degree of care which the known and constant danger of his situation required them to exercise for his own protection. In either case he was not entitled to recover. But notwithstanding the plaintiff's testimony, to the effect that he did not know that irregular trains were run, the incredibility of this testimony is not only suggested by the considerations to which we have referred, but also by his other testimony. He says that" when we were on the hand car we always kept a lookout for trains;" and that on this occasion, although these men were expecting a freight train from the west, they also kept a lookout to the eastward to see whether a train might be coming from that direction. "Hag and I kept a lookout in that way." By his own testimony it would seem that the plaintiff's conduct was regulated by the consciousness or understanding that an irregular train might come from the east, as this engine and snow plow did. Upon the whole case, we think it so clear that the plaintiff Plaintiff as- must have been deemed to have known this danger sumed risk, and to have assumed the risk, or else that he was chargeable with negligence in not having observed it, that the court was justified in refusing to present the case to the jury. Proof of the custom of this defendant, and of other railroads generally, to run trains at irregular times, and without special notice, was relevant to the issue in this case, and was competent. Proof of the general custom was competent in support of the claim that this was not negligence. The practice of this company was competent, for it tended to. show that the plaintiff, after so long a period of service, must have learned of this practice, and this was one of the risks of his employment.

Evidence-
Train record.

The defendant offered in evidence its train record, showing the number of trains, regular and extra, run over the road at the time in question. The plaintiff expressly admitted that this was "the record of the trains," but objected to its admission "on the ground that it was incompetent, irrelevant, and immaterial, for the purpose of justifying the defendant in committing the injury complained of, or for any purpose." The assignment of error in respect to the admission of this evidence cannot be sustained. The fact sought to be thus proved was material and relevant, for reasons appearing in the former part of this opinion. The express admission of the plaintiff, and the form of his objection, may be fairly regarded as a waiver of any objection based upon the fact that qualifying proof had not been presented to justify treating the record as admissible evidence of the facts there entered. It would naturally be so understood by adverse counsel and by the court. Order affirmed.

Injuries to Section Hands from Extra Trains-Risks of Employment.-See Cincinnati, I., St. L. & C. R. Co. v. Lang, (Ind.), 38 Am. & Èng. R. Cas. 25, note 30.

Injuries to Employes Transferring Cars from Broad to Narrow Guage Trucks -Assumption of Risk.-In Titus v. Bradford, B. & K. R. Co., Pennsylvania Sup. Ct., October 6, 1890, the action was for the wrongful death of a brakeman. It appeared that the defendant company operated a narrow guage road, to connect with and act as a feeder to standard guage roads. In the operation of its road it was customary, as with other narrow guage roads, to transfer broad guage cars to narrow guage trucks for transportation to the different points on the line of defendant's road. This transfer was accomplished by means of an appliance known as a hoist, by means of which the standard guage trucks were removed from under the cars, and narrow guage trucks substituted. The brakeman, plaintiff's intestate, had formerly assisted in transferring such cars, and knew the risk attendant upon running them upon a narrow guage track. While riding upon the top of a car that had been thus transferred, the blocking which held the car to the trucks became loose, and it turned over, causing the death of the brakeman. Held, that although the service was dangerous, yet plaintiff had accepted it fully aware of all his risks, and as no negligence on the part of the defendant had been shown, there could be no recovery. The court said: "Some employments are essentially hazardous, as said by our Brother GREEN, in Northern Cent. R. Co. v. Husson, 101 Pa. St. 1, 12 Am. & Eng. R. Cas. 241, of coupling railway cars; and it by no means follows that an employer is liable because a particular accident might have been prevented by some special device or precaution not in common use. All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter, for in regard to the style of implement, or nature of the mode of performance of any work, reasonably safe' means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences not of danger but of negligence and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business is a negligent way for which liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall, in effect, dictate the customs, or control the business, of the community. In Delaware, etc., Works v. Nuttall, 119 Pa. St. 149, our Brother WILLIAMS said: The testimony shows that such attachment is not in general use. It is not enough that some persons regard it as a valuable safeguard. The test is general use. Tried by this test the saw of the defendant was such a one as the company had a right to use, because it is such as is commonly used by mill owners; and it was error to leave to the jury any question of negligence based on the failure to provide a spreader. See also, Payne v. Reese, 100 Pa. St. 306; Skyes v. Packer, 99 Pa. St. 465; Allison Manuf. Co. 7. McCormick, 118 Pa. St. 519, and Lehigh & W. Coal Co. v. Hayes, 128 Pa. St. 294.

