was held admissible, the cause of the action being the falling of the gangway, causing the plaintiff's injury. Morton v. O'Connor, 85 Ill. App. 273. In Lucas v. Wattles, 49 Mich. 380, 13 N. W. 782, Judge Cooley said: "When the defendant is notified with what negligence he is charged, he is thereby informed that the circumstances which tend to show that he was or was not wanting in due care in that particular will be in issue; and he must be prepared with evidence respecting them." In Railroad Co. v. Chinsky, 92 Ill. App. 50, where the negligence charged was the negligent running of an engine without warning at a crossing, the court held it was entirely proper to allow proof that there were no gates at the crossing, for the purpose of showing the physical conditions and surroundings of the place where the accident occurred. In C. I. R. R. Co. v. Lane, 130 Ill. 116, 22 N. E. 513, in a similar case, the court permitted evidence to show that there was no flagman at the crossing, although there was no ordinance requiring that a flagman be placed there. The proof was admitted to show the jury the existing circumstances attendant upon the alleged injury. Of similar import is North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486, 29 N. E. 899. In South Chicago St. Ry. Co. v. Purvis, 193 Ill. 454, 61 N. E. 1046, the negligence charged was that the defendant carelessly and recklessly moved its street car in approaching a certain avenue. Evidence that the brake and controller were out of repair was held admissible as bearing on the question of the manner in which the car should have been run when approaching the avenue. Error is assigned to the admission of the testimony of a witness who testified as an electrical expert to the effect that the fuse was placed in a dangerous position. The testimony must have involved a knowledge on the part of the witness of the degree of intensity with. which such a fuse would explode and the volume of the attendant electric flash, which would have been within the proper province of expert testimony; but conceding that the question was one of which the jury were competent to judge without the aid of expert evidence, we are of the opinion that the admission of such testimony was not reversible error. The rule is that where the jury, upon the undisputed evidence, must have reached the same conclusion as the expert witness, or where the evidence so admitted is on a point on which the jury are entirely competent to decide in accordance with the general experience, its admission will, upon appeal, be regarded no ground for reversing the judgment. 17 Cyc. 60, and cases there cited. It is contended that the trial court erred in excluding evidence offer ed on behalf of the plaintiff in error to show that at the time of the accident the defendant in error had a policy of accident insurance which under its terms provided that the insurance company should be liable to the insured, in case of permanent disability arising from such an accident, for 12 months' total disability, and that 2 months after the accident the defendant in error freely and voluntarily settled with the company, and released and discharged it from liability under the policy, on account of the injury to his eyes, in consideration of the payment by the company of a sum equal to what he would be entitled to receive under said policy for 4 months' total disability and 2 months' 168 F.-14 partial disability. It is claimed that this evidence was admissible as tending to show that the injury was not so serious as it was alleged to be in the complaint. It is true that, if the defendant in error in his settlement with the insurance company made admission of any fact which would tend to contradict the allegations of his complaint, evidence thereof would have been properly admissible. The complaint, which was filed nearly 4 months after the accident, alleged, in substance, that the defendant in error was rendered blind for a long period of time, and that after weeeks of intense suffering and mental agony, and after treatment by the best specialists known to medical science, his sight had been partially restored, but that he was advised that his sight might never be better, and that there was danger of his total blindness as the result of such injury to his eyes. It must be apparent that a settlement made 2 months after the accident on the terms of the offered proof could have absolutely no probative value as tending to contradict in any degree the averments of the complaint. Such a settlement was no admission of any fact, and we find no error in its exclusion by the trial court. Error is assigned to the instruction to the jury on the subject of the assumption of risk. The court said: "To make a complete and valid defense on that ground, it should be proved by a fair preponderance of the evidence that the plaintiff himself was informed as to the risk there was-the nature of the danger in which he was placed for work, with that fuse located as it was. The law does not under any circumstances exact of him the use of diligence in ascertaining such defects, but charges him with knowledge of such only as are open to his observation; beyond that he has the right to assume, without inquiry or investigation, that his employer has discharged his duty of furnishing him with safe and proper instruments and appliances." If these instructions were open to objection, the error therein was fully cured by the remainder of the instructions on the same subject, in which the court said: "He is chargeable