he previously had knowledge of, a city ordinance regulating the rate of speed of trains at that point was immaterial. Chicago City R. Co. v. Shaw, 220 II. 532, 77 NE 139. (2) In an action for injuries to a passenger owing to a collision between an electric car and a vehicle which turned off a road on to the track, evidence whether the track was wet or dry on the night in question, and testimony as to how far witness could see on such a night, and within what distance a car could be stopped at the place where the accident occurred, was inapplicable, in the absence of any evidence that the vehicle was on the track until the instant of the collision. Fagan v. Rhode Island Co., 27 R. I. 51, 60 A 672. (3) In an action for injuries to a passenger by a collision between two parts of a train which had broken in two, questions asked of the engineer and fireman as to whether there was anything different or unusual in the manner in which they operated the train at the time were immaterial. Reeves v. Chicago, etc., R. Co., 24 S. D. 84, 123 NW 498. [b] An ordinance (1) requiring watchman to be kept at all railroad crossings, to perform such duties as may be prescribed by ordinance, is inadmissible, in an action by a street railroad passenger for injuries in a collision between the street car and a railroad train, in the absence of evidence of ordinances prescribing such duties, since the court could not, as a matter of law, assume that the duties were such as are usually rendered in such cases by watchmen. Wills v. Atchison, etc., R. Co., 133 Mo. A. 625, 113 SW 713. (2) In an action to recover for injuries to a passenger in a car struck at a street crossing by a fire engine, an ordinance giving engines a right of way on street railroad tracks is irrelevant. Fane v. Philadelphia Rapid Transit Co., 228 Pa. 471, 77 A 806. [c] The number of persons killed in a collision may be shown to show its severity. Estes v. Missouri Pac. R. Co., 110 Mo. A. 725, 85 SW 627. [d] The fact that one of the cars was first on the crossing is not conclusive proof that such car had the right of way, but, in the absence of evidence as to the relative position and speed of the two cars as they approached the crossing, it constituted evidence from which the jury might have inferred that the car first on the crossing was entitled to precedence; and that the car first on the crossing was nearly over when struck is admissible to throw light on the relative position of the cars. Loudoun v. Eighth Ave. R. Co., 162 N. Y. 380, 56 NE 988 [rev 16 App. Div. 152, 44 NYS 742]. [e] A contract between a street car company and a railroad company, as to the stopping of trains on approaching a crossing, is admissible in an action against the street car company for injuries to a passenger by a collision between a car and a locomotive on the steam railroad at a crossing, on the question of whose negligence was the proximate cause of the accident. Washington, etc., R. Co. v. Trimyer, 110 Va. 856, 67 SE 531. [f] Collision with fire wagon.-In an action by a street car passenger 84 for injuries caused by a collision with a hook and ladder wagon, evidence as to how far a gong on the wagon could be heard is admissible, where defendant claims that the collision was caused by the gripman's failure to hear any gong, and there was evidence that the gong sounded. Olsen v. Citizens' R. Co., 152 Mo. 426, 54 SW 470. was 83. Southern R. Co. v. Branyon, 145 Ala. 662, 39 S 675; Chicago, etc., R. Co. v. Rowell, 151 Ky. 313, 151 SW 950; Nolan v. Newton St. R. Co., 206 Mass. 384, 92 NE 505; Ft. Worth, etc., R. Co. v. White, (Tex. Civ. A.) 51 SW 855. [a] Illustrations.