the other, made in 1880, stated that there were 25 miles of track made of iron 42 years in service, and now almost entirely worn out. The defendant objected to the admission of these reports because they were not sworn to under examination in court: because they had no reference to the place of the accident, but only to the general condition of the rails; because they could not bind the defendant as admissions; and because the information of the superintendent as to the condition of the road was derived, in part, from the reports of subordinates. But the court overruled the objections, and admitted the reports in evidence." According to this statement, the reports were printed, and in all probability had been promulgated by the company as official documents adopted by and proceeding from it. If so, this would make them utterances of, and therefore admissions by, the company. Moreover, had they not been printed and promulgated, they would have tended to show that the company had notice of the condition of its road previously to the occurrence of the injury in controversy, and would have been admissible to charge the company with such notice, under the rule as above quoted from Abbott. The reports now in question do not relate to the condition of the road, and have no bearing upon any question of notice to the company of any fact whatsoever prior to the injury; their contents consisting wholly of historical matter touching past conduct, and its consequences. So far as appears, the truth of the reports was never in any way passed upon, adopted, or affirmed by the corporation; nor were the documents printed, issued, or circulated by it as true. It surely cannot be sound law to hold that by collecting information, whether under general rules or special orders, and whether from its own officers, agents, and employes, or others, a corporation acquires and takes such information at the peril of having it treated as its own admissions, should litigation subsequently arise touching the subject-matter. As well might it be considered that any and every suitor who sends out agents to discover witnesses and collect facts touching his rights or duties regarding a pending or prospective lawsuit is to be met at the trial with the communications made by or to such agents as admissions made by himself. Can it be possible that a collector of historical materials is to be held responsible for the truth or accuracy of them, without himself having indorsed or promulgated them as true?

The case of Krogg v. Atlanta & W. P. R. Co., 77 Ga. 202, was also cited and relied upon. The evidence held competent in that case consisted of declarations made by the general manager, some of them relating to the condition of the

track, and some to the cause of the accident, which he attributed to too much elevation of the superstructure on one of the curves of the road. It would seem that the admissibility of this evidence was put by the court partly on the ground that the general manager represented the corporation in making the statements, (which, by the way, were not made as reports to the company, or any superior officer, but as mere oral declarations), partly upon the ground that they were embraced in the res gesta, and partly upon the ground that they showed his knowledge, and therefore the knowl edge of the corporation, as to the improper construction and condition of the road before the accident. We need not comment upon this case further than to observe that its facts are so different from those of the case in hand that the one cannot be a precedent for the other. An officer so high in power and position, and so comprehensive in his duties, as is the general manager of a railroad, might possibly be competent to affect the company by his admissions or declarations when like admissions or declarations proceeding from subordinate officers or agents, or from mere servants and employes, of the company, would be attended with no such admissible quality. Certainly, this distinction could well be drawn where the declarations of subordinates, etc., were made to the company some time after the transaction to which they relate, and were elicited for the sole purpose of its own information, and for use in guiding its own conduct.

age of com.

5. We see no substantial objection to the question propounded to the witness Gallagher, as set out in the sixth ground of the amended motion, the object being to show what according to the usage and practice Evidence-Usof the company, would have been the result had pany. the plaintiff reported by telegraph to the train dispatcher that the engineer was falling asleep at intervals while on his engine. In order for the jury to determine whether such a report would have been available to terminate or lessen the plaintiff's danger, it would be necessary for them to know what action would probably have been taken upon such a report. Perhaps the question to the witness could have been better shaped; but, on the whole, we think the court erred in not allowing the witness to answer it.

