Same-Injuries-Use of Improper Language by Counsel in Argument.Where a minor who was employed by the defendant as a coal-heaver, was injured while coupling cars, and claims that he was placed on duty as a switchman, a position for which he was incompetent, the plaintiff's counsel should not be allowed in his closing argument to say that it is contrary to public policy for indiscreet minors like the plaintiff, who had no means of support outside of his labor, to be employed in dangerous positions, and that "such a policy is calculated to increase pauperism, and means that you and I and the country have them to support. Gulf C. & S. F. R. Co. v. Jones, Tex. Sup. Ct., Mar. 5, 1889.

Employment of Inexperienced Person of Full Age. Where the deceased at the time of the accident was nearly 22 years of age, and it did not appear that he was not physically and mentally qualified to learn and perform the duties of a brakeman, the mere fact that he was inexperienced is not sufficient to establish negligence in employing him. Gorman v. Minneapolis & St. L. R. Co., Iowa Sup. Ct., Oct. 16, 1889.

CARROLL V. EAST TENNESSEE, VIRGINIA & GEORGIA RY. Co. EAST TENNESSEE, VIRGINIA & GEORGIA RY. Co. v. Carroll.

(Georgia Supreme Court, September 25, 1889.)

Master and Servant-Contributory Negligence-Failure to Keep Engineer Awake-Instructions. Where the want of care and diligence imputed to the plaintiff, who was a fireman upon a locomotive, relates to his failure to keep the engineer awake, or take other measures for his own safety, and the imputed negligence reaches back some hours, a paragraph of the court's charge to the jury, which might be understood by them as restricting the inquiry to a much shorter period, is erroneous; and for the court, in the same paragraph, to specify certain conduct of the fireman, and instruct upon it in a way to imply that the same would not be negligence, is additional error, the question whether such conduct would or would not be negligence being for the jury.

Same-Duty of Fireman. The measure of risk which a fireman ought to incur by remaining upon a locomotive, and assisting a sleeping engineer to run the train, is that only which his duty and obligations to the company, under all the circumstances, impose upon him. If he subjects himself to any greater risk, and is thereby injured, he is not without fault, and can

not recover.

Same-Evidence-Admissibility of Reports to General Manager.-Reports to the general manager of the company touching the facts, circumstances, and results of a railway accident, and who was to blame therefor, made several days after the event, by the superintendent and the conductor, supported by the affidavit of the latter and of several other employes, are not admissible in evidence to affect the company, whether such reports were exacted and made under standing rules requiring the same, or under special orders for the particular occasion; no question of notice to the company being involved in the controversy.

Same-Relief from Dangerous Position-Evidence. It being in question whether a fireman could, by reporting the facts of his situation to an official of the company by telegraph, have obtained relief from his peril, evidence is admissible to show that, under the usage and practice of the company in like or analogous circumstances, relief would probably have followed in a specified way, and by the use of specified means.

Same-Rules of Company. An employe of a corporation, though obligated in writing, as terms of his employment, to "study the rules governing employes, carefully keep posted, and obey orders," is not bound by rules, as such, of which he is ignorant, and which have never been promulgated to him by the company.

ERROR from Superior Court, Bibb County.
Dessau & Bartell for plaintiff.

Bacon & Rutherford for defendant.

BLECKLEY, C. J. 1. The case was tried at the November adjourned term, 1887. and the motion for a new trial was made during the same term; the hearing of the Case stated. motion being fixed by order for a day in vacation, and then continued to the following May term. Other continuances took place during the May term, each of them being to a particular day. One of these days was June 30th, on which no action was taken with reference to the motion. On July 2d the motion was taken up, and continued to a subsequent day in the same month, and on the latter to a still later day, when it came up for a hearing, and the respondent moved to dismiss it because no continuance from the 30th of June to the 2d of July had been granted or entered. The motion to dismiss was properly overruled, because, after the May term of the court was reached by duly continuing the motion from the November adjourned term, no further continuance was requisite in order to keep the matter in court so long as the May term lasted; and that term, as we understand the record, was still in progress when the motion for a new trial was finally taken up and decided. The rule as to continuance from day to day in vacation has no application to what transpires in term time. Once in court the motion remains there until heard or otherwise disposed of. Fixing a time for the hearing, or entering continuances from day to day, is no disposition of it.

2. The court committed no error in granting the motion for a new trial on the fourteenth and seventeenth grounds of the amended motion. The most vital question Contributery in the case was one of fact, to-wit, whether the plaintiff was negligent in remaining upon the engine, and exposing himself to risk, without taking more active and diligent measures to keep the engineer awake, or urging the conductor to do so, or telegraph

negligence

Sleeping engineer.

ing to the master of trains or some other officer to interpose. That the engineer was falling asleep at his post was known to the plaintiff, who was his fireman, some time before the collision happened, and consequently the question of his negligence should not have been restricted in point of time to the moment of collision, and some minutes previous thereto. The charge of the court in the fourteenth ground of the motion was as follows: "If the jury should believe, from the evidence in the case, that the train on which the plaintiff was as fireman was approaching another train on the same track; that the engineer of plaintiff's train was at some distance from the latter train, at his post and awake, discharging his duty; that the plaintiff did not know of the approaching train; and that the plaintiff, having finished firing his engine, took his seat on the place assigned to him, and then, discovering a train ahead, and that his engine was not slacking, and that the engineer was asleep, then I charge you that if the plaintiff was injured by a collision which he could not have avoided by the exercise of all reasonable care and ordinary diligence, in the causing of which no fault was committed by or attri butable to him, he may be entitled to recover." This might have been understood by the jury as virtually throwing out of the case any and all negligence the plaintiff may have been chargeable with until just before the collision took place, and was, besides, an intimation to the jury that the conduct of the plaintiff, if as described in the charge, would not amount to negligence. But for this instruction, the jury might have thought, in view of what had already transpired within the plaintiff's knowledge showing the tendency of the engineer to go to sleep, that it was not enough for the plaintiff to see that he was awake, and then seat himself at the place assigned to him, but that he ought to have continued to see to it and assure himself that the engineer kept awake. The charge seems obnoxious to both objections which we have indicated, viz., a too narrow restriction in point of time, and a too wide latitude in drawing to the court and taking from the jury a decision of the question of negligence.