-(1) In an action for injuries caused plaintiff by the sudden jolt or jar of a train in stopping, evidence by other passengers that there was no such jolt or jar as would throw a person about in a seat is admissible. Chicago, etc., R. Co. v. Rowell, 151 Ky. 313, 151 SW 950. (2) In an action against a street railroad company for injury to a passenger, plaintiff's testimony that the car started so suddenly and with such extraordinary movement that it seemed as if it were going to stand upright was properly received to show the force which caused her injury, the testimony not being inadmissible as tending to mislead the jury. Nolan v. Newton St. R. Co.. 206 Mass. 384, 92 NE 505. (3) Where, in an action for injuries received by a passenger in consequence of the sudden jerking of the train, the evidence shows that there were only two persons in the car, that both of them were thrown down and one of them injured, and a witness testifies that there was no unusual jerk, it is not error to overrule an objection to the question asked the witness as to whether he would consider a movement of a car such as to throw all the passengers down and injure one of them a usual movement thereof. Southern R. Co. V. Branyon, 145 Ala. 662, 39 S 675. 84. Ala.-Birmingham R., etc., Co. v. Landrum, 153 Ala. 192, 45 S 198, 127 AmSR 25. Ill. Elgin, etc., Tract. Co. v. Wilson, 120 Ill. A. 371 [aff 217 Ill. 47, 75 NE 436]. Ind. Louisville, etc.. R. Co. V. Jones, 108 Ind. 551, 9 NE 476. Mich. Keating v. Detroit, etc., R. Co., 104 Mich. 418, 62 NW 575. N. Y.-Saffer v. Dry Dock, etc., R. Co., 2 Silv. Sup. 343, 5 NYS 700. Wash.-Johnstone R., Tex.-Texas, etc., R. Co. v. Clippenger, 47 Tex. 510, 106 SW 155. Va.-Norfolk, etc., R. Co. v. Ferguson, 79 Va. 241. V. Seattle etc., Co., 45 Wash. 154, 87 P 1125. [a] But the mere speed of a train, or the fact that it was behind time when the accident to a passenger occurred, is not evidence of the negligence of the employees having it in charge. Norfolk, etc., R. Co. v. Ferguson, 79 Va. 241. [b] Evidence of the condition of the cars immediately after a collision, and the efforts required to separate them, is admissible as tending to show the force of the collision and bearing on the rate of speed. Elgin, etc.. Tract. Co. v. Wilson. 120 Ill. A. 371 [aff 217 Ill. 47, 75 NE 436]. [c] Speed at other points.-(1) Where negligence is charged against a railroad company in the running of a train at a high and dangerous rate of speed, witnesses who saw the train at a point one and a half miles from the place where the accident occurred may, where it is shown by others that the rate of speed continued the same, state the rate at the point where they observed the train. Louisville, etc.. R. Co. V. Jones, 108 Ind. 551, 9 NE 476. (2) In an action for injuries to a pas negligence charged is such that the speed of the train or car has no bearing on it.85 Such evidence should be based on some standard of rapidity, and show, at least approximately, the actual rate of speed, and that it was unsafe.86 Thus, on the issue of such speed, the manner in which the passenger sustained his injury, together with other testimony, may be shown,87 as may also the facts that the train or car was behind time,88 that it lurched and the passengers were bumped about,89 that it was being operated in violation of an ordinance as to rate of speed,90 or in violation of a rule of the carrier91 or senger on a street car, caused by a collision with another car at a crossing, plaintiff may testify as to the speed of defendant's car when near the crossing. Wilson v. Broadway, etc., R. Co., 8 Misc. 450, 28 NYS 781. (3) But evidence that the engineer had been warned, at a station where the train stopped before the accident, as to the reckless running of the train over the rough road, is improper where the rate of speed before reaching the neighborhood of the accident is not in issue. San Antonio, etc., R. Co. v. Robinson, 73 Tex. 277. 11 SW 327. [d] Testimony as to the cost of rolling stock is irrelevant to the question of negligence in running passenger trains at a high rate of speed. Grand Rapids, etc., R. Co. v. Huntley. 38 Mich. 537. 85. Elgin, etc., Tract. Co. v. Hench, 132 Ill. A. 535. [a] An ordinance limiting the speed of running cars over a bridge is incompetent, in an action by a passenger against a carrier to recover for injuries caused by the breaking down of the bridge, where there was no negligence charged based on the speed of the car. Elgin, etc., Tract. Co. v. Hench, 132 Ill. A. 535. 