As to the first objection. The allegations of the complaint, so far as they charge the defendant with negligence, are in effect: 1. That the defendant at the time of the accident did not have competent and skillful engineers in charge and control of the running of said engine. 2. That it did not provide a suitable, safe and sufficient roadbed over which to operate its engines and cars at said plant. 3. That it did not see to it that the engines and cars were properly inspected and maintained. 4. That it did not supply plaintiff with suitable and safe means,, material, implements, dráwheads, connecting bars and light, and maintain the same, to enable plaintiff to safely perform his duty as brakeman. 5. That it did not have proper and safe rules and regulations in running and operating said *423engines for the protection of its employees and to give proper warning and notice to said plaintiff and those employed in like capacity of the approach and movements of said engines. It is alleged that the defendant was guilty of negligence because it omitted and neglected to do any of the things above enumerated; that as a result plaintiff sustained the injury of which he complains and without any fault or neglect on his part.
Clearly, an inspection of the defendant’s plant and property at the time the order in question was made could not have given to- the plaintiff any information respecting any of the charges of negligence which he alleges against the defendant in view of the fact that such inspection is sought after three years from the time when the accident happened. Mo inspection could disclose whether or not the defendant had competent or skillful engineers or whether it saw to it or did not see to it that the engines and cars were properly inspected and maintained, or as to whether or not it supplied the plaintiff with suitable and safe means and- appliances with which - to perform his work or whether or not it promulgated rules for the purpose of insuring his safety. Those are all matters which can only be established by witnesses who were present at or about the time of the accident. There is nothing that can be seen at this time by the plaintiff or by his representative that will throw any light upon either of those questions.
Whether or not the defendant provided a suitable, safe and sufficient roadbed at the time- of the accident, three years before this application was made, cannot be discovered by any inspection or examination which can be made at this time.
The allegations of negligence contained in the notice served under the Employers’ Liability Act,, while more specific, are of the same general character." It is therein alleged that the drawhead and connecting bar were out of order, but it is nowhere suggested in the petition that such drawhead or engine or connecting bar is in the same condition now as it was at the time of the accident. A court would almost take judicial notice of the fact that those conditions would have materially changed in a plant of this character during a period of three years.
It is proper to inquire what the plaintiff and his representative _?.an be reasonably expected to discover from an inspection if now *424made which would throw any light upon the conditions which existed at the time of the accident; yet that is the . only matter which would be material upon the trial of this action. The conditions now existing could .not be proven — would not be competent unless there was proof indicating that the conditions complained of were the same at the time the inspection was made as at the time the accident occurred. There is no allegation in the moving papers that the car or engine which the plaintiff was engaged in coupling is even at the defendant’s plant at the present time, or that the drawhead, which it is alleged in the notice was defective, or the connecting bar, is at the' plant, or is now being used or operated or, if so, that they are in the same condition as at the time of the accident. The same is true of the roadbed and tracks of defendant.
The plaintiff has utterly failed to show that any conditions which might be discovered by inspection at the defendant’s plant at the present time are the same as existed at the time of the accident, and upon which the defendant’s negligence is based, and for that reason the order should be reversed.
Having reached such conclusion, it is unnecessary to consider the effect of the amendment to section 803 of the Code óf Civil Procedure, to which attention has been called.