TRIEBER, District Judge
(after stating the facts as above). [1] Did the court err in refusing to direct a verdict in favor of the defendant? The general rule is that questions of negligence do not become questions of law, which justify the direction of a verdict, except where all reasonable men must draw the same conclusions from the evidence. Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249, 258, 29 Sup. Ct. 619, 53 L. Ed. 984; Delk v. St. L. & S. F. Ry. Co., 220 U. S. 580, 31 Sup. Ct. 617, 55 L. Ed. 590; Hart v. Northern Pacific R. Co., 196 Fed. 180, 116 C. C. A. 12.
[2] In our opinión the plaintiff was entitled to have the cause submitted to the jury upon the undisputed evidence. That evidence, established that the decedent was on the track in the discharge of his employment by the city, engaged in the construction of a sewer under the defendant’s tracks; that an excavation had been made between these tracks, and he was handing to the workmen below sheathing necessary in the construction of the sewer; that while so employed a train, consisting of a locomotive and five freight cars, backed to the place where he was at work, ran over him and injured him so seriously that he died shortly thereafter from said injuries; that there was no guard at that place to warn him, nor a Itrakeuian on the rear end of the train to warn the decedent or signal to the engineer of the danger to one on the track in order that he might stop the train and prevent the destruction of human life. Evidence that a railway company backed a train of five cars over a place where it was known laborers were engaged in work, without any precautions to warn them of the approach of the train whereby the injury could have been prevented, is clearly sufficient to require the submission to the jury whether the railway company exercised due care for the safety of men working at that place, when, as was conceded by counsel for the defendant at the trial, the decedent was not: a trespasser hut was rightly there. Grand Trunk Railway *712Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485; Chicago & Erie R. R. Co. v. Shaw, 116 Fed. 621, 54 C. C. A. 77. The facts dearly were of such a nature that all reasonable men would not draw the same conclusion from them, especially that there was no negligence.
[3] The question of whether the train was run at a negligent rate of speed ought not to have been submitted to the jury, as there was no substantial evidence to warrant such a finding. While it is a well-recognized principle of law that any error in the charge to the jury is presumed to be prejudicial, the record in this case shows conclusively that it could not possibly have affected the result of the trial, especially in view of the statement by the court to the jury that in its opinion the.evidence on that allegation was insufficienh
[4] The submission to the jury of the question whether the bell was ringing when the train was backing was clearly proper. The workmen engaged in the construction of the sewer, and who were within a few feet of the decedent, all testified that they did not hear any bell. The fireman on the locomotive testified that he gave the cord one pull when the train started and that it tapped. The engineer testified that it was tapped, but neither he nor the fireman testified that it was ringing while .the train was backing. Besides, considering the distance of the locomotive from the place where the decedent was standing, being five car lengths from the end of the train, the noise in a railroad yard having about twenty switching tracks, and where the switching of may trains was being' conducted, it would hardly be a sufficient warning under the circumstances, especially if, as claimed on behalf of the defendant, the train was only from three to six feet from the place .where the decedent was at work.
[5, 6] The court properly submitted to the jury the question whether the defendant was guilty of negligence' in not keeping a lookout .on the rear of the train, knowing that men were at work on its tracks. The fact that it was not the custom of the defendant when backing its trains to have a rear brakeman does' not relieve it of responsibility for an injury caused by reason of such omission. There is nothing to show that the decedent knew of this custom. Besides, custom cannot excuse negligence, and will not relieve from liability, if the injury would not have occurred, had due diligence been exercised. Parker v. Cushman, 195 Fed. 715, 117 C. C. A. 71; American Car & Foundry Co. v. Uss, 211 Fed. 862, 868, 128 C. C. A. 240, 426. Had there been a brakeman on the rear end of the train to warn the decedent or the engineer in charge of the locomotive, the accident could not have occurred.
[7] Nor was it error to refuse to charge the jury that the decedent had assumed the risk, as that doctrine only applies where the relationship of master and servant exists. There was no substantial evidence whatever that the decedent was guilty of contributory negligence. Still the court submitted that issue to the jury, and the finding was against the defendant. The decedent had a right to be on the track, and the defendant knew he was there.
[8, 9] The permission by the court of the amendment to the com*713plaint was a matter of discretion, and in the absence of. an abuse of such discretion it will not constitute reversible error. In this case there was no such abuse of discretion. Peaslee v. Railway Transfer Co., 120 Minn. 347, 350, 139 N. W. 613. Nor was it really material, as hereinbefore stated, whether it was a rule or custom of the defendant to have a brakeman on the rear end of the train when backing. When a person is rightfully at a place with the knowledge of the railroad company, the most-that it can claim is that the question of contributory negligence be submitted to the jury, which was done in this case.
[10] The refusal of tlie court to admit in evidence the agreement between the defendant and the city of Minneapolis was clearly right. There was no proof that decedent knew of it, and the agreement only affected the rights of the contracting parties. The defendant recognized that to be the law, for in its answer it states that it had served a notice of liability over, and a tender of defense of this action to the city. _ .
_ . The verdict is amply sustained by the evidence, and a careful examination of the record fails to show any reversible error. The judgment is affirmed.