86. Chicago, etc., R. Co. v. Newell, 212 III. 332, 72 NE 416 [app dism 198 U. S. 579 mem, 25 SCt 801 mem, 49 L. ed. 1171 mem]; Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537. SO [a] Evidence held inadmissible.Where a railroad train was crowded that certain passengers could not conveniently obtain seats or standing room inside the cars, and when the train rounded a curve at the rate of twenty-five or thirty miles an hour a passenger was thrown from a platform and injured, in an action for the injuries it was proper to sustain an objection to a question to a witness as an expert as to whether trains could be operated over the tracks where the accident happened, with safety, at such speed, the question being immaterial under the facts. Chicago, etc., R. Co. v. Newell, 212 Ill. 332. 72 NE 416 [app dism 198 U. S. 579 mem. 25 SCt 801 mem. 49 L. ed. 1171 mem]. 87. Carter v. Seaboard Air Line R. Co., 165 N. C. 244, 81 SE 321. 88. St. Louis, etc., R. Co. v. Savage. 163 Ala. 55, 50 S 113 (to show that it was running at an unusual and immoderate rate of speed). But see supra note 84 [a]. 89. Alton Light, etc., Co. v. Oller. 119 III. A. 181 [aff 217 Ill. 15, 75 NE 419. 4 LRA 399]. 90. Stadler v. Pacific Electric R. Co., 23 Cal. A. 571, 138 P 943: Bragg v. Metropolitan St. R. Co., 192 Mo. 331, 91 SW 527; Moore v. Northern Texas Tract. Co., 41 Tex. Civ. A. 583, 95 SW 652; San Antonio Tract. Co. v. Bryant, 30 Tex. Civ. A. 437, 70 SW 1015. of an order of the railroad commissioners,92 and whether or not it was running at the usual speed.93 94 [§ 1446] (10) Other or Similar Acts and Accidents. As a general rule, evidence of the conditions existing at other times and places, or of other accidents or acts of negligence on the part of the carrier or its employees, is not admissible to show independent acts of negligence, and likewise evidence that accidents had not happened under similar conditions at other times or places is not admissible to disprove negligence at the time and place in question.95 But where such evidence is Kansas City, etc., R. Co.. 88 Mo. 348; Baker v. Metropolitan St. R. Co.,, 181 Mo. A. 392. 168 SW 842; Hayes v. St. Louis R. Co.. 15 Mo. A. 584. sume that the approaching train was | [b] Repealed ordinance.-Where, [a] Prior rules.-If plaintiff 92. Van Orman V. Lake Shore. etc., R. Co., 152 Mich. 185, 115 NW 968. [a] Order held inadmissible.Where, in an action against two intersecting railroads for injuries to a passenger from a collision, the testimony shows conclusively that neither road regarded an order of the railroad commissioner fixing the speed at which the interlocker might be crossed. that the order was ignored by general custom, and that the engineer of the road seeking the introduction of the order knew of the custom, a refusal to admit the order is not error. Van Orman v. Lake Shore, etc., R. Co., 152 Mich. 185, 115 NW 968. 93. Worthen v. Grand Trunk R. Co.. 125 Mass. 99. 94. U. S.-Peck v. Neil, 19 F. Cas. Ala.-Central of Georgia R. Co. v. Colo.-Denver City Tramway Co. v. Conn.-Moffitt v. Connecticut Co., Ga.-Binder v. Georgia R., etc., Co., 13 Ga. A. 381. 79 SE 216; Georgia R., etc., Co. v. Baker, 1 Ga. A. 832, 58 SE 88. Ill. Hartford Deposit Co. v. Sol- Ky. Chesapeake, etc.. R. Co. V. Md. Baltimore, etc., Turnp. Road Miss.-Southern R. Co. V. Ken- Mo.-Woas V. St. Louis Transit 90. Mont.-Higley v. Gilmer, 3 Mont. N. Y.-Merrill v. Metropolitan St. R. Co., 73 App. Div. 401, 77 NYS 122; Schmidt v. Coney Island, etc.. R. Co., 26 App. Div. 391, 49 NYS 777; Miller v. International R. Co., 52 Misc. 344. 102 NYS 254; Buck v. Manhattan R. Co., 15 Daly 550, 10 NYS 107 [aff 134 N. Y. 589 mem, 31 NE 628 mem]. N. C.-Overcash v. Charlotte Electric R., etc.. Co., 144 N. C. 572, 57 SE 377, 12 AnnCas 1040. Or.-Graham v. Corvallis, etc., R. Co., 71 Or. 477, 142 P 774; Davis v. Oregon, etc., R. Co., 8 Or. 172. Pa.-Williams v. Pittsburg R. Co.. 50 Pa. Super. 473. R. I.