184 Ill. 9, 56 N. E. 337; Memphis St. Ry. Co. v. Haynes, 112 Tenn. 712, 81 S. W. 374; St. Louis & S. W. Ry. Co. v. Gill (Tex. Civ. App.) 55 S. W. 386; C., B. & Q. R. R. Co. v. Krayenbuhl, 65 Neb. 889, 91 N. W. 880, 59 L. R. A. 920. In Smith v. Cummings, supra, the trial court assumed to instruct the jury that certain facts, if established, constituted prima facie ownership in the plaintiff. This court held that the instruction was prejudicial If, as matter of law, the facts stated had constituted prima facie ownership in the plaintiff, this court would not have reversed the judgment. That, in our opinion, is the controlling distinction between that case and the case at bar. error. it came in contact with a hammer it would explode; that it was the custom of the plaintiff and other employees of the defendant, when engines were left in the yard for repairs, to go on the same during the lunch hours; that this custom was well known to the defendant, its agents and employees, and there was no rule forbidding it; that it was gross negligence on the part of the defendant to allow a torpedo, loaded with a dangerous explosive, to remain on the engine, and not to notify the plaintiff and the other employees at work in the yards of its presence thereon. On general demurrer plaintiff's action was dismissed, and the judgment of dismissal was affirmed on appeal. Williams v. Southern R. Co., 144 Ga. 565, 87 S. E. 771 (1916). VIII. Motor car fuse. Plaintiff was employed as a motorman on an electric train running between the cities of Seattle and Tacoma. His duties required him to ride in a small compartment partitioned off in front of the front motor car. In the apparatus used for lighting and heating the cars of the train, there was used what was known as a "heating and lighting fuse," one end of which was connected with the lighting and heating wire of the car. The fuse was filled with a certain kind of powdered substance used for the purpose of producing an explosion in case an unusual current of electricity passed through it. Plaintiff was injured by the explosion of this fuse. In his complaint to recover damages on account of the injuries, he alleged that this fuse, or "plug," as it was commonly called, was carelessly, negligently and unnecessarily placed by defendant in the front part of the motorman's cab, and at about the height of the motorman's face, and in a position of great danger to the motorman while engaged in the operation of the car. The complaint further alleged that while the plaintiff was in the discharge of his duties on the car, the electric fuse or plug exploded with great force and violence, accompanied with a powerful flash of electricity immediately in front of his face, blowing his face and his eyes full of the powdered substance contained therein, causing him much physical and mental pain, and rendering him blind for a long period of time. On the trial the jury returned a verdict for the plaintiff for the sum of $2,000, and the judgment entered thereon was affirmed on writ of error sued out by the defendant. Puget Sound Electric Ry. v. Van Pelt, 168 Fed. 206 (1909). IX. Signal fusee. Plaintiff was employed by the defendant railway company as a motorman and was engaged in running one of its electric cars. His car left one In Ryan v. Railroad, supra, the trial court assumed to instruct the jury concerning the weight that should be given to certain facts. This court reversed the judgment. These cases are clearly distinguished from the instant case. So are the cases cited by defendant from other jurisdictions. A close analysis of the instruction to which objection is made discloses the fact that only such conduct or omissions of defendant are said to constitute negligence as should be declared negligent as matter of law. The jury were told in substance that if they believed from a preponderance of the evidence that it was the custom in defendant's shop, and other shops engaged in similar work, to use certain precau of the termini of the road late at night and was followed by another car, due to leave the same station 10 minutes later. The power being weak, he found, when a short distance from a town on the line, that he would have to stop, and to protect his car from a rear end collision from the car following, he lighted a fusee in the usual way, intending to throw it off as a signal. It exploded, lacerating his face and injuring his left eye. There was no evidence tending to prove that the defendant had any notice, either actual or constructive, of any defect in the fusees supplied to plaintiff's car and from which plaintiff selected the one that exploded, and there was no evidence of any defect in the fusee in question that might have been discovered by reasonable inspection. It was held that the doctrine of res ipsa loquitur was not applicable to the case and that the defendant was not liable. Eaton v. St. Louis & N. E. Ry. Co., 173 Ill. App. 431 (1912). X. Lime. Plaintiff alleged in his petition that while in the employ of the defendant railroad company he was ordered by the defendant and its servants superior in authority to him to mix quantities of lime and water for the purpose of making whitewash, to whitewash the outbuildings of the defendant; that while so engaged, and without any warning, the lime exploded, throwing quantities of lime and water in his eyes, and from the effect of which he lost the use of one eye, and the other was materially injured; that defendant knew that lime and water when confined in mixing would explode; that plaintiff, being only 19 years of age, and having but little or no experience in handling or mixing lime and water, did not know it would explode; that defendant and its servant in charge of him knew of said danger, and failed to warn or instruct him, by reason of which he was injured. The trial court sustained a demurrer to plaintiff's petition, and, upon appeal, the judgment was affirmed, the court holding that plaintiff had assumed the risk of the explosion. "The use of water and lime in making whitewash,' the court said, "and the effect of water on lime when applied to it, are of such general character and so universally accepted, and are of such commonplace and everyday transactions, that any person 19 years of age who had ordinary intelligence and capacity would and ought to know and understand the effect of mixing lime and water, and to take notice of this common and universal and natural law." Bollington v. Louisville & N. R. Co., 125 Ky. 186, 100 S. W. 850, 8 L. R. A. (N. S.) 1045 (1907). E. J. tions (specifically naming them), and "further believed from a preponderance of the evidence that such precautions were necessary in the exercise of ordinary care, and that a reasonably prudent person under like conditions would in the exercise of reasonable care, have exercised such precautions," then