$7770. Knowledge of the Existence of Defects.-On the question of knowledge of the existence of defects in appliances or machinery rendering employment therewith unsafe, evidence of declarations, conversations, or conduct showing that defendant possessed such knowledge is generally admissible. Constructive knowledge of the defect on the part of the master may be shown by evidence of the condition of the appliance previously to1o and at the time of the accident causing the injury," or immediately thereafter, where there have been no alterations meanwhile, 12 or by proof of complaints to him by operatives, 13 or by the fact that an inspection made before the occurrence of the accident would have disclosed the defect if it had been. carefully conducted. But the fact that an appliance broke a day or two before the happening of the accident has been held not to charge. the master with knowledge of its defective condition, where the appliance was not constructed by the master but had been purchased from a responsible concern.15 The employé on his part is charged with ordinary care in the matter of acquainting himself with the condition of appliances used in his work, and here the rule is that the means of

$ See Vol. IV, § 3782.

'New York Electric Equipment Co. v. Blair, 79 Fed. Rep. 896; s. c. 51 U. S. App. 81; 25 C. C. A. 216; Brady v. Norcross, 174 Mass. 442; s. c. 54 N. E. Rep. 874 (a previous conversation between two foremen as to the condition of a scaffold); Ballard v. Hitchcock Man. Co., 71 Hun (N. Y.) 582; s. c. 55 N. Y. St. Rep. 110; 24 N. Y. Supp. 1101 (statement of secretary of manufacturing company as to condition of boiler); Texas &c. R. Co. v. Barron, 4 Tex. Civ. App. 546; s. c. 23 S. W. Rep. 537 (superintendent's reprimand of section foreman for not inspecting track on morning of accident).

10 Baxter v. Chicago &c. R. Co., 104 Wis. 307; s. c. 80 N. W. Rep. 644.

"Pioneer Cooperage Co. v. Romanowicz, 186 Ill. 9; s. c. 57 N. E. Rep. 864; aff'g s. c. 85 Ill. App. 407.

12 Woods v. Long Island R. Co., 159 N. Y. 546; s. c. 54 N. E. Rep. 1095; aff'g s. c. 11 App. Div. (N. Y.) 16; 42 N Y. Supp. 140; Creamery Package Man. Co. v. Hotsenpiller, 159 Ind. 99; s. c. 64 N. E. Rep. 600.

13 Huber V. Jackson, 1 Mary. (Del.) 374; s. c. 41 Atl. Rep. 92. Evidence that a workman objected to working under a crane because he was afraid of it, in connection

with other parts of a conversation with the superintendent of a factory, which, under the circumstances, tended to show that the attention of the company was called to the fact that the crane was unsafe, is admissible in an action by an employé for injuries from the fall of such crane: Ashley Wire Co. v. Mercier, 163 Ill. 486; s. c. 45 N. E. Rep. 222. In an action for personal injuries to one acting as engineer by the blowing out of the cylinder head of the engine, testimony of a witness that he did not know anything about the piston being cracked, but that he had called the chief engineer's attention to the click of it several times, and told him that there was something wrong in the cylinder, is admissible and relevant: Howard Oil Co. v. Davis, 76 Tex. 630; s. c. 13 S. W. Rep. 665.

14 St. Louis &c. R. Co. v. Dorsey, 189 Ill. 251; s. c. 59 N. E. Rep. 593; aff'g s. c. 89 Ill. App. 555; Pauck v. St. Louis Dressed Beef &c. Co., 166 Mo. 639; s. c. 66 S. W. Rep. 1070; Toledo Consol. St. R. Co. v. Mammet, 2 Ohio Dec. 532.

