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have any instructions on that day (the day of the injury) with regard to the running at that particular point except

the time card.

Mr. Allen further testified that, "It was the practice for the trainmen not to undertake to get their trains up from Lower Crossing to Clift. Siding, and sidetrack them, in less than thirty-five minutes, as against the passenger train. There are second-class trains which are only allowed to carry 550 tons, which would take less time to go;" that he only knew of one violation of this practice, and in that connection he made the following statement: "There are some things which impressed on my mind this one time when the train came in in less time against the passenger train, and that is, that General Superintendent Welby was on the passenger train that day, and the conductor came in on front of the engine, on the pilot, just about the time; just a little before the passenger train was due, only a minute or so, and the conductor was not on the road but a very short time after that."

The train on which the plaintiff was injured, at the time of the injury, was running against a passenger train. There was no evidence whatever adduced in the case, showing or tending to show that a train of any class ever made or attempted to run from Lower Crossing to Clift. Siding, against a passenger train in less time than was provided by the rules or regulations of the company, but twice; once on the occasion mentioned by the witness Allen, and on the occasion when the plaintiff was injured.

The evidence was not sufficient to show that the rules and regulations of the company, so far as they related to the train on which the plaintiff was injured, had been abrogated, or to raise, in regard to the same, the presumption before mentioned. Therefore the admission of the testimony objected to by the defendant, was error.

3. The following instruction predicated upon the evidence relating to the abrogation of the rules and regulations of the company, was given: "If the defendant company suffered for a length of time amounting to approval, or actually approved the habitual disregard of any of its rules and regulations in evidence, then in that case such rule so habitually disregarded, if it were disregarded, was inoperative and abrogated, and the practice followed became the rule.”

An exception to this instruction was duly taken by the defendant, based upon the objection that there was no evidence on which to predicate it.

It follows from our conclusion on this question herein. before announced, that the objection should have been sustained.

4. For the purpose of breaking the force of the entry of the time at which the wrecked train left Lower Crossing, and which entry was conceded to have been made by Allen, as agent, on the sheet furnished to him by the company for that purpose, and which the plaintiff in his testimony stated it was the duty of Allen, as agent, to make, and that he had made an entry of the time, but not correctly, plaintiff's attorney asked him the following questions:

"Q. What is the practice pursued by railroad agents in making records, as to having it exact or otherwise?

Q. What was the practice as to making the departure and arrival of trains correctly?"

Defendant's attorney made the following objection to these questions: "I object to that as being immaterial and incompetent, for the reason that it does not refer to this particular entry, made by the station agent at Lower Crossing; if that was correct, it was immaterial whether other people indulged in the practice of being incorrect or not."

This objection was overruled, and the plaintiff made the following answers:

"A. They are not always made correctly. Á. Very often they would ask some engineer, or someone else sitting around the office, as to what time the train did depart, and record it that way."

The questions were not confined to the practice of Allen, nor do the answers assert that it was his practice to make false entries. The fact that it was the practice of other agents to disregard their duties, did not tend to show that such was the practice of Allen, or that the entry in question was false.

Even when the negligence of an agent on a particular occasion, is an issue in the case, evidence that he was negligent on other occasions is not admissible, and has no legitimate bearing upon the question. Maguire v. Middlesex Ry. Co., 115 Mass., 239; Chicago & Alton Ry. Co. v. Hodge, 55 Ill. App., 166.

The objection of defendent should have been sustained.

5. The defendant asked the trial court to give the following instruction:

"When the plaintiff entered the service of the defendant company, as a locomotive engineer, he assumed all the risks of the occupation that were ordinarily incident to it, and all risks arising from the defective condition of the machinery and appliances that were not observable by the defendant in the exercise of ordinary care, and for an injury to himself arising from any of these assumed risks, the plaintiff can not recover." This instruction the court refused to give as requested, but modified the same by adding thereto the following:

"The plaintiff did not undertake to incur risks arising from defective machinery or other instruments with

which he is to work; his contract implied that in regard to these matters the defendant would make adequate provision that no unnecessary danger should ensue to him," and gave the instruction as modified.

The defendant excepted to the refusal to give the instruction requested, and also to the giving of the instruction as modified.

This modification is not consistent with that portion of the modified instruction which the defendant requested to be given, and is contradictory to and inconsistent with other instructions given by the court.

The 13th instruction given by the court is as follows: "The defendant was not required to warrant the perfection of its machinery or appliances, or to insure its employees from injury from boiler explosions or other like accidents; the defendant's duty to the employees was only to use due care and diligence, first, to furnish a suitable and safe engine, and the due care and diligence to keep it in that condition. And by due care and diligence,' I mean the care and diligence which a man of ordinary prudence, engaged in like business, would exercise for his own protection and the protection of the property."

Other instructions of like character, were also given. These instructions correctly stated the law applicable to this branch of the case, and therefore no error was committed in refusing to give the instruction asked for by defendant, because the instructions given fully covered the same ground. The objectionable part of the modified instruction is the modification. The modification is based upon the language used by Judge Field, in the case of the Northern Pacific Ry. Co. v. Herbert, 116 U. S., 648, which is as follows: "The servant does not undertake to incur the risks arising from the want of sufficient and skillful co-laborers, or from defective machinery or other

instruments with which he is to work. His contract implies that in regard to these matters his employer will make adequate provision that no danger shall ensue to him."

In connection with this language Judge Field cites the case of Hough v. Railroad Company, 100 U. S., 217, and quoted language therefrom which modifies the language used by him. In the opinion in that case it is said that, "One, and perhaps the most important, of those exceptions arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master's business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master. To that end the master is bound to observe all the care which prudence and the exigencies of the situation require, in providing the servant with machinery or other instrumentalities adequately safe for use by the latter.'

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In the case of Washington, etc., Railroad Co. v. McDade, 135 U. S., 569, the instruction to the jury was as follows: The jury are instructed that the defendant was not a guarantor of the safety of its machinery, and was only bound to use ordinary care and prudence in the selection and arrangement and care thereof, and had a right to use and employ such as the experience of trade and manufacture sanctioned as reasonably safe."

In passing upon the validity of this and other like instructions the court said: "We do not think there was any error in any of these instructions of which the defendant had any right to complain. The propositions contained in them are in strict accord with the principles laid down by the decisions of this court." And cited in support thereof the following cases: Hough v. Railroad Co., 100 U. S., 213, 217; Northern Pacific Railroad

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