TRIEBER, District Judge
(after stating the facts as above). [1] It is claimed, in this court for the first time that the court below erred in holding that this cause is not one arising under the national Employer’s Eiability Act but under the state statutes of Iowa. Whether this was error it is unnecessary to determine in this action, as this objection was not made by the defendant in the court below, but, on the contrary, it insisted at every stage of the proceeding, from the time the motion to remand was filed until the close of the trial, that the cause was not one arising under the act of Congress but under the Iowa statutes. Therefore, even if it was error, which we do not decide, the defendant having invited it, and induced the court to commit it, it cannot now be heard to complain. New York Elevated R. R. Co. v. Fifth National Bank, 135 U. S. 432, 441, 10 Sup. Ct. 743, 34 L. Ed. 231; Walton v. Chicago, etc., Ry. Co., 56 Fed. 1006, 1008, 6 C. C. A. 223, 225; Chase v. Driver, 92 Fed. 780, 786, 34 C. C. A. 668, 674; Mechanics’ Insurance Co. v. C. A. Hoover Distilling Co., 182 Fed. 590, 593, 105 C. C. A. 128, 131, 31 L. R. A. (N. S.) 873.
[2] Nor is it permissible for one who tries his case upon one theory to change his position in the appellate court and ask fo.r a reversal upon another and inconsistent theory. New York, etc., Ry. Co. v. Estill, 147 U. S. 591, 614, 13 Sup. Ct. 444, 37 L. Ed. 292; Lesser Cotton Co. v. St. L., I. M. & S. Ry. Co., 114 Fed. 133, 142, 52 C. C. A. 95, 104; Chicago, etc., Ry. Co. v. Voelker, 126 Fed. 522, 529, 65 C. C. A. 226, 233, 70 L. R. A. 264; Missouri, etc., Ry. Co. v, Wilhoit, 160 Fed. 440, 443, 87 C. C. A. 401, 404.
[3] A motion for a peremptory instruction having been made by the defendant at the close of the evidence, which was overruled and properly excepted to, necessitates a review of the evidence to determine whether there was substantial evidence justifying the submis sion of the case to the jury. As on motions of this kind the evidence must be given the strongest probative force in favor of the party *940against whom the instruction is asked, we find, upon an examination :of the evidence, that there is substantial evidence to warrant the finding, under proper instructions, of the following facts:
[4] Plaintiff’s intestate had for 10 years or more been in the em■ploy of the defendant as fireman and locomotive engineer; at the time of the accident he was in charge of a locomotive and freight train of 16 cars running between Waterloo, Iowa, and Dubuque, Iowa; the train was in charge of Mr. Kelley as conductor, and Mr. Cooling, one of the brakemen who had charge of the train in the absence of the conductor; that when the train arrived at Manchester, Iowa, the engine was cut off for the purpose of doing some switching ; the conductor left the train to get his lunch, and the brakeman, Cooling, was left in charge of the train; about noon of that day a freight train from Cedar Rapids, Iowa, another branch of the same railroad, had come into the yards at Manchester and was also engaged in switching after Egan’s train came into the yards, and immediately preceding the accident was on the other side of the street crossing. There is substantial evidence to show that when two or more freight trains were in the yards at Manchester engaged in switching at the same time, each of the train crews assisted the other in getting out cars which were to go into the other train; that this was done by prearrangement between the crews of the two trains and by the use of ordinary signals; the conductors, or the persons in charge of the trains, would agree in advance of the movement of either train, after they had been placed in position to be exchanged, which one should back down and take or deliver cars to the other, and when so arranged the backing and coupling would be done under the usual rules as to signals. At the time of the accident Egan’s engine, which headed east, had attached to it several cars extending westerly to or near a public street crossing in the city of Manchester. The cars attached to Egan’s engine had been backed down on this track for the purpose of delivering several of these cars to the engine of the Cedar Rapids train; the brakeman of Egan’s train rode down on these cars and got off on the south side of the cars proceeding westerly for the purpose o^ ascertaining from the engineer of the Cedar Rapids engine whether he was ready and whether they would back up to Egan’s train or Egan should back up to his train. Before Egan’s train reached Manchester it was discovered that there was something wrong with the shaker bar of the furnace which did not permit of efficient steam making; a bolt connecting the grate bar with the shaker bar being loose. When the engine stopped in Manchester, Egan took his wrench and went down between the engine and tender to fasten his loose bolt while his fireman remained in the cab; it being the engineer’s duty to keep his engine in working order and to make these small repairs. While making these repairs, without any notice by signal or otherwise, and without waiting for any understanding with the crew of Egan’s train which of the trains should deliver or get the cars, and without any signal from any membelr of the crew, the engineer of the Cedar Rapids train, Marsh, backed his engine and cars attached to it over the street crossing and *941against the cars attached to Egan’s engine so that they moved from 30 to 40 feet and Egan was injured as before stated.
If the jury, as the evidence warranted, did find that it was the duty of the engineer of the Cedar Rapids train not to move his train for the purpose of taking cars from Egan’s train without an understanding and without giving the proper signals, he was clearly guilty of negligence, and it was the duty of the court to submit that question to the jury under proper instructions.
No exceptions were taken to the charge of the court, and we have carefully examined it and find no prejudicial error therein.
[5] The defendant asked certain instructions, but as most of them were covered by the charge it was unnecessary to repeat them. Those which were refused were clearly erroneous. The principal one which was refused was instruction No. 11, and it fails to state the law correctly.
[6] That instruction was:
“There is a defense claimed on the part of the defendant that said W. ,T. Egan entered into the employment of the defendant as an engineer, fully knowing and appreciating the facts that said employment was dangerous, and notwithstanding that dangers were connected with sucli employment, and notwithstanding the fact that he appreciated and knew such dangers incident to such employment, he remained in the employ of the said defendant, and thereby assumed the risks that were naturally and necessarily incident to such employment, and thereby waived any right of recovery for any injury received, which resulted from any act which was naturally incident to said employment and because thereof the defendant urges that the plaintiff may not recover in this case. Tn this connection you are told that it appears without contradiction that said Egan at the time of the injury and for some time before had been in the employment of the defendant as a railroad engineer, and yon are told that if you find from the evidence that he, knowing and appreciating the dangers that were incident to such employment, remained in the service of the defendant, that as a matter of law by such actions he waived the right of recovery because of injuries received, if such injuries were; the natural and necessary results due to the dangers incident to such employment, and if you further find that the injury in this ca.se was duo to the usual and ordinary acts naturally to be expected as incident to the said, employment of said Egan, then the plaintiff may not recover in this case.”
It practically states that if an employe of a railroad is long enough in its employ as an engineer and knew and appreciated the dangers which were incident to such employment, and still remained in the service of the defendant, he waived the right to recover, and he thereby assumed the risk. This is certainly not the law, for, if it were, there never could be a recovery by an employe of a railroad company. It would relieve railroad companies of all liability for negligence no matter how gross. Crotty v. Chicago Great Western Ry. Co., 169 Fed. 593, 95 C. C. A. 91; Chicago, etc., Ry. Co. v. Donovan, 160 Fed. 826, 87 C. C. A. 600. There was no error in refusing to give it.
There being no error in the record, the judgment is affirmed.