*1 рlaintiff was unable do manual labor Laundry Company case much, apparently partial paralysis and was left any kind, suffered plaintiff in case. than was the worse condition this ascertain, nearly can the verdict excessive As as we If, $4,500. therefore, will file remittitur of that extent days clerk of this within after sum in the office of ten court judgment filing will be opinion, affirmed for the sum of this orig- per cent thereon from the date its $15,000, six interest judgment Otherwise, inal court. rendition the circuit will All reversed and the cause remanded another concur. trial. B. Estate Administratrix Alexander Martin, Martin,
Lulu Railway (2d) Company, Appellant. S. W. 735. v. Wabash July 9, One, 1930.
Division *2 Barry ap- Hall, J. cfeFuller Mahan, Homer F. Mahan pellant. *3 respondent. and E. L.
J. 0. Allison Alford *5 Martin, brought Alexander SEDDON, C. This action injuries damages suffered deceased, personal now to recover for inspector employed he car him on March while repairman switching-yards Wabash outer Rail- way brought Company Hannibal, at under Missouri. The action is (45 provisions Employers’ U. Liability Act S. Federal resulting A., 51-59; 8657-8665), Comp. Stat., C. S. secs. secs. U. Martin, judgment Alexander plaintiff, in a verdict and for trial $16,000. sum new unsuccessfully After appeal judgment, for arrest of the the defendant allowed plaintiff pending below. died judgment this court from the The having revived appeal, the submission of the the action been estate, name of the of .decedent’s the said administratrix respondent herein. administratrix becomes plaintiff petition avers both were defendant en- gaged plaintiff’s commerce injury, in interstate at time of damages plaintiff right recovery asserts his under the Act; provisions Employers’ liability that, Federal terms and 8, 1925, years prior on March and for about and one-half two thereto, employ plaintiff was in the the “outer defendant at yard,” switching-yard, Hannibal, Missouri, main of defendant inspector repairman, and, employee, as such as a car it was inspection wheels, brakes, to make an freight parts, trains, of the cars other being pulled in motion freight trains were into de- Hannibal; eight or outer switch that about main fendant’s *6 evening 8, freight o’clock on the 1925, March while defendant’s being pulled train was No. into said switch.yard on track No. 1, standing plaintiff and was while between track No. and track yard, plaintiff in said and engaged main-line while was duty making inspection in moving freight his of said 95, injured by No. struck plaintiff was and defendant’s switch- engine being No. which was eastwardly upon backed the main- in yard. said charges line track switch petition defendant negligence respects: in following “That the defendant employees said agents, charge and its servants and in said switch engine negligent failing were careless and in omitting and to exercise safety due look care out plaintiff, plain- while the engaged performance tiff ordinary of the usual and duties employment, аforesaid, of his as particularly and while the plaintiff engaged making in partial inspection said of the cars moving freight train, of said aforesaid, failing as and in and omitting engine to so handle said switch and to so move- control its ments, plaintiff while the engaged, plaintiff was so as to render the reasonably danger free by engine, struck said switch at said place; time and that agents, defendant and its said charge employees servants and in of said were care- switch negligent failing give omitting plaintiff less and in and due timely warning and of the approach engine, of said switch engaged plaintiff making in partial inspection said moving freight sounding train, aforesaid, by cars of said as by engine, proper bell of switch whistle or said some other and signal warning; agents, sufficient the defendant and its said charge employees engine saw, in servants and said switch ordinary care could and seen, plaintiff exercise of should have perilous engaged making partial inspection his said situation, while freight moving aforesaid, time, train, of said as cars part, stopped care their to have said ordinary exercise of switch' prevented thereby swatch from run- engine, and to have said and; ning against, plaintiff, aforesaid, over and to have being injured.” prevented plaintiff from allegations generally petition,
The answer denies and plaintiff’s injury directly avers that оccasioned his own care- negligent conduct, and and without less and acts part plaintiff, defendant, injury, at the time safety, and for his own as was his not watchful careful and as plaintiff placed negligently law him, but that him- demanded negli- engine, track self near and about defendant’s and and switch gently engine; failed to watch for switch said the answer further long that, prior entirely avers plaintiff March familiar with, knowledge had full of, the condition location of all of tracks yard, particularly defendant’s railroad the main- side-tracks; manner thereto, adjacent line well .and engines operated, there and trains were employment, danger to his appreciated knew .the incident engines and switch him especially danger to railroad in said upon the trains over and tracks arising from, from a risk injury resulted plaintiff’s