15 Doyle v. White, 9 App. Div. (N. Y.) 521; s. c. 41 N. Y. Supp. 628; s. c. aff'd, 159 N. Y. 548; 54 N. E. Rep. 1090.

defendant was his employer at the time of the injury. So, in a joint action against the owner of a building, the contractor and the subcontractor for an injury to an employé of the latter, the contracts and specifications between the owner and contractor were held properly admitted to show the relation of the defendants to one another.3

7768. Whether Employé Injured in Line of Duty.-On the question whether the injuries were received while the servant was engaged in the line of his duty, the plaintiff may show that no particular employé was charged with the duty in the performance of which the injuries were received, and that his act was essential to the due performance of the work he had in hand.*

§7769. Assumption of Risk.-Under the doctrine which holds the employé to have assumed the risk where he is injured by defective appliances of which he had previous knowledge, or had equal opportunities with the employer to know of such defects, evidence is admissible which tends to show this knowledge on the part of the injured employé. Thus, for example, in an action for injuries to a gravel train employé in running the train at an unusual and dangerous rate of speed and stopping it suddenly without warning, evidence that the train had been operated on other days while the plaintiff was employed thereon in the same manner as at the time of the accident, was admissible as tending to show that he had assumed the risk incident to such mode of operation. But evidence that a shed had been erected to protect an employé from material falling from the walls of a building in course of construction, and that material had previously fallen, is only admissible to show an assumption of risk where it is shown that the employé knew that the material had previously fallen from the roof and that he could perform his duties with safety under the protection of the shed."

dle on the trips immediately before the accident, in disobedience of orders, is admissible in connection. with other testimony that the break was a fresh one, and that the shank was in perfect condition at the commencement of the day's work: Coleman v. Mechanics' Iron Foundry Co., 168 Mass. 254; s. c. 46 N. E. Rep. 1065.

Lake Shore &c. R. Co. v. Malcom, 12 Ind. App. 612; s. c. 40 N. E. Rep. 822.

§ 7770. Knowledge of the Existence of Defects.-On the question of knowledge of the existence of defects in appliances or machinery rendering employment therewith unsafe, evidence of declarations, conversations, or conduct showing that defendant possessed such knowledge is generally admissible. Constructive knowledge of the defect on the part of the master may be shown by evidence of the condition of the appliance previously to1o and at the time of the accident causing the injury," or immediately thereafter, where there have been no alterations meanwhile,12 or by proof of complaints to him by operatives, 13 or by the fact that an inspection made before the occurrence of the accident would have disclosed the defect if it had been carefully conducted.14 But the fact that an appliance broke a day or two before the happening of the accident has been held not to charge. the master with knowledge of its defective condition, where the appliance was not constructed by the master but had been purchased from a responsible concern.15 The employé on his part is charged with ordinary care in the matter of acquainting himself with the condition of appliances used in his work, and here the rule is that the means of

See Vol. IV, § 3782.

'New York Electric Equipment Co. v. Blair, 79 Fed. Rep. 896; s. c. 51 U. S. App. 81; 25 C. C. A. 216; Brady v. Norcross, 174 Mass. 442; s. c. 54 N. E. Rep. 874 (a previous conversation between two foremen as to the condition of a scaffold); Ballard v. Hitchcock Man. Co., 71 Hun (N. Y.) 582; s. c. 55 N. Y. St. Rep. 110; 24 N. Y. Supp. 1101 (statement of secretary of manufacturing company as to condition of boiler); Texas &c. R. Co. v. Barron, 4 Tex. Civ. App. 546; s. c. 23 S. W. Rep. 537 (superintendent's reprimand of section foreman for not inspecting track on morning of accident).

10 Baxter v. Chicago &c. R. Co., 104 Wis. 307; s. c. 80 N. W. Rep. 644.

"Pioneer Cooperage Co. v. Romanowicz, 186 Ill. 9; s. c. 57 N. E. Rep. 864; aff'g s. c. 85 Ill. App. 407.

12 Woods v. Long Island R. Co., 159 N. Y. 546; s. c. 54 N. E. Rep. 1095; aff'g s. c. 11 App. Div. (N. Y.) 16; 42 N Y. Supp. 140; Creamery Package Man. Co. v. Hotsenpiller, 159 Ind. 99; s. c. 64 N. E. Rep. 600. 13 Huber

V. Jackson, 1 Marv. (Del.) 374; s. c. 41 Atl. Rep. 92. Evidence that a workman objected to working under a crane because he was afraid of it, in connection

with other parts of a conversation with the superintendent of a factory, which, under the circumstances, tended to show that the attention of the company was called to the fact that the crane was unsafe, is admissible in an action by an employé for injuries from the fall of such crane: Ashley Wire Co. v. Mercier, 163 Ill. 486; s. c. 45 N. E. Rep. 222. In an action for personal injuries to one acting as engineer by the blowing out of the cylinder head of the engine, testimony of a witness that he did not know anything about the piston being cracked, but that he had called the chief engineer's attention to the click of it several times, and told him that there was something wrong in the cylinder, is admissible and relevant: Howard Oil Co. v. Davis, 76 Tex. 630; s. c. 13 S. W. Rep. 665.