6. As there has to be another trial, we forbear to express any opinion on the correctness of the verdict; and, as to the grounds of the motion not already discussed, we Rules of commerely say that we have discovered in most of them pany-Knowlno error whatsoever, and in none of them anything edge of com sufficiently material to require correction. Sever- pany.

al of the grounds involve, directly or indirectly, the question

of duty, on the part of the plaintiff, to inform himself of the rules of the company, and abide by them, whether they had been communicated to him or not. We agree with the trial judge that the undertaking of the plaintiff in his written application to the company for employment, to "study the rules governing employes, carefully keep posted and obey them," did not extend to any unknown rules not promulgated to him by the company. Brunswick & W. R. Co. v. Clem, 80 Ga. 540, 541, fifth head of the opinion, The rules of a railway company stand to its employes as laws for the regulation of their conduct, and all such laws ought to be promulgated in some reasonable, practical way. If they are written or printed, each employe should either be furnished with a copy, or informed where to apply for it, or, at least, where he might call and read the rules, or hear them read. Of course, actual knowledge otherwise acquired would suffice; but it is clear to us that an employe is bound by no rule of his company which has neither been communicated to him by it, nor brought to his knowledge otherwise. Judgment in the main case affirmed; on the cross-bill of exceptions reversed.

Evidence-Admissibility of Report of Accident.-See North Hudson R. Co. 7. May (N. J.), 27 Am. & Eng. R. Cas. 151.

Evidence-Competency-Incompetency of Engineer-Record of Accidents. When an employe sues a railroad company for injuries alleged to have been caused by the negligence and incompetency of the engineer in charge of the train, he may introduce in evidence, for the purpose of proving the carelessness and incompetency of the engineer and the defendant's knowledge thereof, a book kept by the defendant's agent, containing an account of accidents on the road, showing that the engineer had been suspended for allowing a non-employe and an incompetent person to run his engine, during which time an accident occurred. O'Hare v. Chicago & A. R. Co., 95 Mo. 662.

Rules Neglect to Observe Requirements. Displaying Signals.—Where the rules of the company imposed upon the deceased the duty to display a signal when at work under a car, the fact that this duty applied to another person as well who also failed to observe its requirements does not excuse the neglect of the deceased. Central R. & B. Co. v. Kitchens, Ga. Sup. Ct., May 22, 1889.

Same Ringing of Engine Bell-Parol Proof.-In an action by a switchman to recover damages sustained through being run over in the defendant's yard, parol proof that the defendant's rules required the engine bell to be rung, is properly received when it does not appear that there is a better kind of proof of such regulation. Independently of rules prescribed by the company, the law would imply a duty to give a signal of the movement of an engine under the circumstances. Sobieski v. St. Paul & D. R. Co., Minn. Sup. Ct., July 2, 1889.

Same-Parol Proof of Rule Attached to Applications for Employment.— Where a rule of the company was printed on applications for employment, and was required to be signed by applicants obtaining positions, and was supposed to be known to them, evidence of the existence of the rule cannot be admitted except by producing the writing itself, or accounting for

its absence, and showing that the deceased had signed it and knew of its existence. Missouri Pac. R. Co. v. Lamothe, Tex. Sup. Ct., Feb. 14, 1890. Same-Admissibility of Book Containing Rules.-Where the evidence is suficient to show that the rule book offered, contains the rules of the company in force when the employe was injured, the book is admissible, without first proving that the employe had knowledge of the rules which it contained. His knowledge was matter for either prior or subsequent proof. Parker v. Georgia Pac. Ry. Co., Ga. Sup. Ct., Oct. 28, 1889.

Same-Duty of Company to Prescribe Rules Instructions. Where the complaint contained no allegation that a railroad company had neglected to prescribe suitable rules and regulations for the government and management of its trains, employes, and business, it was error in the court to charge the jury in relation to such duty. Woodward v. Oregon Ry. & Nav. Co., Or. Sup. Ct., Jan. 6, 1890.

Same-Applicability-Displaying Signal-Car-Repairer.-Plaintiff, a car repairer, was injured by an engine backing against a moving car under which he was at work in the company's repair yard. The rules of the company required that car repairers should protect themselves by placing a blue signal on the draw-head, platform, or steps of cars standing on the main track or side track. Held, that as the car under which plaintiff was at work was not on the main or side track but in the repair yard, the rule was not applicable, and that a general verdict in his favor must stand, notwithstanding special findings that the plaintiff failed to exhibit the signal. Quick 2. Indianapolis & St. L. R. Co., Ill. Sup. Ct., Oct. 21, 1889.