-Agulino v. New York, etc., R. Co., 21 R. I. 263, 43 A 63. Tex.-Missouri Pac. R. Co. V. Mitchell, 75 Tex. 77, 12 SW 810; Houston Electric Co. v. Park, (Civ. A.) 135 SW 229; Missouri, etc., R. Co. v. Dunbar, 49 Tex. Civ. A. 12, 108 SW 500; Galveston, etc., R. Co. v. Walker, (Civ. A.) 48 SW 767. Vt.-Clark v. Smith, 72 Vt. 138, 47 A 391. Wis. Spencer v. Chicago, etc., R. Co., 105 Wis. 311, 81 NW 407. See also generally Negligence [29 Cyc 611]. [a] Thus (1) in an action for injuries sustained by a passenger by the starting of the train while alighting therefrom, evidence that on another occasion the train started while another passenger was attempting to alight is irrelevant, and it cannot be assumed that its admission was harmless. Gulf, etc., R. Co. v. Rowland, 82 Tex. 166, 18 SW 96. (2) In an action against a street railroad for injuries received by a passenger from a derailment of defendant's car, evidence that other cars ran off the track at the place of the derailment was inadmissible, without proof that the track was in the same condition as at the time when the accident in question occurred. Overcash v. Charlotte Electric R., etc., Co., 144 N. C. 572, 57 SE 377, 12 AnnCas 1040. (3) The fact that a car jumped a switch on being replaced after its derailment at the switch, injuring a passenger, is inadmissible as evidence of an admission by the carrier that the passenger had been injured through its negligence. Carroll V. Boston El. R. Co., 200 Mass. 527. 86 NE 793. [b] Elevators.-(1) Evidence as to the operation of other elevators is properly excluded in an action for injuries sustained while a passenger on an elevator. Hartford Deposit Co. v. Sollitt, 172 II. 222, 50 NE 178. 64 AmSR 35 [aff 70 Ill. A. 166]. Evidence of the common practice of elevator operators to start the elevator before closing the door is not admissible to show that the practice was not negligent. Gilpatrick V. Cotting. 214 Mass. 426, 101 NE 993. (2) 95. Ala.-Mobile Light, etc., Co. v. Walsh, 146 Ala. 295, 40 S 560. Colo.-Denver City Tramway Co. v. Hills, 50 Colo. 328, 116 P 125, 36 LRANS 213. Ill-Schindler v. Illinois Cent. R. confined to similar accidents or acts of négligence, at or near the place in question, it may be admitted as bearing on the conditions that probably existed at the time and place of the accident.96 Thus such evidence may be admitted to show a previous and Co., 178 Ill. 239; Joliet St. R. Co. v. Call, 42 Ill. A. 41. Ind.-Union Tract. Co. v. Sullivan, 38 Ind. A. 513, 76 NE 116. Iowa.-Meloy v. Chicago, etc., R. Co., 37 NW 335. Mass.-Peverly Mass. 366. V. Boston, 136 Mo.-Newcomb v. New York Cent., etc., R. Co., 182 Mo. 687, 81 SW 1069. Oh.-Cleveland, etc., R. Co. v. Anderson, 21 Oh. Cir. Ct. 288, 11 Oh. Cir. Dec. 765. Vt.-Sullivan V. Delaware, etc., Canal Co., 72 Vt. 353, 47 A 1084. See also generally Negligence [29 Cyc 614]. [a] Evidence that no similar accident had ever occurred before (1) is inadmissible to show absence of negligence at the place and time in question. Denver City Tramway Co. v. Hills, 50 Colo. 328, 116 P 125, 36 LRANS 213; Union Tract. Co. v. Sullivan, 38 Ind. A. 513, 76 NE 116. (2) But, where a passenger in entering a crowded street car is struck by a brake handle which was whirled around by the brake becoming unfastened, it is proper to receive testimony that a witness, in a position to know, had never heard of a like accident, since a passenger carrier is not obliged to foresee and provide against casualties unknown and not reasonably to be expected, and his liability is not to be ascertained by what appears for the first time after the disaster to be a proper precaution against its Occurrence. Holt V. Southwest Missouri Electric R. Co., 84 Mo. A. 443. (3) In an action to recover for injuries received in alighting from a train at a station, on the ground of negligence in not providing reasonably safe accommodations, it is error where the danger was not obvious, to exclude testimony that in the use for,a long time in the same condition no similar accident had happened. Cleveland, etc., R. Co. v. Anderson, 21 Oh. Cir. Ct. 288, 11 Oh. Cir. Dec. 765. [b] Others not injured.