it material on this question that a former scaffold built by the same person gave way.102 Similarly, evidence as to the usual way of taking out scaffolding is inadmissible, particularly where the negligence of the master in doing the work, and not the method adopted, is the subject of complaint.103 Generally, evidence as to the strength and suitability of the lumber used in the construction of scaffolding is admissible in an action for injuries caused by the giving way of a scaffold composed of the material in question.104 So, on the question of the exercise of reasonable care in selecting the material for the construction of a scaffold, it may be shown whether tests of the material used were made or omitted.105 On the question of voluntary assumption of the risk arising from a defective condition of the scaffold, it may be shown that the plaintiff went on the scaffold against his protest and under the order of a superior.106 Where employés were injured by the falling of a derrick, evidence that it was set up so as to allow a vertical play of the goose neck and guy plate of four inches, and that the usual play of such plates in similar derricks was but a quarter of an inch, is competent to show that the employer, by the exercise of ordinary care, could have ascertained that the derrick needed better adjustment for safety.107 Opinion evidence is generally admissible to show whether the scaffold was overloaded.108

§ 7787. Injury in Elevator Not Intended for Use of Employés. -In an action for the death of an employé while riding in an elevator in a building which the defendant was constructing evidence that the defendant had given instructions that workmen should not ride on the elevator, and that it was not intended for any such purpose, is admissible to rebut evidence that such elevator had been furnished by the defendant for the transportation of workmen.109

$7788. Flying Switches-Kicking Cars.-Where the sole question is as to negligence in making a flying switch, and not as to the dangerous character of such operation, evidence of the custom of other rail

102 Kennedy v. Spring, 160 Mass. 203; s. c. 35 N. E. Rep. 779.

103 Doyle v. Missouri &c. Trust Co., 140 Mo. 1; s. c. 41 S. W. Rep. 255.

104 Kuhn v. Delaware R. Co., 92 Hun (N. Y.) 74; s. c. 36 N. Y. Supp. 339.

105 Rollings v. Levering, 18 App. Div. (N. Y.) 223; s. c. 45 N. Y. Supp. 942 (hooks for suspending scaffold).

106 Doyle v. Missouri &c. Trust Co., 140 Mo. 1; s. c. 41 S. W. Rep. 255. 107 McMahon v. McHale, 174 Mass. 320; s. c. 54 N. E. Rep. 854.

108 Prendible v. Connecticut River Man. Co., 160 Mass. 131; s. c. 35 N. E. Rep. 675.

109 White V. Eidlitz, 19 App. Div. (N. Y.) 256; s. c. 46 N. Y. Supp. 184.

roads in making such switches is clearly incompetent.110 Where the injuries were occasioned by a flying switch made during rainy and freezing weather, which prevented the brake wheels from working properly, evidence of the general custom of other railroads in making these switches is admissible only on proof of a custom to make them under similar circumstances.111 On the question of the acquiescence of the employé in this method of making a switch, it may be shown that the railroad company was in the habit of making such switches with the knowledge of the deceased upon other tracks than the one upon which the accident occurred.112 Since a "running switch" and a "kick" are different methods of switching, it is erroneous to admit in evidence the rules of the company relating exclusively to "running switches" where the injuries were caused by a "kick."113

§ 7789. Overhead Bridges and Other Overhanging Objects.—In the case of injuries to railroad employés by collision with overhanging objects, it may be shown that the condition had existed for such length of time as to charge the railroad company with knowledge of that fact.114 Evidence of the usual and ordinary distance from overhead bridges for the erection of warning signals is competent on the question whether the signal in question was too near the bridge to operate as a sufficient warning.115 On the issue whether a supply pipe of a water tank projected so far and extended so low that a brakeman on the top of a car could not safely pass under it, evidence of the height of the ordinary freight cars in use on the company's road is relevant in connection with testimony as to the distance of the pipe from the level of the track." 116

$7790. Various Matters of Evidence Relating to Railroad Signals. -Where the injury to a railroad employé is claimed to have resulted from a disregard of his signal, testimony is admissible as to the duty of an employé giving a signal to see that it is received.117 Where the defendant in an action for death introduced testimony tending

110 Weatherford &c. R. Co. v. Duncan, 88 Tex. 611; s. c. 32 S. W. Rep. 878.

111 Weatherford &c. R. Co. v. Duncan, 10 Tex. Civ. App. 479; s. c. 31 S. W. Rep. 562.

112 Pittsburgh &c. R. Co. v. Burroughs, 6 Ohio Dec. 527; s. c. 5 Ohio N. P. 12.

113 Georgia R. &c. Co. v. Fitzgerald, 108 Ga. 507; s. c. 34 S. E. Rep. 316.

114 Pittsburgh &c. R. Co. v. Parish,

28 Ind. App. 189; s. c. 62 N. E. Rep. 514; Galveston &c. R. Co. v. Gormley (Tex. Civ. App.), 27 S. W. Rep. 1051 (no off. rep.).