risk by remaining on

3. The request of counsel for the defendant to charge the Jury as set out in the seventeenth ground of the motion for a new trial was as follows: "If you find that the that he subjected himself to any greater danger or said Carroll was an employe of the defendant, and Assumption of risk than his duty and obligations to said company engine. required, and that by reason of said increased danger or risk he has been injured, then the court charges you that he cannot recover." In view of the testimony in the record, we agree with the court in thinking that this

charge should have been given in the terms requested, and without any qualification. If the plaintiff took any improper risk, it was by remaining upon the engine without doing more than he did in seeing that the engineer kept awake, or without appealing to the conductor or reporting by telegragh, as it was contended he should have done. If he was in fault in either of these respects, he was negligent, and, if negligent, he could not recover. The court, in giving the request in charge to the jury, qualified it by adding, after the word" required," the phrase," by any rules, which rules had been communicated to him." This qualification narrowed the charge to a violation of the rules; whereas the plaintiff's duty to protect himself against his sleepy engineer might be as complete and obligatory without rules on the subject as with them. The jury might have thought that, if he had common sense, he ought not, under the circumstances, to have remained passively upon the engine, with knowledge that the engineer was going to sleep at intervals while in charge of his engine. Due care in keeping the engineer awake, or, if that could not be done, by ceasing to aid in running the train, involved not only the safety of the fireman, but that of others, and also the preservation of the company's property from wreck and destruction.

report to gen

eral manager.

4. We turn now to the cross bill of exceptions, in adjudicating upon which we find that the court should have granted a new trial on two grounds, to-wit, the second and Evidence-Ad- third of the amended motion. By a standing rule missibility of of the company, as may be inferred, reports by its officers and employes were to be made to it of the facts and circumstances attending accidents. This accident occured on the 8th of February, and on the 18th of that month the superintendent prepared a report to the general manager on the subject. On the following day, the 19th, a report by the conductor, supported by his affidavit and that of several others, embracing engineer, fireman, flagman, brakeman, and another conductor, the plaintiff himself being one of the affiants, was made, and, as we infer, was transmitted through the superintendent, and, along with his report, to the general manager. The report of the conductor cast the whole blame on the engineer, treating all the rest of the crew as faultless. These documents were admitted in evidence on behalf of the plaintiff, over the defendant's ob jection. Having had their origin many days after the happening of the events to which they related, they were no part of the res gesta of the cause of action on trial, but were mere narrative touching past occurrences. Consequently they do not fall within the principle of the case cited from 66

Mich. 390, 31 Am. & Eng. R. Cas. 399; Keyser v. Chicago & G. T. R. Co., decided by the supreme court of Michigan in June, 1887. Mechem, Ag. $714, 715; Code, § 2206. Nor is Carlton v. Western & A. R. Co., 81 Ga. 531, (October term, 1888), a decision upon the question of their admissibility. As far as that case goes is to suggest that they were not confidential communications, but, really, even that question was not involved so as to render a decision of it necessary. Upon principle, we think it clear that these reports were inadmissible; and several authorities which we deem sound are to that effect. In Langhorn v. Allnutt, 4 Taunt. 511, it was held that letters of an agent to a principal, in which he is rendering him an account of the transactions he has performed for him, are not admissible in evidence against the principal. A like ruling was made in Reyner v. Pearson, Id. 662. See, also, Kahl v. Jansen, Id. 565. "An official statement or report received by the corporation or board from one acting as officer, and accepted and adopted by them, is competent evidence against the corporation, and those bound by its acts, without further proof of the appointment of the officer; but a report to a corporation or board is not made admissible in evidence against it by the mere fact that it was received and accepted by it, except for the purpose of charging it with notice of the contents.' Abb. Tr. Ev. p. 51, § 62. "An admission by a corporation of a fact or liability, duly and properly made, is, of course, evidence against it; but a municipal corporation, by accepting, that is, by receiving, the report of a committee of inquiry, does not admit the truth of the facts stated therein; and such a report, though accepted by the vote of the corporation, is not admissible in evidence against it." I Dill. Mun. Corp. (3d Ed.) § 305, (earlier editions, 242.)

The case of Vicksburg & M. R. Co. v. Putnam, 118 U. S. 545, 27 Am. & Eng. R. Cas. 291, was cited and relied on in behalf of the plaintiff. The opinion was delivered by Mr. Justice GRAY, who devotes but a single sentence to the question, merely saying: "The reports made by the superintendent to the board of directors in the course of his official duty were competent evidence, as against the corporation, of the condition of the road." Looking to the statement of facts prefixed to that opinion, we find it represented that "the plaintiff offered in evidence two printed reports made by the superintendent of the road to the board of directors, -one in 1877, which stated that, in the portion of the road. where the heaviest traffic was done, there were about 35 miles of iron that had been run over for more than 25 years, and required the closest attention to prevent accidents; and