-(1) Where plaintiff, after leaving defendant's train, stumbles on a bolt while passing through the exit turnstile, it is immaterial, in determining defendant's liability, that thousands of people had passed through without stumbling. Schindler V. Illinois Cent. R. Co., 178 Ill. A. 239. (2) In an action against a railroad company for injuries to a passenger from slipping on a station platform, evidence that shortly after the accident great crowds arrived at and departed from the station without accident was properly excluded. Newcomb v. New York Cent.. etc., R. Co., 182 Mo. 687, 81 SW 1069. 96. Ala.-Birmingham R.. etc.. Co. v. Friedman, 187 Ala. 562, 65 S 939. Call, 42 Selby, 47 Ill-Joliet St. R. Co. v. Ill. A. 41. Ind.-Ohio, etc., R. Co. v. Ind. 471. Md.-Baltimore, etc.. R. Co. Rudy, 118 Md. 42, 84 A 241. V. Mich. Ashton v. Detroit City R. Co.. 78 Mich. 587, 44 NW 141. Minn.-Clapp v. Minneapolis, etc.. R. Co., 36 Minn. 6, 29 NW 340, 1 AmSR 629. N. Y.-Buck v. Manhattan R. Co.. 15 Daly 550, 10 NYS 107 [aff 134 N. Y. 589 mem, 31 NE 628 mem]; Reichman v. Second Ave. R. Co., 1 NYS 836. S. C.-Nickles v. Seaboard Air Line R. Co., 74 S. C. 102, 54 SE 255. Tex.-Trinity, etc., R. Co. v. Carpenter, (Civ. A.) 132 SW 837; Missouri, etc., R. Co. v. Dunbar, 57 Tex, Civ. A. 411. 122 SW 574. Va.-Washington, etc.. R. Co. V. Trimyer, 110 Va. 856, 67 SE 531. Eng.-Manning v. London, etc., R. Co., 23 T. L. R. 222. See also generally Negligence [29 Cyc 611]. 1097 mem]. [b] Derailments.-(1) In an action by a passenger against a railroad company for injuries caused by the derailment of its train, evidence that the train on which the accident occurred, and of which witness was a conductor, had run off the track seven or eight times, within a month before the accident, was admissible. Mobile, etc., R. Co. v. Ashcraft, 48 Ala. 15, 49 Ala. 305, 307 (where the court in the last opinion stated: "There is no better evidence of carelessness or negligence than the freof the accidents"). (2) Where the derailment was caused by a rail breaking, evidence that another rail broke at the same place on the same day, but at a different time, was admissible. Cleveland, etc., R. Co. v. Newell, 104 Ind. 264, 3 NE 836. [a] Illustrations.—(1) In an action for injuries received in an accident caused by a broken switch rail, evidence that engines had previously run off the track at the same place, both before and after the time in question, is admissible when it is shown that at the time such accidents occurred the switch was in substantially the same condition as respects the particular defects complained of. Clapp v. Minneapolis,quency etc., R. Co., 36 Minn. 6, 29 NW 340, 1 AmSR 629. (2) In an action by a street car passenger for injuries caused by careless driving, evidence of careless and reckless driving at other places during the same trip was admissible. Reichman v. Second Ave. R. Co., 1 NYS 836. (3) Where it was alleged that plaintiff's injuries were occasioned by the footboard of the carriage from which he was alighting being at an unreasonable height above the platform, evidence that the platforms at a large number of the company's other stations in the district were as low as the one in question, and that no accident had happened, was admissible. Manning v. London, etc., R. Co., 23 T. L. R. 222. 97. Ala.-Birmingham R.. etc., Co. v. Bynum, 139 Ala. 389, 36 S 736. Colo.-Denver City Tramway Co. v. Cowan, 51 Colo. 64, 116 P 136. Ga.-Central R., etc., Co. v. Smith, 80 Ga. 526, 5 SE 772. Ind.-Cleveland, etc., R. Co. V. Newell, 104 Ind. 264, 3 NE 836 [app dism 198 U. S. 579 mem, 25 SCt 801 mem, 49 L. ed. 1171 mem]. Iowa.-Whittlesey V. Burlington, etc., R. Co., 121 Iowa 597, 90 NW 516, 97 NW 66. Kan. Missouri Pac. R. Co. V. Neiswanger, 41 Kan. 621, 21 P 582, 13 AmSR 304. Mass.-O'Day v. Boston El. R. Co., 218 Mass. 515, 106 NE 144. Minn. Morse v. Minneapolis, etc., R. Co., 30 Minn. 465, 16 NW 358. Miss.