with the assumption of the risks that were necessarily incident to the employment, and with the assumption of risks which he knew about, of which he had knowledge-actual knowledge-and also with the assumption of risks which were obvious and which should have been known to him, if he had been vigilant and alert for his own sake. If the fuse was placed in a situation where it would injure him by its explosion, and there was negligence on the part of the defendant in placing it there, the question then to be decided is whether the plaintiff himself knew that it was liable to explode and flash in his eye and do him injury. If he had that knowledge, it should be considered that he assumed all the risk, and he is not entitled to compensation by reason of the injury which he suffered." We find no error for which the judgment should be reversed. It is accordingly affirmed. ROSS, Circuit Judge (dissenting). I am unable to agree to the judgment in this case. As stated in the opinion, the sole negligence alleged in the complaint was the improper and unnecessary placing by the defendant company of the fuse in the front part of the motorman's cab, at a height about as high as the motorman's face, and in a position of great danger to the motorman while engaged in the operation of the car. It appears from the record that on the trial the plaintiff was permitted, over the objection and exceptions of the defendant, to show by the witnesses Paulson and Owens that the defendant company was negligent in having a loose screw in the coupling, by reason of which one end of the wires dropped down and came in contact with the hosehanger, thereby grounding the electric current and causing the explosion which injured the plaintiff. Permitting one of the screws in the coupling to be loose was a separate and distinct act of negligence from that alleged, having no connection whatever with the placing of the fuse in the proper place in the car. That a plaintiff cannot allege one cause of action and recover upon another is, according to my understanding, well-established law; one of the reasons for which is that the defendant is entitled to be informed of the precise ground upon which the plaintiff seeks to recover, in order to prepare his defense. Not only may the introduction in this case of the improper proof of negligence, not alleged, have injuriously affected the defendant, but it very likely did do so, in view of that part of the instructions of the trial court in which the jury was told that before it could render a verdict for the plaintiff it must find from a fair preponderance of the evidence "that defendant was, as a matter of fact, guilty of some act or acts of negligence which constituted a proximate cause of the injury received by plaintiff, if you believe he was injured." "Some act or acts" of negligence might very readily have been understood by the jury as including the loose screw in the coupling which Paulson and Owens testified in their opinion caused the explosion complained of. In respect to the defense of an assumption of risks by the plaintiff, set up by the defendant, the court instructed the jury as follows: "It will be for the jury to consider the facts as proved by a fair preponderance of the evidence, and determine whether that defense has been sustained. or not. To make a complete and valid defense on that ground. it should be proved by a fair preponderance of the evidence that the plaintiff himself was informed as to the risk there was the nature of the danger in which he was placed for work with that fuse located as it was. He is chargeable with the assumption of the risks that were necessarily incident to the employment, and with the assumption of risks which he knew about, of which he had knowledgo -actual knowledge-and also with the assumption of risks which were obvious and which should have been known to him, if he had been vigilant and alert for his own sake. If the fuse was placed in a situation where it would injure him by its explosion, and there was negligence on the part of the de fendant in placing it there, the question then to be decided is whether the plaintiff himself knew that it was liable to explode and flash in his eyes and do him injury. If he had that knowledge it should be considered that he assumed all the risk, and he is not entitled to compensation by reason of the injury which he suffered." Upon the same subject the court also gave this instruction: "The defendant in this case has pleaded that the plaintiff assumed the risk attending the injuries received. You are instructed that the burden of proof is upon the defendant to establish this, as well as every other affirmative allegation pleaded by the defendant. Without considering the question whether the rule charges an employé with knowledge of defects, except with regard to such appliances or instruments as he is engaged himself in using, I think it is sufficient to say that the law does not under any circumstances exact of him the use of diligence in ascertaining such defects, but charges him with knowledge of such only as are open to his observation; beyond that he has the right to assume, without inquiry or investigation, that his employer had dis charged his duty of furnishing him with safe and proper instruments and appliances." From the foregoing it will be seen that the trial court, in more than one place, in effect distinctly instructed the jury that, if the defendant negligently placed the fuse where it did, there was no assumption of risk by the plaintiff, unless he