115 Wallace v. Central Vermont R. Co., 138 N. Y. 302; s. c. 33 N. E. Rep. 1069; 52 N. Y. St. Rep. 351.

116 East Tennessee &c. R. Co. v. Thompson, 94 Ala. 636; s. C. 10 South. Rep. 280.

117 Missouri &c. R. Co. v. Baker (Tex. Civ. App.), 58 S. W. Rep. 964 (no off. rep.).

to show that the locomotive causing the injury was moved in response to a signal from the deceased, it has been held proper in rebuttal to show by a witness that he was in a position to see the employé at the place he was alleged to have been when the signal was given, and that he did not see him there and did not see any signal given.118 Evidence showing that it was customary to give warnings of the approach of trains to the place where the accident occurred is generally admissible to rebut a possible inference of contributory negligence.119

§ 7791. Written Report of Accident to State Officials Not Admissible. Manifestly the reports made by officers in charge of railroad companies to a State commissioner in regard to accidents and injuries to employés and passengers, made up from statements from the parties who witnessed the circumstances, as required by statute, are not competent evidence in actions against railroad companies by their employés for injuries.120

§ 7792. Habits of Injured Person.-Where the question was whether, on the occasion on which plaintiff was injured, he used care for his own protection and safety, evidence of his general character for prudence or recklessness in the conduct of the business in which he was injured is not admissible either for or against him on the question.121

CHAPTER CCVIII.

EVIDENCE IN ACTIONS AGAINST RAILROAD COMPANIES IN OTHER THAN THE CARRIER OR EMPLOYER RELATION.

§ 7798. Railway Crossing Accidents. On the question whether a train was run over a crossing at a dangerous rate of speed it may be shown that the rate was in excess of that fixed by law. On the inquiry evidence is admissible as to the extensive use of the crossing by the public, its location in a thickly populated district,3 the number of

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trains run over the crossing, and like matters calling for the exercise of care. It is not required that testimony as to whether the train was run at a dangerous rate of speed should come through an expert on the subject, as the question calls for a fact and not an opinion. As throwing light on this question, the speed of the same train at a nearby crossing passed before reaching the one where the accident happened may be shown when such crossing is so near that a material slackening of the speed meanwhile would seem unlikely. The plaintiff may also show the speed of the same train on other occasions before and since the accident as showing a habitual disregard of the safety of the public. On the question of the exercise of due care to avoid injury to a person on the crossing after discovery of his perilous position, evidence is relevant and material as to the distance in which a train with sound brakes could be stopped. Where no question of any defect in the crossing is involved, but the alleged negligence consists in the running of the train and the omission of the ordinary signals, evidence of other accidents at the crossing is inadmissible."

§ 7799. Whether Crossing is a Public Crossing.-One suing for personal injuries by a railroad company at the crossing of a named highway is not bound to show that such highway was legally established.10 The court announcing this principle has held that evidence that a travelled public way crossed a railroad track at the point in question, that cattle-guards had been constructed in the track on either side of the way, and that public funds and road labor had been expended on the road, was prima facie sufficient to establish the existence of a public highway at such point.11

Ill. App. 464; Harrington v. Erie R. Co., 79 App. Div. (N. Y.) 26; s. c. 79 N Y. Supp. 930. Proof of the danger of a crossing and of the fact that it is in a populous locality is admissible on the question of negligence in failure to provide flagman or gates there: English v. Southern &c. R. Co., 13 Utah 407; s. c. 4 Am. & Eng. R. Cas. (N. S.) 63; 45 Pac. Rep. 47. See also, Abbot v. Dwinnell, 74 Wis. 514; s. c. 43 N. W. Rep. 496; Cohen v. Chicago &c. R. Co., 104 Ill. App. 314.

N. H. 200; s. c. 11 L. R. A. 364; 45 Am. & Eng. R. Cas. 163; 20 Atl. Rep. 976; Louisville &c. R. Co. v. Woods, 105 Ala. 561; s. c. 17 South. Rep. 41. Stone v. Boston &c. R. Co., 72 N. H. 206; s. c. 55 Atl. Rep. 359; Parkinson v. Nashua &c. R. Co., 61 N. H. 416.

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s Ward v. Chicago &c. R. Co., 85 Wis. 601; s. c. 55 N. W. Rep. 771.

"Hutcherson v. Louisville &c. R. Co., 21 Ky. L. Rep. 733; s. c. 52 S. W. Rep. 955 (no off. rep.); Burke v. New York &c. R. Co., 49 N. Y. St. New York &c. R. Co. v. Luebeck, Rep. 370; s. c. 20 N. Y. Supp. 808; 54 Ill. App. 551.

Overtoom v. Chicago &c. R. Co., 181 Ill. 323; s. c. 54 N. E. Rep. 898; rev'g s. C. 80 Ill. App. 515. See ante, § 7754.

6 Lyman v. Boston &c. R. Co., 66

Menard v. Boston &c. R. Co., 150
Mass. 386; s. c. 23 N. E. Rep. 214.

10 Chicago &c. R. Co. v. Heinrich, 157 Ill. 388; s. c. 41 N. E. Rep. 860.

11 Baltimore &c. R. Co. v. Faith, 175 Ill. 58; s. c. 51 N. E. Rep. 807.