-Hill v. Jackson Light, etc., Co., 110 Miss. 388, 70 S 401. 90. Mont.-Higley v. Gilmer, 3 Mont. N. H.-Bullard v. Boston, etc., R. Co., 64 N. H. 27, 5 A 838, 10 AmSR 367. N. J.-Exton v. New Jersey Central R. Co., 63 N. J. L. 356, 46 A 1099, 56 LRA 508 [aff 62 N. J. L. 7, 42 A 486]. N. Y.-Rogers v. New York, etc., Bridge, 11 App. Div. 141, 42 NYS 1046 [aff 159 N. Y. 556 mem, 54 NE 1094 mem]; Wilder v. Metropolitan St. R. Co., 10 App. Div. 364, 41 NYS 931 [aff 161 N. Y. 665 mem, 57 NE 1128 mem]; Hanrahan v. Manhattan R. Co., 53 Hun 420, 6 NYS 395 [aff 130 N. Y. 658 mem, 29 NE 1033 mem]; Chase v. Jamestown St. R. Co., 15 NYS 35. Oh.-Brooklyn St. R. Co. v. Kelley, 6 Oh. Cir. Ct. 155, 3 Oh. Cir. Dec. 393 [aff 53 Oh. St. 646 mem, 44 NE 1148 mem]. Tenn.-Nashville R. Co. v. Howard, 112 Tenn. 107, 78 SW 1098, 64 LRA 437; Nashville, etc., R. Co. v. Johnson, 15 Lea 677. Tex.-Dallas Cons. Electric St. R. Co. v. Broadhurst, 28 Tex. Civ. A. 630, 68 SW 315. See also generally Negligence [29 Cyc 611]. [a] Precautions taken at other stations and on other roads to prevent passengers being forced against and between moving cars may be shown. Reschke v. Syracuse, etc.. R. Co.. 155 App. Div. 48, 139 NYS 555 [aff 211 N. Y. 602 mem, 105 NE [c] Subsequent experiments.—(1) Where the point in issue is whether a car moving slowly down an incline with brakes set would, when the brakes were suddenly loosed, jump or spring forward, it is error to exclude evidence of the result of an experiment made at the same place and under the same conditions. Chicago, etc., R. Co. V. Champion, (Ind.) 32 NE 874. (2) Evidence of the result of an experiment, as to the way in which a,person placed on the car step as plaintiff testified he was standing when thrown from the cars would fall, was held admissible. Gilbert V. Third Ave. R. Co., 54 N. Y. Super. 270. 98. U. S.-Oregon Co. v. Roe, 176 Fed. 715, 100 CCA 269. Colo.-Denver City Tramway Co. v. Cowan, 51 Colo. 64, 116 P 136. Ga.-Central R., etc., Co. v. Smith, 80 Ga. 526, 5 SE 772. Ill.-East St. Louis, etc., R. Co. v. Zink, 229 Ill. 180, 82 NE 283 [aff 133 Ill. A. 127]. Mass.-Glennen v. Boston El. R. Co., 207 Mass. 497, 93 NE 700, 32 LRANS 470. N. H.-Fisher v. Boston, etc., R. Co., 75 N. H. 184, 72 A 212. N. Y.- -Hanrahan v. Manhattan R. Co., 53 Hun 420, 6 NYS 395 [aff 130 N. Y. 658 mem, 29 NE 1033 mem]: Brady v. Manhattan R. Co., 15 Daly 272, 6 NYS 533 [rev on other grounds 127 N. Y. 46, 27 NE 368]; Holzhauser v. Brooklyn Heights R. Co., 43 Misc. 145, 88 NYS 269. Oh.-Brooklyn St. R. Co. v. Kelley, 6 Oh. Cir. Ct. 155, 3 Oh. Cir. Dec. 393 [aff 53 Oh. St. 646 mem, 44 NE 1148 mem]. R. I.-Nelson v. Union R. Co., 26 R. I. 251, 58 A 780. Tex.-Dallas Cons. Electric St. R. Co. v. Broadhurst. 28 Tex. Civ. A. 630, 68 SW 315; Houston, etc., R. Co. v. Richards, 20 Tex. Civ. A. 203, 49 SW 687. [a] Evidence of accidents at a different place but under similar circumstances has been held admissible. Hanrahan v. Manhattan R. Co., 53 Hun 420, 6 NYS 395 [aff 130 N. Y. 658 mem, 29 NE 1033 mem]; Houston, etc., R. Co. v. Richards, 20 Tex. Civ. A. 203, 49 SW 687 (holding that, to show a carrier's knowledge of the defective condition of a switch which caused a wreck, evidence that other switches on the track in similar condition had caused wrecks is admissible). [b] Must be prior accidents.When the purpose of such evidence is to show notice to the carrier of the defects. it must be confined to accidents prior to the date of plaintiff's injury. Johnson v. Manhattan R. Co., 52 Hun 111, 4 NYS 848. 99. Denver City Tramway Co. v. Cowan, 51 Colo. 64, 116 P 136. dents is also admissible to rebut the carrier's evidence that it had carried a great many passengers without accident.1 Evidence as to the effect of the accident on other passengers is not admissible,2 unless the conditions surrounding the different passengers are shown to have been the same.3 5 2. Cote v. Grand Trunk R. Co., 70 N. H. 620, 49 A 567; Abel v. Northampton Tract. Co., 212 Pa. 329, 61 A 915; International, etc., R. Co. v. Johnson, 43 Tex. Civ. A. 147, 95 SW 595. 