* * *

Employe Injured While Moving Wheels in Repair Shop-Risk AssumedPleading. In Louisville. N. A. & C. R. Co. v. Corps, Indiana Sup. Ct., June 20,

1890, the plaintiff alleged in his complaint that he was in the service of the defendant as a laborer in its repair shops; that the defendant negligently employed an unexperienced, unskillful and incompetent person to superintend and direct the work in its shops, and the work upon which plaintiff was engaged at the time of his injury; that the work which the plaintiff was performing was that of moving large locomotive driving wheels; that the defendant negligently failed to provide a sufficient number of competent men to do the work, and that it failed to furnish sufficient machinery for such work; that by reason of the careless and negligent acts of the defendant, a pair of driving wheels ran upon the plaintiff's arm and so injured it as to deprive him of its use; and that the injury happened without fault on plaintiff's part. Held, that such complaint was demurrable, as not showing that the peril was not a known risk of plaintiff's employment. The court said: "In order to make a good complaint in such a case as this, it is essential that it should be averred that the plaintiff had no knowledge of the danger, since, if he did have knowledge and voluntarily continued in the master's service, he is deemed to have assumed the risk as an incident of his service. Louisville, N. A. & C. R. Co. v. Sandford, 117 Ind. 265; Brazil Block Coal Co. v. Young, 117 Ind. 520; Lake Shore & M. S. R. Co. v. Stupak, 108 Ind. 1, 28 Am. & Eng. R. Cas. 323; Indiana, B. & W. R. Co. v. Dailey. 110 Ind. 75: Philadelphia & R. R. Co. v. Hughes, 119 Pa. St. 301, 33 Am. & Eng. R. Cas. 348; Wilson v. Winona & St. P. R. Co., 37 Minn. 326. 31 Am. & Eng. R. Cas. 244; Gaffney v. New York & N. E. R. Co., 15 R. I. 456, 31 Am. & Eng. R. Cas. 265. Remaining in the master's service with knowledge of the dangers of the service is not simply contributory negligence, for as Mr. Beach says, he [the servant] is deemed to assume the risks of such danger, and to waive any claim upon his master for damages in case of injury. Beach, Cont. Neg: § 140. There is, in such a case, no right of recovery, for the employer is absolved from liability. It is therefore a necessary conclusion, as shown by the authorities to which we have referred, that the allegation that the plaintiff was free from fault does not supply the place of averments showing that the risk was not one knowingly assumed as an incident of his service. It may be true that an employe exercises the utmost care, and yet be true that the risk assumed was an incident of the service in which he engaged.

Injury Caused While Pushing Truck in Blacksmith's Shop-Assumption of Risk. In Schnibbe v. Central R. Co., Georgia Sup. Ct., June 2, 1890, it appeared that the work in which plaintiff was engaged at the time he was hurt was an ordinary laborer's work, and that he had been employed by the company for several years. In his complaint he alleged that while pushing an ordinary cotton truck into the defendant's blacksmith shop, the wheel struck an obstruction, thereby causing the iron frame which was on the truck to fall off and on the plaintiff's foot, which was badly mashed. The plaintiff offered no evidence to show negligence on the part of the defendant or any complaints on his part as to the appliances used, or the number of men employed, or to show that the accident was not the result of the ordinary risk of his employment. It was held that a nonsuit was properly granted, the court saying: "This seems to be one of those casualties which arise in every business employment, and for which no one seems to be to blame.'

Injury to Laborer in Gravel Pit-Falling of Clay Bank-Risk Assumed.In Griffin v. Ohio & M. R. Co., Indiana Sup. Ct., June 17, 1890, the action was brought to recover damages on account of a personal injury suffered by the plaintiff at a gravel pit. It appeared that the plaintiff was employed by the defendant to assist in loading gravel upon its trains. The bed of gravel on which the plaintiff worked was covered by a stratum of clay. The gravel was loaded on the cars by means of a large shovel attached to

1

a crane by which it was scooped from near the base of the bed. The crane was not long enough to scoop all the gravel from the base to the clay on top, and that above its reach was gouged and spaded out by means of long picks and spades used by the employes. When the gravel was thus picked and spaded out, it caused the clay covering the same to cave and fall down. The plaintiff while engaged in excavating the gravel was injured by the falling of such clay. In his complaint he alleged that the defendant did not notify him of the danger attending such work by reason of the caving in and falling of the clay, and that he had no knowledge or notice of such danger, and that his injury occurred by reason of the carelessness of the defendant in not warning him of the manner of such excavating, and the danger therefrom, and in not having any sufficient means of giving such warning. Held, that the plaintiff was not entitled to recover, the danger being incident to his employment.

See as to risks assumed by shovellers in gravel pit, Songstad v. Northern Pacific R. Co. (Dak.), 38 Am. & Eng. R. Cas. 211.

