W. F. Ball and John S. Watson, for appellant:
The principle is well settled that no negligence can be inferred from the fact that a railroad track is constructed on a curve at the place of an accident to a servant. And this is true, although it appears that the accident would not have occurred had the track been straight. Tuttle v. Railroad Co., 122 U. S. 189. The wife of the plaintiff was asked the following question: "Have you ever noticed any exclamations or expressions of pain at any time," referring to the physical condition of the plaintiff. Evidence of this character is admissible only when it relates to expressions and exclamations made at or about the time of the injury. Reed v. Railroad Co., 45 N. Y. 574; Railroad Co. v. Kuntley, 38 Mich. 537; Wharton on Evidence, § 268 and cases cited; Laughlin v. Railroad Co., 44 N. W. Rep. 1049. An employe cannot judge of the reasonableness of the company's rules. Walsey v. Railroad Co.,33 Ohio St. 227; Hulet v. Railroad Co., 67 Mo. 239. It was undoubtedly contributory negligence on the part of the plaintiff to place himself in such a position as to incur the danger and suffer the injury complained of. Tuttle v. Railroad Co., 122 U. S. 189; Railroad Co. v. Lunde, 11 Am. & Eng. R. R. Cases, 188. The plaintiff entered upon the service of defendant under a written contract and he cannot escape strict compliance with the terms to which he there consented. Railroad Co. v. Whitcomb, 31 Am. & Eng. R. R. Cases, 149; Darractus v. Railroad Co., 2 S. E. Rep. 511; Walsey v. Railroad Co., 33 Ohio St. 227; Railroad Co. v. Black, 88 m. 112. It was not negligence to receive the Union Tank Line car because it had a shorter dead wood and draft iron than those in use upon defendant's cars. Whitcomb v. Railroad Co., 12 Am. & Eng. R. R. Cases 214; Kelley v. Railroad Co., 21 Id 633; Railroad Co. v. Black, 88 Ill. 112; Smith v. Potter, 46 Mich. 258, 2 Am. & Eng. R. R. Cases 140. When an instruction is based upon a state of facts not warranted by the evidence, the manifest tendency of which is, from the special features of the case, to lead the jury to infer the existence of such facts and thereby take an erroneous view of the case, it is ground for reversal. Willis v. Railroad Co., 17 Am. & Eng. R.