it was the duty of the defendant to adopt such precautions, and if it did not do so, and an explosion occurred resulting in death, the defendant company would be negligent. (Italics ours.) It is quite manifest from the analysis we have made that the court did not unqualifiedly instruct the jury that certain conduct or omissions of defendant would constitute negligence. The jury were given the right to determine whether the precautions referred to were necessary in the exercise of ordinary care. If the jury found they were necessary, then they were instructed that the failure of the defendant to adopt such precautions would constitute negligence. The language in italics so qualifies the entire instruction as to leave to the jury the determination of every fact and the weight that should be given to it in arriving at their verdict. We find no error in the record. The judgment of the trial court is affirmed, with costs. MAHER v. CHICAGO, MILWAUKEE & ST. PAUL RY. CO. [United States Circuit Court of Appeals, Seventh Circuit, December 29, 1921.] 278 Fed. 431. 1. Pleading-Variance-Cause and time of falling of door of railroad car. In an action by a consignee against a railroad company for injuries alleged to have been received from the falling of a car door, due to its defective condition, while plaintiff was engaged in unloading the car, proof that the door fell while plaintiff was pushing it shut preparatory to leaving the work temporarily did not constitute a variance. 2. Pleading-Variance-Time for objection. The question of variance should be raised in the trial court so that the party may have an opportunity to amend if he desires to do so. 3. Carriers-Duty as to condition of car delivered to consignee for unloading. It is the duty of a carrier, when delivering a loaded car to a consignee to be unloaded by him, to furnish a car that is in a reasonably safe condition to be used for the purpose intended. CASE NOTE. Injury to shipper or consignee or their employees while loading or unloading shipment due to defective condition of railroad car or its appliances. I. Gates and doors, 371-379. A. Sliding box car doors, 371-375. C. End gates of gondola cars, 376- II. Negligently repaired hole in car III. Loose stake pockets on flat car, 380-381. IV. Insecure grab iron, 381-383. V. Worn unloading device on coal car, 383. VI. Defective brake appliances, 384387. Cross-references. This annotation is supplementary to the note in 7 N. C. C. A. 1003-1020, which treats of the liability of railroad for injuries to employees of a consignor or consignee caused by defective appliances. I. Gates and doors. A. Sliding box car doors. In Ladd v. New York, N. H. & H. R. Co., 193 Mass. 359, 79 N. E. 742, 9 L. R. A. (N. S.) 874, 9 Ann. Cas. 988 (1907), the plaintiff sought damages for a personal injury sustained by him while unloading hay consigned to his employer from a car standing upon the tracks of the defendant railroad, caused by a defective door of such car. Liability was resisted by defendant upon two grounds: (1) that the car belonged to another railroad company; (2) that plaintiff's employer knew of the defect and the danger consequent thereupon. The trial court directed a verdict for the defendant. Upon appeal it was held that the defendant, owing a duty to the consignee and his employees, including the plaintiff, to use ordinary care to provide safe conditions for unloading the consignment, had adopted the car furnished by the initial carrier as its own, assuming full control thereof, and hence was responsible to plaintiff for its defective condition. This liability was definitely fixed, the court added, by the evidence 4. Carriers Negligence Sufficiency of evidence of defects in door of freight car. That the door on a railroad car, by which a consignee was injured while unloading the car, was made of boards placed vertically with a cleat across the top only, that it was hung on a rail by hooks without support at the bottom, that it was without a handle and was difficult to open and that the hanging apparatus was in such condition that one of the supporting hooks could jump off the rail, would justify a finding that defendant failed to furnish a door that was in a reasonably safe condition. 5. Witnesses-Production as vouching for truth and accuracy of testimony. By producing witnesses a party may be said to vouch for their integrity but not for their powers of observation and the completeness and accuracy of their inemories. 6. Evidence-Sufficiency-Failure of a party's witnesses to sustain his testimony. While a party may be justly criticized for suppressing testimony, he should not be prejudiced in his right to have the truth of his case passed upon by the triers of fact because he produces all the credible witnesses of whom he has knowledge, though they fail to support him in all particulars. The defendant contends that the injury of the plaintiff is due directly to the negligence of Robinson, his employer, in putting the plaintiff to work upon this car, having himself a full knowledge of the existing defect and danger, and failing to give plaintiff any warning thereof. But this argument overlooks the fact, which as we have seen, the jury might have found, that the defendant had itself invited not only Robinson but his men, including the plaintiff, to come to this car and remove the hay therefrom. Robinson owed no duty to the defendant to warn his servants of the danger to be apprehended if, as turned out to be the case, it should neglect to repair the defective condition to which he had called the attention of its servant. * * * Robinson's original duty to the plaintiff was no greater than was found in Dunn v. Boston & N. St. Ry., 189 Mass. 62, 75 N. E. 75, 109 Am. St. Rep. 601. (No duty to inspect or repair.) So far as it may have been increased by his actual knowledge of the existence of the defect and danger, this must be considered in connection with the notice which he had given to the defendant and the opportunity which the defendant had had to make proper repairs. The jury might have found that the defendant's negligence continued up to the time of the injury to the plaintiff, and that the defendant was itself the last wrongdoer both in point of time and in the chain of causation. In our opinion the case should have been submitted to the jury." Louisville & N. R. Co. v. Burch, 155 Ky. 245, 159 S. W. 782 (1913), was an action to recover damages for injuries to plaintiff's arm, alleged to have been caused by the negligence of the defendant railroad companies in furnishing for the use of the plaintiff's employer a freight car with a defective door. The car was the property of the defendant L company, and was furnished to plaintiff's employer, a coal company, at a point on the line of the defendant C company. It was plaintiff's duty to prepare the car for load |