R. Cases 542; Bank v. Eldred, 9 Wall. 554; St. Louis v. Risley, 10 Wall. 91; U. S. v. Breitling, 20 How. 254; Jones v. Randolph, 14 Otto 108; Boardman v. Reed, 6 Pet. 328; Insurance Co. v. Baring, 20 Wall. 158; Miller v. Railroad Co., 41 N. W. Rep. 28. An instruction to the jury which does not arise out of facts of the case, is inapplicable to it and is erroneous if calculated to mislead and confuse them. Railroad Co. v. Robbins, 2 Black 417; Bank v. Eland, 9 Wall. 554; Thompson, Charge to Juries, §s 62, 63.
S. L. Glaspell for respondent:
Whether the plaintiff should have known and appreciated the danger was a question of fact properly submitted to the jury. Hugerford v. Railroad Co., 41 Am. & Eng. R. R. Cases 269; Lawless v. Railroad Co., 18 Id 96; Greenleaf v. Railroad Co., 29 Iowa 14; Goodrich v. Railroad Co., 22 N. E. Rep. 397; Kane v. Railroad Co., 32 U. S. 339 (Co-Op. Ed.); Thompson on Negligence, p. 1015-1239; Williams v. Rajlroad Co., 3 Dak. 168; Dorsey v. Phillips, 42 Wis. 583; Mares v. Railroad Co., 3 Dak. 336, on appeal 31 U. S. 296, (Co-Op. Ed.); Herbert v. Railroad Co., 3 Dak. 38, on appeal 29 U. S. 755 (Co-Op. Ed.) Defendant objects to plaintiff's wife testifying that plaintiff "woke up more than once in the night groaning," because it was hearsay evidence. The weight of 'authority is in favor of admitting such testimony. Matteson v. Railroad Co., 35 N. Y. 487; Perkin v. Railroad Co., 44 N. H. 223; Houston, etc., v. Shafer, 6 Am. & Eng. R. R. Cases 421; Railroad Co. v. Newell, 104 Ind. 264; Yeatman v. Hart, 6 Humph. (Tenn.) 374; Eckles v. Bates, 26 Ala. 655; Kent v. Lincoln, 32 Vt. 592; State v. Gedicke, 43 N. J. Law 86; Note to 28 Am. & Eng. R. R. Cases 563. The duty of inspection applies to foreign cars as well as to those owned by the railroad company, and the use of such cars with defective coup ling apparatus is negligence. Sherman & Redfield on Negligence, § 196; Gottlieb v. Railroad Co., 100 N. Y. 462; O'Neil v. Railroad Co., 9 Fed. Rep. 337; Fay v. Railroad Co., 11 Am. & Eng. R. R. Cases 193; Goodrich v. Railroad Co., 41 Id 259; Bomar v. Railroad Co., 88 So. Rep. 478; Railroad Co. v. Barber, 44 Am. & Eng. R. R. Cases 523. Plaintiff was only bound to