Same Getting Upon Engine in Violation of. The deceased on the night of the accident was detailed to watch the track for a certain distance and to give warning of any signs of danger that he might discover. His orders were peremptory to be vigilant and to walk backwards and forwards over the track between the points indicated. He signaled to a construction train to stop and got upon the locomotive. The locomotive was derailed by a washout on the roadbed. The rules of the company provided that "no person shall be permitted to ride on an engine without an order from the superintendent, or superintendent of motive power, except the engineman, fireman, road foreman of engines, trainmasters, assistant engineers and supervisors on their respective divisions, and conductors in discharge of their duties." The rules were printed and copies had been duly furnished to section-foremen. The deceased had been in the employ of the company as a section hand for many months prior to the accident, and presumably was acquainted with the rule quoted. Held, that the deceased being chargeable with notice of the rules and being on the engine contrary to the rules and his instructions, no recovery could be had for negligence resulting in his death, and that it was immaterial that those in charge of the engine did not object to his getting upon it. Shenandoah Valley R. Co. v. Lucado's Administrator, Va. Sup. Ct. App., Dec. 5, 1889.

Same-Omission to Prescribe Duty of Employe-Evidence of Usage.Where the rules furnished by the company to brakemen do not contain any regulations concerning the duty of brakemen to obey the orders of the conductor, a witness may testify as to what he knows from his experience on various roads concerning the duty of brakemen in that respect. Gorman v. Minneapolis & St. L. R. Co., Iowa Sup. Ct., Oct. 16, 1889.

Same-Construction-Duty to Report Defect. Where the rules of the company required telegraph operators "to report defects in roads, or bridges, or obstructions of any kind wherever met, to the superintendent, and, if possible, to the nearest section master or bridge foreman," it is their duty to make reports as required, whether they are requested to do so by any other employe or not, if they know of the existence of the rules. Hall v. Galveston, H. & S. A. R. Co., 39 Fed. Rep. 18.

SOUTHERN KANSAS R. Co.

ย.

ROBBINS.

(Kansas Supreme Court, February 8, 1890.)

Deposition-Admissibility-Absence of Party.-A deposition taken in the absence of the opposing party, a short distance from the office stated in the notice, will not be suppressed, where it appears that on the same day the counsel for the opposing party appeared, and by consent of all the deposition was opened, and the witness recalled and cross-examined.

Negligently Causing Death-Reputation of Deceased for Carefulness.— Where one of the issues to be tried is whether the person injured was in the exercise of ordinary care, and there were eye witnesses as to his conduct at the time of the injury, the opinions of experts as to whether he was generally a careful and skillful man is not competent evidence.

Same-Evidence-Practice of Others in Climbing Ladder.-Evidence of the practice and usage of others in climbing the ladder of a box car when a train is in motion, such as deceased fell from, is not admissible to prove due care on his part at the time of the accident.

ERROR from District Court, Franklin County.

George R. Peck, A. A. Hurd and Robert Dunlap for plaintiff in error.

H. P. Welsh and John W. Deford for defendant in error.

Facts.

JOHNSTON, J.-On June 30, 1886, John F. Patterson was employed in the service of the Southern Kansas Railway Company, as a passenger conductor. At that time a Sunday school assembly was in session at Ottawa, and the railway company were running excursion trains. from several points in the state to that place. On the morning of the day mentioned, Patterson went from Ottawa to Lawrence in charge of a passenger train, where it was loaded with excursionists bound for the assembly at Ottawa. On the return trip he stopped at Baldwin City, where there were a number of people intending to join the excursion to Ottawa, and, being short of passenger cars to accommodate them, the company had placed two cabooses and a box car, temporarily arranged for passengers, on a side track, and directed Patterson to attach them to the rear of his train, for the use of passengers. There is testimony to the effect that Patterson was directed to place the cars in his train in the same order that they were standing,-first a caboose, then the box car, and then another caboose; and this was the order in which they were attached to the train. After the train left