14 St. Louis &c. R. Co. v. Dorsey, 189 Ill. 251; s. c. 59 N. E. Rep. 593; aff'g s. c. 89 Ill. App. 555; Pauck v. St. Louis Dressed Beef &c. Co., 166 Mo. 639; s. c. 66 S. W. Rep. 1070; Toledo Consol. St. R. Co. v. Mammet, 2 Ohio Dec. 532.

knowing by the exercise of ordinary care is equivalent to knowledge.16 The rule finds a ready application in the case of a railroad employé injured by a fixed object at the side of the track that he had passed daily during a long term of service.1 It has been held not improper to ask an employé suing for personal injuries from a defective appliance whether he would have gone to work if he had known of the condition of the appliance.18 An employé injured by a defective appliance and claiming ignorance of the defect may be contradicted by any evidence showing actual knowledge thereof.19

§ 7771. Promise to Repair.—A servant may continue to work with a defective appliance for a reasonable length of time after he has notified the master of the defect and secured from him a promise to make the necessary repairs, and evidence of the promise to make the repairs. is competent.20 But evidence that another employé had made complaint and obtained a promise to make repairs, is not admissible on behalf of the injured employé.21 Evidence of unfulfilled promises to make repairs is admissible though they are not pleaded.22 The employé has a right to rely on the assurance of the master that repairs have been made; hence, it is proper to receive the testimony of an employé in a saw mill who sued for personal injuries received from a defective saw, that its defective condition was not perceivable after it had been reported to him as repaired.23 Since it is essential that the person to whom the complaint of the defect was made was authorized to promise the repairs, it may be shown by the defendant that the complaint was made to one not empowered either to promise reparation or repair the defects complained of.24

16 Keist v. Chicago &c. R. Co., 110 Iowa 32; s. c. 81 N. W. Rep. 181.

17 New York &c. R. Co. v. Ostman, 146 Ind. 452; s. c. 45 N. E. Rep. 651; 6 Am. & Eng. R. Cas. (N. S.) 588. 18 Great Northern R. Co. v. McLaughlin, 70 Fed. Rep. 669; s. c. 44 U. S. App. 189; 17 C. C. A. 330.

19 Barker v. Lawrence Man. Co., 176 Mass. 203; s. c. 57 N. E. Rep. 366.

20 See Vol. IV, § 4667; Springs v. Southern R. Co., 130 N. C. 186; s. c. 41 S. E. Rep. 100; Louisville &c. R. Co. v. Kentley, 92 Tenn. 207; s. c. 21 S. W. Rep. 326; Reese v. Morgan Silver-Min. Co., 17 Utah 489; s. c. 54 Pac. Rep. 759. Where plaintiff in an action for personal injuries received in a mine, on being asked if he would have gone to work knowing that some of the roof was loose, if defendant's superin

tendent had not promised to fix it, answered that he would not, there was no error, as the petition charged that plaintiff was guilty of no negligence, and that he informed the superintendent of the danger, and was told to continue work, and that the danger would be; remedied: Taylor v. Star Coal Co., 110 Iowa 40; s. c. 81 N. W. Rep. 249.

Ford v. Chicago &c. R. Co., 91 Iowa 179; s. c. 24 L. R. A. 657; 59 N. W. Rep. 5.

22 Belleville Stone Co. v. Mooney, 60 N. J. L. 323; s. c. 38 Atl. Rep. 835; s. c. aff'd, 61 N. J. L. 253; 39 L. R. A. 834; 39 Atl. Rep. 764.

