Appeal from a judgment in favor of ap-pellee upon a directed verdict in a suit for damages for personal injuries sustained as a result of appellant, a trespasser, being pushed oE of a moving freight train of appellee by a brakeman.
This appeal presents two questions: First, whether the directed verdict was proper; and, second, whether the court properly excluded the testimony of two witnesses to the effect that under the printed rules of appel-lee it was within the scope of a brakeman’s duties to eject trespassers from trains.
In this state, under the holding in International & G. N. Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902, and numerous cases following it, it is not within the apparent scope of a brakeman’s duties to eject trespassers from trains; this function falling within the general duties of the conductor, who has general charge of the train and its movements. Where the terms of the brakeman’s employment or the rules of the carrier do not place this duty upon the brakeman, the carrier is not liable for his negligent act in ejecting a trespasser, unless the evidence shows that there was a practice or custom on railroads generally, or on the railroad in question, under which brakemen exercised this authority, the knowledge of which would be imputed to the railroad company. See Texas & P. Ry. Co. v. Mother, 5 Tex. Civ. App. 87, 24 S. W. 79 (error refused).
We have carefully read the entire statement of facts in this case, and we find no evidence of such custom or practice, and no evidence of authority in brakemen to eject trespassers. The trial court, therefore, correctly directed a verdict for the defendant.
The evidence excluded was by deposition, one of the witnesses testifying that he had printed rules at home and could produce them at the trial. No notice was given by appellant to the appellee to produce the printed rules and no other effort so far as the record reveals was made to obtain them. The evidence was objected to at- the time it was of*230fered, but the objection overruled. After appellant had closed Ms case appellee renewed its objection to this testimony, and moved to strike it out. This motion was granted, and the ruling excepted to and assigned as error.
Clearly the ruling was correct, since the printed rules themselves, which formed the basis of the witnesses’ testimony, were the best evidence, and parol evidence of their contents or effect was not admissible in the absence of a proper predicate for the admission of secondary evidence. Missouri Pac. Ry. Co. v. Lamothe, 76 Tex. 219, 13 S. W. 194; 22 C. J. p. 992.
The trial court’s judgment is affirmed.
Affirmed.