and therefore *7 risk assumed was to, employment, his incident contract and .and employment. of plaintiff terms his under the way injury inwas -reply specifically plaintiff’s The denies that part, his and by any negligence .on caused, directly to, or contributed injury was resulted which his specifically risk denies that the from risk, by reason his he said incident to or that assumed employment, injuries employment, of his risk which but avers from ,as.specified set negligence defendant, of resulted arose and. out of brought in the no risk about petition, out assumed and that or of defendant. occasioned on, action, agreed It parties, both .trial plaintiff and engaged were interstate commerce at the defendant freight plaintiff’s injury,, defendant’s, time No. train and that was an and interstate train of. Illinois into from State merchandise, through carrying and Missouri, State of and was freight brought of, beyond, from states outside and states- destined the State Missouri. yard-in The evidence discloses Han- switch that.defendant’s .' quter running
nibal consists of a main-line track west a dis- east and through-the tance about mile number of and-.a one7half lying switch tracks of, parallel and to, north south the main-line At the yard yard track. or' west end office, switch was located the depot, outer place from which there extended from the main-line northeasterly in a track track, direction a iead from track switches lead to the several lying tracks north main- switch line The immediately switch track adjacent track. of, to, north the main-line track was known as track 1,No. the switch track immediately north of track No. was known as track No. 2. In all I eight there were switch lying tracks parallel north of, to, the track, main-line those switch tracks Í numbered from to A inclusive. number of switch lay tracks south of track, the main-line and those switching tracks were used making up ears and trains, and several'were used as “rip” repair tracks, “heavy” where permanent repairs were made to defendant’s cars equipment. Another lead track was located at the yard, extending east end track, northwestwardly from main-line the. the several switch tracks lying north of the main-line track! Defendant’s freight train No. 95 was an train, interstate which operated daily from Springfield, Illinois,, westwardly and thence across the State of Missouri City, Kansas -Moberly. via Hannibal eight Hannibal about yard in switch outer at the usually arrived It No. train arrival day. Upon the evening of each o’clock were cars the train Hannibal, the switch outer at train from the taken were caboose engine and the inspected, the crew train caboose, and the engine and another replaced were 95 then No. train performed, changed. this service After and train engine, caboose and different new with a west proceeded yard on switch outer usually pulled into the 95No. Train crew. of, immediately north lying track which was the No. track aby1 entering No. track train track, the adjacent main-line to, the Trabk yard. switch end of the track at the east from the lead switch accom- yard, and longest tracks in switch ivas the No. usually 95No. was train fifty cars. The modated train leading from the lead switch stop AAfhen reached brought to it depot outer yard, near No. the west end track to from train. was detached yard office,where the No. 95 detached train rear, end, east caboosе at the placed on the caboose switch-engine, and another by a daily 95No. SAvitch-engine. The train by the of the train rear *8 Hawn. Leslie Martin and inspected by inspectors, Alexander two having been men, Martin experienced railroad inspectors were Both of period two employ a continuous inspector as for in defendant’s having years prior injury, Hawn been em- and a half to and longer period than Martin. inspector for a somewhat ployed an Mar- daily 95, No. By upon arrival of arrangement, the train mutual incoming the and position a on the south side of usually tin took of moving train, position north side the and Hawn took on the the employed known as inspectors The two Avere on train. what “night shift,” afternoon beginning work at three o’clock the their night. day, Avorking eleven o’clock Martin testi- of each until at ' continuously night had on the shift for about two fied that he years worked inspectors injury. prior to his It was the of two the to rods, wheels, shoes, underrigging, examine the brake brake and draw- inspection bars of the cars in defendant’s trains. The was com- yard, completed while the menced train was into and was the engine being replaced while the and caboose Avere the For train. making purpose inspection, of the Martin and Hawn were each having lantern, furnished a coal-oil reflector which shield or en- light globе sides, closed the on three in order to or throw the reflect light through open from the lantern forward the or side of the front By lantern. the use lantern, light of such pro- therefrom was upon jected underrigging the wheels and of the cars to aid inspection night. of a train at evening switch-engine Earlier in 1925, of March 8, brought
No. 591 had “drag” oE cars from the “doAvn-town” yard placed levee the outer and had cars on No. track