3. Baldwin v. People's R. Co., 23 Del. 81, 76 A 1088; West Chicago St. R. Co. v. Kennedy, 170 Ill. 508, 48 NE 996 [aff 66 Ill. A. 244]; Mullin v. Boston El. R. Co., 185 Mass. 522, 70 NE 1021; Missouri, etc., R. Co. v. Wright, 19 Tex. Civ. A. 47, 47 SW 56. the accident, or to show defendant's control over the place where the accident occurred. The true and proper ground for its exclusion is stated to be because it would be unjust that defendant should not take additional precautions against the recurrence of an accident without the risk of admitting previous negligence.9 [§ 1448] (12) Custom or Course of Business.10 Where, in the absence of any question of evil intent or of any intent at all, the point of fact to be determined is whether or not the passenger or the carrier did a certain thing or did it in a particular way, and the direct testimony as to the fact is conflicting, evidence is admissible to show that the one or the other was in the habit of doing the thing in question, or accustomed to do it in a particular way." The direct evidence as to the fact 11 [ 1447] (11) Subsequent Repairs and Precautions. According to some decisions, evidence of repairs or alterations made, or additional precautions taken, after an accident has occurred, is admissible as tending to show prior negligence as to the conditions existing at the time and place of the accident. But by the weight of authority such evidence is held inadmissible for that purpose, although it is admissible for the purpose of showing the condition of things at the time and place of 1. Illinois Cent. R. Co. v. Treat, circumstances as to indicate that 179 Ill. 576, 54 NE 290 [aff 75 Ill. A. they were suggested by it and made 327]. to remedy the defect which caused it. Kelly v. Southern Minnesota R. Co., 28 Minn. 98, 9 NW 588; Phelps v. Mankato, 23 Minn. 276; O'Leary v. Mankato, 21 Minn. 65. (2) But in Morse v. Minneapolis, etc., R. Co., 30 Minn. 465, 468, 16 NW 358, although the decision of the question was not directly involved, the couurt said: "But, on mature reflection, we have concluded that evidence of this kind ought not to be admitted under any circumstances, and that the rule heretofore adopted by this court is on principle wrong; not for the reason given by some courts, that the acts of the employes in making such repairs are not admissible against their principals. but upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so, and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think that such a rule puts an unfair interpretation upon human conduct. and virtually holds out an inducement for continued negligence." [a] Thus, (1) where witness was a passenger in the same car in which deceased was riding at the time she received the injuries from which she died, evidence that witness was suddenly thrown from the car at the same time deceased was also thrown off was admissible. Baldwin v. People's R. Co., 23 Del. 81, 76 A 1088. (2) In an action by a street car passenger for injuries in a collision, evidence as to whether other passengers were injured was competent, as tending to establish the force of the impact, which bore on the question of the motorman's negligence. Mullin v. Boston El. R. Co., 185 Mass. 522, 70 NE 1021. 4. See also generally Negligence [29 Cyc 616]. 5. Augusta, etc., R. Co. v. Renz, 55 Ga. 126; Pennsylvania R. Co. v. Henderson, 51 Pa. 315. 6. U. S.- -Southern Pac. Co. V. Hall, 100 Fed. 760, 41 CCA 50; Carter v. Kansas City Cable R. Co., 42 Fed. 37. Ark.-St. Louis, etc.. R. Co. V. Evans, 99 Ark. 69, 137 SW 568. Colo.-Kansas Pac. R. Co. v. Miller, 2 Colo. 442. Me.-Carleton v. Rockland, etc.. R. Co., 110 Me. 397, 86 A 334, AnnCas 1915A 1209. Mass.-Anshen v. Boston El. R. Co., 205 Mass. 32, 91 NE 157. Mich.-Noble v. St. Joseph, etc., R. Co., 98 Mich. 249, 57 NW 126. Minn. Morse v. Minneapolis, etc.. R. Co., 30 Minn. 465, 16 NW 358. See also infra this note [a]. Mo.-Hipsley v. Kansas City, etc., R. Co., 88 Mo. 348; Ely v. St. Louis, etc., R. Co., 77 Mo. 34. N. Y.