23 Lawrence v. Hagemeyer, 93 Ky. 591; s. c. 14 Ky. L. Rep. 566; 20 S. W. Rep. 704.

24 Perdue v. Louisville &c. R. Co., 100 Ala. 535; s. c. 14 South. Rep. 366.

§ 7772. Rules for the Government of Employés.-A rule promulgated by an employer for the government of his employés is admissible in evidence where it is claimed that disobedience of the rule caused the injuries sued for.25 But evidence of a rule as to the right of way between trains and hand-cars is properly refused where the right of precedence is not involved and the trial proceeds on the assumption that the train which collided with the hand-car on which the injured person was riding had the right of way.26 Where the rule relied upon is not written, an employé may testify as to its substance.27 In the case of a rule of long standing it is not necessary to prove the servant's knowledge of its existence.28 Nor is it necessary to prove an actual delivery of a copy of the rules to him where his contract of employment provides that he shall obey such rules when made: evidence reasonably justifying an inference that he received notice of the rules is sufficient.29 But evidence that, upon applications for employment, it was printed that the company required every applicant who obtained a position to sign a printed form containing the rule, and that every employé was supposed to know the rule, is properly excluded where no offer is made to produce the writing itself, or to show that deceased signed it, or that he had knowledge

"Louisville &c. R. Co. v. Banks, 132 Ala. 471; s. c. 31 South. Rep. 573; Chicago &c. R. Co. v. O'Sullivan, 143 Ill. 43; s. c. 32 N. E. Rep. 398; Lake Erie &c. R. Co. v. Mugg, 132 Ind. 168; s. c. 31 N. E. Rep. 564; Pearl v. Omaha &c. R. Co., 115 Iowa 535; s. c. 88 N. W. Rep. 1078; Pierson v. Chicago &c. R. Co., 116 Iowa 601; s. c. 88 N. W. Rep. 363; Cincinnati &c. R. Co. v. Cook, 23 Ky. L. Rep. 2410; s. c. 67 S. W. Rep. 383 (no off. rep.); Rogers v. Louisville &c. R. Co., 15 Ky. L. Rep. 686; s. c. 25 S. W. Rep. 269 (no off. rep.); Noonan v. New York &c. R. Co., 42 N. Y. St. Rep. 41; s. c. 16 N. Y. Supp. 678; Missouri &c. R. Co. v. Mayfield, 29 Tex. Civ. App. 477; s. c. 68 S. W. Rep. 807; Missouri &c. R. Co. v. Baker (Tex. Civ. App.), 58 S. W. Rep. 964 (no off. rep.); Madden v. Chesapeake &c. R. Co., 28 W. Va. 610. In an action for negligence for want of sufficient rules for the protection of employés, it is improper to exclude proof that an oral rule was made, was in existence, and was actually communicated to an employé, which, if followed, might have

tended to his safety in the work in which he was engaged: Lake Shore &c. R. Co. v. Whidden, 23 Ohio C. C. 85.

20 Woodward Iron Co. v. Herndon, 114 Ala. 191; s. c. 21 South. Rep. 430; 7 Am. & Eng. R. Cas. (N. S.) 134.

27 St. Louis &c. R. Co. v. Bauer, 156 Ill. 106; s. c. 40 N. E. Rep. 448; aff'g s. c. 53 Ill. App. 525.

29

23 Alcorn v. Chicago &c. R. Co., 108 Mo. 81; s. c. 18 S. W. Rep. 188. Lehigh Valley R. Co. v. Snyder, 56 N. J. L. 326; s. c. 28 Atl. Rep. 376; Ford v. Chicago &c. R. Co., 91 Iowa 179; s. c. 24 L. R. A. 657; 59 N. W. Rep. 5; Parks v. St. Louis &c. R. Co., 29 Tex. Civ. App. 551; s. c. 69 S. W. Rep. 125. Evidence that a printed rule of a railroad company requiring the use of coupling sticks was posted on the bulletin board in the yard where the plaintiff worked is competent on the question of fact as to whether or not he had knowledge of the rule in question at the time he received his injury: McDonald v. Fitchburg R. Co., 19 App. Div. (N. Y.) 577; s. c. 46 N. Y. Supp. 600.