11ÍL6 switch-engine No. switching movement, Having 2'. made this depot, located office or westwardly outer proceeded main-line on the yard, where stood at the it west end arrival of awaiting expected twenty minutes fifteen or the switch- of which train 95, arrival train No. yard for the of end the east engine proceed No. No. of rear end train detaching from the caboose purpose Switch-engine No. another. with replacing the caboose west, and toward pilot of the with the front or headed switch-engine was The the east. or tank toward with the tender front being on the located headlights, one equipped with two electric top, on located and the other engine, or west end back, the rear or east or tank end and at of the tender at headlight which engine. candlepower each electric The switch-engines, headlights candlepower used the usual light out- as to throw the beams of were so focused headlights undisputed wardly is side of track. The evidence each lighted burning headlights switch-engine 591 were both No. that both the time of No. on track No. at the arrival of train headlights lighted burning injury. of plaintiff's were at time switch-engine automatic bell- equipped No. 591 was also ringer, put operation by controlled into means valves engineer automatically engine, both the fireman and which rings power compressed bell air. Foot-boards for the use convenience switchmen attached to the front or switch-engine, pilot end at the tender also rear tank. Upon No. 95 the arrival No. 1, the east on track Martin, according
plaintiff, his testimony, position took a about car-lengths feet) (400 ten to 600 fifteen depot east of the outer (which yard), is located the west end of the and between track 1No. and the main-line track. The distance between the center of *9 the main-line track and the center 1 approximately of track No. is feet, fourteen and the distance between the inside of the two rails feet, 9 4 tracks ordinary “over-hang” is inches. The of cars and engines that, 2 2 inches, feet, outwardly is about from rail, the so engines when passing upon and cars are the main-line track and track 1,No. space, there is a zone, clear or “free” or of at least five feet engines between of the sides and cаrs passing on the tracks; two say, body person is standing that the of a space, within the “free” zone, midway or of five feet between the main-line track and track 1 No. not be by, struck with, could come contact the sides of engines passing cars Martin, those tracks. two plaintiff, The testified was that he familiar with the relative location of the different tracks and other yard. facilities defendant's switch
1117 1,No. the switch- of track 95 west end approached No. the train As backed, track toward eastwardly main-line on the No. 591 was engine caboose the yard, in order to detach the of switch east end the along track Moving the main-line eastwardly No. 95. rear of train the was the usual eight hour, an miles speed of sis aat yard, and switch-engines outer speed of in defendant’s ordinary switch-engine east, the switch- tank of the headed toward 'the tender 1 about 95 No. engine 591 No. on track. passed of train engine No. the depot. feet) of outer (480 the car-lengths east fifteen twelve to engine bright No. the candle- headlight train electric of of The visiop. momentarily the- light power blinded the of which was objects switch-engine so was unable see engineer No. he that No-. engine of train distinctly moments after a few clearly or until No. cars of train engine and or three two After the had passed. suddenly switch-engine engineer observed passed, the 95 hаd right ground north or side a- at the light projected upon flash knowing flash caused the sudden not what switch-engine, and, brought engineer emergency brakes applied light, stop. body Martin switch-engine No. 591 sudden The to a main-line át lying No. and the between track was found pilot engine length, west of about feet, distance of leg amputated 591. had crushed and engine No. left been Martin’s right he had a fracture of the leg, calf suffered below " ' the wrist. arm at undisputed crew of the switch- that The evidence none by. before struck switch- engine Martin at time he was saw near track as be in engine, or knew he was so the main-line that engine. danger of struck There is substantial evidence switch-engine 95.was'regu- knew No. that the crew the larly that train yard. inspected inspectors upon arrival the outer its engineer switch-engine they were' fireman of the testified sharp engine keeping a toward moved baek- lookout the east along wardly positive testimony main-line track. The fireman, engineer, switch-engine crew of and two switchmen of the continuously No. engine ringing was that bell was from the switch-engine track, easterly time started to move on the main-line engine and that the Martin ringing bell was still found lying testimony between the tracks. Similar and corroborative given by members of positive the crew train No. 95. No evidence by plaintiff switch-engine was adduced that the bell of not ringing switch-engine at the time easterly of the movement of the along although track, the main-line Martin Hawn both testified' they did switch-engine; “hear” the bell but both testi- making fied that No. 95 noise, considerable working of train No. 95 was steam and the bell of latter' ringing. witness, Plaintiff’s Waelder, who the'fore- *10 bell “I not swear that could crew, testified: switching of the man moving down we were ringing at the time switch-engine) was (of the any rule evidence that was no it was.” There I think track, but give switch-engine to crew of a required the defendant custom of man, of the movement of a lookout bell, whistle, or warning, yard. During backward switch engine in crew of three switchmen of the switch-engine, the of the movement pilot standing foot-board at the or west on the engine No. switching-crew member of switch-engine, and no was end of the east or forward foot-board at the man a lookout stationed as switching crew testified that tender or tank. One of rear any-restriction in,” ride on the of the “there is not end engine, used either foot-board of the accord- switchmen and that the ing to show the main- The evidence tends their convenience. kept usually open cars, and clear of and the main-line line track was by