knew the fuse was liable to explode and do him injury. In another place the jury was told that the plaintiff was chargeable "with the assumption of the risks which he knew about, of which he had knowledge-actual knowledge-and also with the assumption of risks which were obvious and which should have been known to him, if he had been vigilant and alert for his own sake.” In my opinion, the instructions are inconsistent, as well as erroneous. In one respect they are too favorable to the defendant, for I do not understand that it is essential that a plaintiff shall be "vigilant" or "alert" to discover risks, but that the law is that, to justify a finding that an employé assumed the risks of his employment, it is not essential that he shall have had absolute knowledge of such risks, if they were such that an ordinarily prudent man in his situation, by the exercise of reasonable and ordinary prudence, would have known of them. Choctaw O. G. & R. Co. v. Holloway, 114 Fed. 458-160, 52 C. C. A. 260; 26 Cyc. 1196–1203, and numerous cases there cited. For the reasons stated, I respectfully dissent from the judgment here given. ST. PAUL FIRE & MARINE INS. CO. v. BALFOUR et al. 1. CUSTOMS AND USAGES (§ 15*) - CONSTRUCTION OF CONTRACT EVIDENCE TO AID CONSTRUCTION. On application of plaintiffs, defendant delivered to them a memorandum with a "rider" attached which certified that defendant had insured them "under policy No. 7522" against war risks only on a flour cargo shipped from Portland, Or., to Japanese ports on the steamship Arabia. In fact, no policy numbered 7,522 or otherwise was executed to plaintiffs. Held, that there was a latent ambiguity in the memorandum as it read, with its reference to the policy, which it was competent to explain by parol, and that evidence was admissible to show a custom in such cases that the standard form of policy in use by the insurance company was understood to be referred to and to be a part of the contract, being retained by the company in its office, such evidence not being inconsistent with the writing. [Ed. Note.-For other cases, see Customs and Usages, Cent. Dig. §§ 3033; Dec. Dig. § 15;* Evidence, Cent. Dig. §§ 1945-1952.] 2. INSURANCE (§ 669*) — ACTION ON POLICY - INSTRUCTIONS CONCEALMENT. - AVOIDANCE FOR In an action on a marine insurance policy, the instructions, taken as a whole, held to state the correct rule as to concealment by the insured which would avoid the contract. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 669.*] In Error to the Circuit Court of the United States for the Northern District of California. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Milton Andros and F. R. Wall, for plaintiff in error. Before GILBERT and ROSS, Circuit Judges, and DE HAVEN, District Judge. DE HAVEN, District Judge. This case is before us on a writ of error, and the action is one which was brought by the defendants in error (who for greater convenience will be hereafter, in this opinion, referred to as plaintiffs) to recover from the plaintiff in error (hereinafter called the defendant) the sum of $6,100 on a general policy of marine insurance. The complaint contains two causes of action: One to recover $4,350, on account of the alleged loss of 5,000 sacks of flour carried by the German ship Arabia on a voyage from Portland, Or., to Kobe, Japan; the other to recover $1,750, on account of alleged loss of 2,000 sacks of flour shipped on the same vessel, on the same voyage, from Portland, and to be carried to Nagasaki, Japan. The complaint, in stating each cause of action, alleges that the insurance was "on account of concerned" and was on flour "lost or not lost," and that in case of loss the amount for which the same was insured was to be paid to the order of the plaintiffs; that the contract of insurance was made in San Francisco, Cal., on July 23, 1904, and was against "war risks" only; that the Arabia and her cargo were captured off the east coast of Japan on July 22, 1904, by a Russian vessel of war, and taken into a Russian port, where the cargo was condemned, under the authority of the Russian government, and confiscated as contraband of war; that thereafter, on August 10, 1904, the plaintiffs, acting for the owners of said cargo, abandoned it to defendant; that Jardine, Matheson & Co., were the owners of the flour at the time of effecting the insurance, and at the time of its seizure and condemnation. The defendant, in its answer to each alleged cause of action, denied that the insurance was "on account of concerned" or on flour "lost or not lost," or that it ever made any insurance at all upon the flour referred to in the complaint, except such as is contained in a written contract, a copy of which was attached to the answer as an exhibit, and which will be hereinafter more particularly referred to; and, as affirmative defenses, the defendant alleged: First. That, at the time of the execution of the contract referred to, the plaintiffs represented that the Arabia, with the flour on board, was then on the voyage from Portland to Kobe and Nagasaki; that this representation was false in fact; and that, when made, the Arabia and her cargo had been captured by a war vessel of Russia, and was no longer proceeding on said voyage. Second. That when the contract of insurance was made there was a material concealment on the part of the plaintiffs, in that they had knowledge of a rumor current in Portland to the effect that the Arabia and her cargo had been captured, and failed to communicate this rumor to the defendant. |