HOUGH, Circuit Judge
(after stating the facts as above):
[1] 1. It is true that one suing under the federal Employers’ Liability Act is held to assume the risk of his employment, but that does not include risks incident to the negligence of defendant’s agents, employes, or officers. Boldf v. Pennsylvania R. R. Co., 218 F. 367" court="2d Cir." date_filed="1914-11-10" href="https://app.midpage.ai/document/boldt-v-pennsylvania-r-8793757?utm_source=webapp" opinion_id="8793757">218 Fed. 367, 134 C. C. A. 175; New York, etc., Co. v. Vizvari, 210 Fed. 122, 126 C. C. A. 632, L. R. A. 1915C, 9. As applied to this case, the risk of falling off a car properly managed or handled was a risk of plaintiff’s employment; but the risk of being thrown off his car by the negligent act of his employer or any one for whom that employer was responsible was not such risk.
[2, 3] 2. To describe the meeting of two cars as a crash, or a violent crash (as was also done by the plaintiff while testifying), is to state an opinion or a result. Where to draw the line between permissible statements of this nature and those’ which cannot be approved is not always easy, and is a matter concerning which much discretionary power exists in the trial judge. Standing alone, the words complained of are of little or no probative force, yet they represent an endeavor to convey the idea of swift and 'ungoverned approach1, and if the witness had stated what turned out to be the poorest of guesses as to the speed of the advancing cars, no one would have challenged his right so to testify. Subject to cross-examination, we think the words were rightly permitted to stand as well within the reasonable rule of the cases *392collated in Wigmore on Evidence, §, 1977. See, also, Beers v. West Side, etc., Co., 101 A.D. 308" court="N.Y. App. Div." date_filed="1905-01-15" href="https://app.midpage.ai/document/beers-v-west-side-railroad-5195968?utm_source=webapp" opinion_id="5195968">101 App. Div. 308, 91 N. Y. Supp. 957.
[4] 3. A hypothetical question must rest upon facts in evidence at the time the question is put. Nothing beyond the reasonable effect of such evidence can be embodied in the question, though the effect of the evidence includes inferences properly drawn therefrom. The question complained of was confessedly put because it was' thought a “fair inference” that the “cut” of cars that was said to have crashed into plaintiff’s car came from the same point as had the plaintiff’s; i. e., had rolled down the same distance. Considering the nature of the freight yard in which work was going on, with its multitude of switches, the absence of testimony as to what cars, or how many, were to be switched, or from or to what points, we do not think the inference legitimate, and consider the allowance of the question, at the time it was asked, error.
[5] But a majority of the court are of opinion that no harm was done by the questibn, because there subsequently appeared testimony that would have justified the question at a later stage of the case; and the writer of this opinion thinks that plaintiff’s experts by finally testifying that permitting any car to run down Hill at night unmanned, for any distance, was (in effect) bad railroading, put plaintiff’s case on a different ground, but still consistent with the pleading. This last testimony, was not objected.to, and when it had been given the answer to the hypothetical question became (in my judgment) both immaterial and harmless.
[6, 7] 4. The assertion that a recovery under the federal act here invoked can be in any why modified by the Workmen’s Compensation Act of the state in which the accident happened certainly lacks authority. It seems to us unsustainable upon the reason of the matter. It is the essential nature of any compensation act that it does not depend upon or is not invoked as the result of an act of negligence. What is assured to the workman thereby is not compensatory damages for a tort, but a species of insurance against hurts received in tire line of occupation without (perhaps) anybody’s fault. But section 1 of the Liability Act (35 Stat. 65) declares that common carriers shall be liable “in damages” for injuries due to their “negligence.” These words refer to a course and habit of litigation only too well known for some generations and must be interpreted accordingly. Damages mean what juries assess according to their own views of value, and the 'act authorizing such damages supersedes all state laws relating to the same subject. Mondou v. New York, etc., Co., 223 U.S. 1" court="SCOTUS" date_filed="1912-01-15" href="https://app.midpage.ai/document/second-employersliability-cases-2620807?utm_source=webapp" opinion_id="2620807">223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327" court="SCOTUS" date_filed="1912-01-15" href="https://app.midpage.ai/document/second-employersliability-cases-2620807?utm_source=webapp" opinion_id="2620807">56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Seaboard Air Line v. Horton, 233 U.S. 492" court="SCOTUS" date_filed="1914-04-27" href="https://app.midpage.ai/document/seaboard-air-line-railway-v-horton-98173?utm_source=webapp" opinion_id="98173">233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062" court="SCOTUS" date_filed="1914-04-27" href="https://app.midpage.ai/document/seaboard-air-line-railway-v-horton-98173?utm_source=webapp" opinion_id="98173">58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. It must be equally true that such legislation is unaffected by any subsequent state act, for what cannot survive congressional action certainly cannot control it.
[8] 5. When defendant’s motion to dismiss the complaint at the close of the plaintiff’s case was denied, the defendant was bound to elect whether to go on and introduce evidence or rest upon the infirmity of the case as made by plaintiff. It went on, and thereby waived the right to complain in this court of the denial of the motion. *393Union Pacific, etc., Co. v. Daniels, 152 U.S. 684" court="SCOTUS" date_filed="1894-04-16" href="https://app.midpage.ai/document/union-pacific-railway-co-v-daniels-93871?utm_source=webapp" opinion_id="93871">152 U. S. 684, 14 Sup. Ct. 756, 38 L. Ed. 597" court="SCOTUS" date_filed="1894-04-16" href="https://app.midpage.ai/document/union-pacific-railway-co-v-daniels-93871?utm_source=webapp" opinion_id="93871">38 L. Ed. 597. Nor is the rule different in this state. Porges v. United States, etc., Co, 203 N. Y. 185, 96 N.E. 424" court="NY" date_filed="1911-10-17" href="https://app.midpage.ai/document/porges-v-united-states-mortgage--trust-co-3613641?utm_source=webapp" opinion_id="3613641">96 N. E. 424.
It follows from the foregoing that the judgment must be affirmed, with costs.