129 Iud. 327, 27 N. E. Rep. 741; Railway Co. v. Buck, 116 Ind. 566, 573, 19 N. E. Rep. 453; Railway Co. v. Roesch, 126 Ind. 445, 447, 26 N. E. Rep. 171; Same v. Lang, 118 Ind. 579, 583, 21 N. E. Rep. 317. But, while the employee is thus held to diligence for his own safety, he has the right to repose confidence in the prudence and canton of his employer, and may rightfully presume that the em yer, with respect to the same object has performed his duty, has invested all places and situations with such safeguards as orary prudence requires. Railroad Co. v. Rowan, 104 Ind. 88,

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E. Rep. 627; Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. Rep. 380; Railroad Co. v. Duel, 134 Ind. 156, 33 N. E. Rep. 355, and cases cited. The evidence adduced is not of a character to warrant this court in saying, as a matter of law, that the risk of the open wires was assumed by appellee. There was evidence that there were two light-colored wires, "less than telegraph wires," drawn over,and four inches above, a sandy roadbed. Appellee was a rear-end brakeman on a through freight train, and his post of duty in travel was on top of his train, or in the cupola of the caboose. The line of wires was twelve inches out from the outer walls of the moving freight cars, and not observable from the top of the train. Appellee had passed the wires twenty-five or thirty times in daylight, but before the accident had not been on the ground at any point along the uncovered wires east of the crossing, and did not know they were uncovered, and believed they were boxed. The wires were boxed, with boards about eighteen inches wide on top, and six inches high, for a distance of 300 feet east and 360 feet west of the crossing. The boxed wires on the east side were on the south side of the main track for the first 300 feet from the crossing. Appellee had been several times on the station platform at the crossing, and had observed the boxed wires on the south side of the main track, but had not observed that the boxing ceased 300 feet to the east, or that at that point the wires crossed the main track to the north side, and proceeded thence eastward to the distant signal uncovered, and had not been notified, and did not know, that such was the fact. The accident occurred about midnight. Appellee walked for some distance on the north side of the main track, along the exposed wires, about a rod distant, with a lighted lantern in his hand, to where the car stood that he was directed to couple to his train. He, and the backing train, arrived at the standing car about the same time. He signaled twice with his lantern to back slowly. His mind was absorbed in the moving train, and the exact moment when he must act to make the coupling. His line of vision at the time and place of the injury was necessarily above the wires. It is

clear that upon these facts the question was with the jury to say, upon the whole evidence, whether appellee had assumed the risk of the open wires. Railway Co. v. Grames, 136 Ind. 39, 34 N. E. Rep. 714; Car Co. v. Parker, 100 Ind. 181, 197, and cases cited; Rush v. Mining Co., 131 Ind. 135, 30 N. E. Rep. 904; Evans v. Express Co., 122 Ind. 362, 23 N. E. Rep. 1039. Appellant cites numerous cases in support of its contention that the risk was an assumed one. But it must be borne in mind that the rule contended for is relative, and not absolute, and its application must be determined by what constitutes reasonable and ordinary care, under the facts of each particular case. In the case of Railroad Co. v. Ostman, 146 Ind. 452, 45 N. E. Rep. 651, the plaintiff's decedent was killed by a cattle chute that stood within thirteen inches of the outer wall of a passing locomotive cab, and eight and one-half feet high, with board wings and gates, and could be easily seen by the trainmen for a half mile in either direction. The deceased, as a locomotive fireman, had passed the chute twice each week for sixteen months, and had frequently aided in switching cars by it. At the time of his injury he was engaged in switching, and having carelessly thrust his head out of the cab window, and thus riding with his face to the rear, he collided with the chute and was killed. In the case of Pennsylvania Co. v. Finney, 145 Ind. 551, 42 N. E. Rep. 816, the injured party, from inattention, was knocked off the train by a water crane that stood seventeen feet high and four feet from the track, and which he had passed almost daily for six months, and could see it for half a mile from either direction. In the case of Paper Co. v. Webb, 146 Ind. 303, 45 N. E. Rep. 476, the plaintiff was injured by being caught by a projecting oil cup and clutch on a revolving shaft. The shaft and projecting clutch were fully exposed. He had worked in the mill about two years, and about the particular machine for about three weeks, and had oiled the very clutch that caught him. In these and other cases cited, of similar import, the court held that the servant had assumed the risk, but the material facts in these cases are not analogous to the facts under consideration. The danger in these cases was easily apparent, was immediately present, and stood out so prominently as to press observation upon the servant of ordinary intelligence. We do not mean to say that, to charge the servant with an assumption of the risk, the evidence of danger must be as strong and cogent as it appears in these cases; but we do say that the presence of danger must be obvious from such appearances as will put a man of ordinary prudence and caution upon his guard, or the servant will be excused. Duty had taken appellee along the exposed wires whereby he was hurt. He knew that the

distant signals of interlocking switch devices were operated from the tower by wires, but, according to his testimony, his observation had been that the wires were covered through switching yards of other roads, and left exposed where no car handling was required. East of the crossing, and near the station platform, where he had been a number of times in daylight, the wires with which the eastern signals were operated were constructed on the south side of the main track, and boxed with boards from the crossing eastward for about eighteen rods. If any presumption will arise from this situation, it will be that the wires continue on the south side of the main track to the distant signal. Surely, under the evidence adduced, there could be no presumption arise that at a point about eighteen. rods east of the crossing the wires ceased to be boxed, and there crossed from the south to the north side of the main track, and thence along the north side to the signal. Furthermore, it may well be doubted, if a person of ordinary vision, standing on the station platform, can see two light-colored wires, "less than telegraph. wires," beginning 300 feet away, and stretched four inches above a sandy background, and, if possible to see them, whether the situation was such as to attract the attention of a man of ordinary caution to the fact. Appellee was not bound to know of latent perils, nor was he required to hunt after them, but he is exonerated if he heeded such cautionary manifestations as would put a ordinary prudence and caution upon inquiry. We think it is clear that the question of appellee's knowledge of the exposed wires, and his means of knowledge, by the exercise of reasonable caution, was a question for the jury.