-Dale v. Delaware, etc., R. Co., 73 N. Y. 468; Dougan v. Champlain Transp. Co., 56 N. Y. 1; Reed v. New York Cent. R. Co., 45 N. Y. 574; Timpson v. Manhattan R. Co., 1 NYS 673; Schmitt v. Dry Dock, etc. R. Co., 3 NYSt 257. Or.-Skottowe V. Oregon Short Line, etc., R. Co., 22 Or. 430, 30 P 222. 16 LRA 593. Tex.-Fordyce v. Chancey, 2 Tex. Civ. A. 24. 21 SW 181; Fordyce v. Withers, 1 Tex. Civ. A. 540, 20 SW 766. [a] Minnesota.-(1) The supreme court of Minnesota at first held such evidence admissible, provided the repairs or changes were made so soon after the accident and under such [b] Providing new stopping place. In an action to recover damages for injuries received through the alleged negligence of defendant in failing to provide a safe place at which to alight, evidence that a new and better stopping place had been provided after the accident is inadmissible. Galveston, etc., R. Co. v. Walker, (Tex. Civ. A.) 48 SW 767. [e] Elevator case.-In an action for injuries caused by the breaking of an elevator rope, evidence that the rope was replaced by a heavier and stronger one was held inadmissible. Delaney v. Hilton, 50 N. Y. Super. 341. 7. St. Louis, etc., R. Co. v. Evans, 99 Ark. 69. 137 SW 568; Kansas Pac. R. Co. v. Miller, 2 Colo. 442; Martin v. Old Colony St. R. Co., 211 Mass. 535, 98 NE 579; Fordyce v. Chancey, 2 Tex. Civ. A. 24, 21 SW 181; Fordyce v. Withers, 1 Tex. Civ. A. 540, 20 SW 766. 8. Tipton v. Topeka R. Co., 9. Southern Pac. Co. v. Hall, 100 Repair of track see supra § 1443. 1444. Usual stopping place see supra § Usual time of stopping see supra § 1444. 11. Ala.-Birmingham R., etc., Co. v. Ellard, 135 Ala. 433, 33 S 276. Ark.-Kansas City Southern R. Co. v. Belknap, 80 Ark. 587, 98 SW 366. Cal.-Craven v. Central Pac. R. Co., 72 Cal. 345, 13 P 878. Conn.-Moffitt v. Connecticut Co., 86 Conn. 527, 86 A 16. Ill-East St. Louis, etc., R. Co. v. Zink, 229 Ill. 180, 82 NE 283. Ky. Illinois Cent. R. Co. v. Proctor, 102 SW 826, 31 KyL 494. Me.-Stone v. Lewiston, etc., St. R. Co., 99 Me. 243, 59 A 56. Mass.--Blauchette v. Holyoke St. R. Co., 175 Mass. 51, 55 NE 481. Mich.-Gardner v. Detroit St. R. Co., 99 Mich. 182, 58 NW 49. N. H.-Bullard v. Boston, etc., R. Co., 64 N. H. 27, 5 A 838, 10 AmSR 367. N. Y.-Gleason v. Metropolitan St. R. Co., 99 App. Div. 209, 90 NYS 1025; Phillips v. Rensselaer, etc., R. Co., 57 Barb. 644 [rev on other grounds 49 N. Y. 177]. Oh.-Mt. Adams, etc., R. Co. v. Issacs, 18 Oh. Cir. Ct. 177, 10 Oh. Cir. Dec. 49. Pa.- -O'Donnell V. Allegheny R. Co., 50 Pa. 490. Tenn.-Lawrence Heisk. 671. V. Hudson, 12 Tex.-Gulf, etc. R. Co. v. Rowland, 82 Tex. 166, 18 SW 96; Missouri, etc., R. Co. v. Avis, 41 Tex. Civ. A. 72, 91 SW 877 [aff 100 Tex. 33, 93 SW 424]; Texas, etc., R. Co. v. Crockett, 27 Tex. Civ. A. 463, 66 SW 114; Missouri etc., R. Co. v. Cook, 12 Tex. Civ. A. 203, 33 SW 669. [a] Alighting from moving train.(1) Where the issue is whether plaintiff was injured while alighting from cars, by the sudden starting of the same or by negligently jumping from the train while it was in motion, evidence is admissible on the part of the company that plaintiff had within a year frequently traveled over the road and had often jumped off while the trains were moving, and had been warned against the danger of so doing. Craven v. Central Pac. R. Co., 72 Cal. 345, 13 P 878. (2) Evidence tending to prove that defendant's cars for several years prior to the accident, as was known to plaintiff, were accustomed to make a very short stop at the crossing where he wished to alight, and not for a sufficient time to allow passengers to alight in safety, has been held to be admissible upon the question whether plaintiff was guilty of contributory negligence in leaving his seat while the car was in motion, and in preparing to alight. Mt. Adams, etc., R. Co. v. Isaacs, 18 Oh. Cir. Ct. 177, 10 Oh. Cir. Dec. 49. [b] Place of stopping.-(1) On an issue that one of defendant's street cars did not stop at the point where plaintiff claimed it did, and where he attempted to board it, evidence |