Injury to Street Car Driver by Defective Platform-Knowledge of DefectAssumption of Risk.-In Rogers v. Galveston City R. Co., Tex. Sup. Ct., March 18, 1890, it was held that where the driver of a street car continues in the service after becoming aware of a defect in the platform on which he stands, he cannot recover for an injury received owing to a fall caused by such defect, but will be considered to have assumed the increased risk. The court said: "The servant assumes the risks ordinarily incident to his employment, and such as arise from open and visible imperfections of things about which he is employed, and of defects which he might have known by the use of ordinary care. These are elementary principles. Chief Justice STAYTON announced the law applicable to this case as follows: The liability of the master to the servant for injuries resulting from the use of defective implements arises from the fact that it is the duty of the master to furnish implements not defective; and a servant, unless the defect be patent, may assume that the master in this respect has performed his duty; but when he has knowledge that the master has not done so, if he continues in the employment in which such defective implements are used, he must ordinarily be held to assume the risks incident to the same as it is attempted to be carried on, and not to assume only the risks incident to such service when carried on with implements not defective of their kind, and suitable to the work undertaken, Texas & P. R. Co. v. Bradford, 66 Tex. 734, 28 Am. & Eng. R. Cas. 469. Testing the case before us by these established principles, we cannot see how the plaintiff can recover. The patch on the floor of the car platform, and its condition, was open to common observation, visible to every one, and was in fact known to plaintiff. There was no concealed danger about it; nothing that a man of ordinary intelligence could not understand. No expert was required to note the physical facts, and determine the consequences possible upon its use. Plaintiff was a man of mature years, and nine months' experience in defendant's service. The floor was obviously uneven, and the probabilities of stumbling over it or slipping upon it were as open to plaintiff as to defendant. The simplest natural laws were involved in any conjecture that might be made as to risk of its use, and plaintiff would be presumed to understand these as well as the company, and he must be held to have assumed the risk incident thereto. The following authorities cited by appellee are in point, and abundantly sustain the view we have taken of the facts of the case: Jenny Electric Light & Power Co. v. Murphy, 115 Ind. 566; O'Keefe v Thorn (Pa.), 16 Atl. Rep. 737; Moulton v. Gage, 138 Mass. 390; Marsh v. Chickering, 101 N. Y. 398; Wash v. St. Paul & D. R. Co., 27 Minn. 367; Galveston, H. & S. A. R. Co. v. Lempe, 59 Tex. 19, 11 Am. & Eng. R. Cas. 201. Where a servant is employed about machinery or

anything, and special knowledge is required to know or apprehend what constitutes a defect, though open to observation, and whether its use would be dangerous, other principles apply; but here we have nothing more complicated than a horse wagon, or a plow used in the ordinary way, having repairs upon it, the danger of which can be appreciated by the driver of ordinary intelligence and prudence as readily as any other person."

Injuries Caused by Absence of Bumpers on Stock Cars-Risk Assumed.In Houston & Texas Central R. Co. v. Barrager, Tex. Sup. Ct., June 17, 1890, a brakeman was injured while attempting to couple two cars, one of which was a stock car, which like others of its class on the road, had no bumpers. The brakeman had been eighteen months in the service of the defendant. Held, that he was chargeable with knowledge that the stock cars of the road had no bumpers, and assumed the resulting risk.

Injury Caused by Third Person-Rule as to Risk of Employment, not Applicable. In Pennsylvania Co. v. Backes, Illinois Sup. Ct., May 14, 1890, it appeared that the plaintiff was in the employ of a milling company; that his business was to assist in moving cars on a scale platform, and to shovel wheat from them. While so employed, he was injured through the negligence of the railroad company. In an action to recover damages for such injuries, the court held that the rule, that a servant engaged in a dangerous employment assumes the risk of injury existing while the business was carried on in the usual way, did not apply in such a case, since the recovery was sought from a third person whose negligence caused the injury, and this, although exposure to such injury as plaintiff received, was one of the risks of his employment by the milling company.

LITTLE ROCK & FORT SMITH R. Co.

V.

CAGLE.

(Arkansas Supreme Court, June 7, 1890.)

Injury to Employe Coupling Cars-Defective Platform Scales.-A coal company built and owned a set of platform scales over which ran a spur track of the defendant railroad company. Defendant's yardmaster while coupling cars fell into a hole in the scale platform, and was injured. Held, that the railroad company was liable for the injuries.

Personal Injuries Excessive Damages. The injuries received by plaintiff necessitated the amputation of one of his arms, thus permanently lessening his capacity for labor. Held, that a verdict for $5,000, would not be disturbed as excessive.

APPEAL from Pope County Circuit Court.

Dodge & Johnson, for appellant.

A. S. McKennon, for appellee.

HUGHES, J.-Appellee sued and recovered judgment for $5,000 against appellant for an injury sustained by him while in the employ of said railroad company as yard foreman at Coal Hill, Ark., on the 17th December, 1887, by reason of a hole in the platform of the platform

Case stated.