Appellant insists that the court erred in denying it the right to show that other first-class roads had their interlocking switch devices constructed in the manner similar to the one in controversy. The court permitted appellant to give evidence touching the practice of railroads generally in the construction of interlocking switches, but denied it the right to show particulars in construction, other than upon the line of appellant's road. In this the court committed no error. Railroad Co. v. Mugg, 132 Ind. 168, 175, 31 N. E. Rep. 564; Railway Co. v. Wright, supra; Bassett v. Shares, 63 Conn. 39, 27 Atl. Rep. 421; Colf v. Railroad Co., 87 Wis. 273, 276, 58 N. W. Rep. 408.

The court permitted, over appellant's objection, one Harvey, who was foreman of the switch crew at North Judson, and had worked over and about the open wires in question, to testify that prior to appellee's injury he repeatedly notified appellant's general superintendent that the exposed wires within the yard limits at North Judson

were very dangerous to the men at work around and over them, and also to state the superintendent's reply. This decision of the court is fully supported by the case of Railway Co. v. Wright, 115 Ind. 393, 16 N. E. Rep. 145, and 17 N. E. Rep. 584, and cases there cited.

Appellant's rules 607 and 608 for the government and information of employees were offered in evidence. Appellant's learned counsel say in their brief: "These rules were offered in evidence for the purpose of showing that it was the duty of Bundy to examine the condition of all machinery, tools, tracks, cars, engines, or whatever he might undertake to work with, before he made use of the same, and ascertain their condition, for his own safety." The law required of Bundy such inspection and examination of all places and appliances where and with which he was put to work as a man of ordinary care and caution would make in a like situation, and it can hardly be claimed that the rules refused enjoined upon the employee a higher degree of care. Bundy, appellee, went into the service of the company in December, 1891, and the rules in question were promulgated in September, 1893. The evidence tended to show that the rules were printed on time-table No. 28. Bundy, on crossexamination, denied that he ever received a copy of the rules, and claimed he never had, as his own, a copy of time-table 28, but some times got the conductor's, and had access to copies of said table to be found in the caboose. No effort was made by appellant to prove that a copy of the rules was ever given or tendered to Bundy, or his attention directed to them, except as was shown by his crossexamination, with result as indicated above. Neither was there any effort made by appellant to prove that Bundy had violated any provision of the rules offered. Railway Co. v. Mugg, 132 Ind. 173, 31 N. E. Rep. 564. Without some further evidence that appellee had received the rules, or had knowledge of their contents, the court was warranted in excluding the evidence.

Another reason for a new trial is that the court erred in refusing to give to the jury certain instructions, and in giving of its own motion certain other instructions. Appellee claims that the instructions asked by appellant and refused are not in the record, because prematurely presented. The recitals of the clerk in the record show that (December 4, 1896) "thereupon, before the argument, the defendant now tenders to the court, and asks the court to give to the jury at the proper time, certain written instructions, which are by the court refused, and the defendant separately except to each instruction refused to be given by the court; and said exceptions are indorsed on the margin of each of said instructions, and said

exceptions are respectively signed by the court, and are thereupon ordered filed and made part of the record, without a bill of exceptions, and are in the words following: There follow twenty-one instructions, on the margin of each of which are these words, "Refused and excepted to this December 4, 1896. John H. Gillett, Judge;" and upon the same day the further entry and recital, "And the jury having heard the remainder of the evidence, and argument of counsel, the court now proceeds to instruct the jury, and each party at the time now excepts to each instruction given by the court to the jury, and their respective exceptions are noted upon. the margin of said instructions, and respectively signed by the court, which instruction so given by the courts, and the said exceptions. thereto, are now likewise ordered filed, and made a part of the record herein, and the same are in the words following, to wit." Next follow thirteen instructions, with the words following indorsed "Given and excepted to December 4, 1896. John H. Gillett, Judge." It is insisted by appellee that, since it appears. from the first entry that "before the argument" the defendant tenders its instructions, and in the subsequent entry of the same day that "the jury having heard the remainder of the evidence, and argument of counsel, the court now proceeds to instruct the jury," we must construe the record as disclosing that appellant presented its instruction to the court and obtained the court's rulings thereon, and reserved exceptions, before the close of the evidence, and that inasmuch as the record does not show that appellant's instructions were again presented, rulings had, and exceptions reserved, after the close of the evidence, therefore it affirmatively appears that the tender of the instructions was untimely, and presents no question. for this court. We cannot agree with the learned counsel for appellee in this instance. Even if this court was bound by the recitals of the clerk, we could not give the record the construction contended for. The recital is that "before the argument" (not before the close of the evidence) the defendant presented its instruction, to be given "at the proper time." And even if the tender was made before the evidence closed, as insisted, that will furnish no reason why appellant's right to exceptions should be prejudiced. The preparation of instructions is a delicate task, and should always be performed with deliberation and care, and should never be postponed till after the evidence is closed, only in exceptional cases, and as to exceptional facts. There are most excellent reasons why the fair and cautious attorney should prepare his instructions before, or during the progress of, the trial, and tender them to the court at the earliest moment, that he may have time for full consideration. VOL. V-37