switch-engines moving frequently was the track more from used yard, although other to the east end outer tracks were west occasionally by switch-engines moving from used end of the one yard to other end. ‘‘ working Martin Mаrch I Plaintiff testified: On from night. I put three the afternoon eleven at had most service shift; I judge years on the to eleven three about two this on shift. my years During . . . a half employment, two I fa- became tracks, miliar with the location of the the relative location of the different acquainted yards. tracks and facilities other about the switch I was freight with the time arrival of coming train into yards the many east, known as No. 95. inspected I had train my on Usually times as it yard. watch entered the commenced my inspection of that train at the west end the yard, while the I making was motion ... inspection of 95 from side; the south Mr. side, Hawn on the north I was opposite think about two of me, ears east side of track and train. This was on eight March 8th, o’clock; about it was dark. ... I was between main line and track 1. ... As 95 pulling into pulling 1; and west, began from east to I making my inspection train; I facing northeast; held the lantern in my right hand. I standing about in direction, bent this over like (indicating) this tracks, to watch the and moved the lantern to and fro backward and (indicating) forward making this inspection, flashed the lantern mostly. on the I wheels should judge the bottom average car is a little over three feet above the rails, or the ground; I exactly don’t know high; how I could not make this in- spection of couplings, wheels parts and other mentioned, standing close to I train, because could not see under the cars; get hаve to you back so can see under there. I facing northeast, and about in shape this (indicating), No. 591
1119 acquainted I this engine.' had become a switch was me. It hit yards say me. I would before hit it about the it seen engine and had 95 when switch No. something fifteen cars on like inspected I had working engine was 95No. ivas in motion and lier still engine hit me. making noise. hit; was I of the train the motion when was steam through the working noise in steam always considerable is There Q. you engine; noise. Did cylinders made a loud the exhaust of the you? approach, before it hit engine, or know its hear this switch I to depot when started up I had seen it the outer Yes, A. sir. standing :I I came back inspect; still.' had seen that when it was moving train; inspect rip I switch shanty when started to hit engine standing Just it depot. in the outer before was front of it; I approach me of its or hear hear bell didn’t know didn’t engine; whistle; its man on switch switch didn’t hear no any signal warning I engine me called to to look out. didn’t hear knowledge engine. My approach of the switch notice or first engine backing switch warning 'of down the main-line track my was I . . when it me. had back to it it hit me. . hit inspect From the I started ears in 95 While in motion, time engine I standing after 'had- seen the switch in front outer depot, warning engine I of any had ho notice ór that had kind depot. moved from . there in . . front outer There something five like feet in which work when is a left there there 3 on both No. standing and the main line. I was close as moving to the inspect train as I properly; could can’t stand it right up against it, it; got can’t see undér back under to see stand inspect it and I I judge probably, should it. feet standing, three standing of it. I moving back 'from the train so I could see under it. Would 'have over stooping position to bend in a to see making; under it. While inspection of the ears on 95, while it moving, danger I I didn’t know in being struck on the main I inspect line. aimed to be in the dear so and to the train. n . I keep aimed to dear I main line. At that time thought I line, that was clear the main I say,' would not be able to standing just dark, there how I far was either from main line moving or the train.” “I Cross-examination: aimed to be in the n night dear the main-line track making that token I was that in- spection. my It purpose intention get the clear that I track. thought I was placing myself so I was in that the clear of that-track. I had thought no I myself that was placing in such position I was that not in the clear of the main-line track. I had inspected same train on track numerous times before that night, generally-did and we that when 95 towards west end I track No. 1. know about how overhang much was of ordinary car, or engine, gave outside of the track. I under- me, It it, something stood like space of about five feet between the sides of moving, one on track one were two trains if there
the cars I Of never measured something course, like traсk, that. main-line the it; gol that to the main-line closer than knew, course, I if being got danger struck, if I closer than track 1 ivould ob- danger I had 1 I struck. No. would be to track there, my past yards between work served that from I inspecting particular train. ... knew two tracks got pulled main cut off cars and had out on the 591 had from those way I her depot, and the saw was the tank head- up line at the outer *12 I headlight light there. ... burning, the electric light from 95 pulled necessarily know when train No. in on did not that track caboose, engine pull 1 her off the handle the switch had east to end might for other cars that have be set Hannibal and then set to out on end, on the because a times new caboose east lot it worked end; engine in town off from down would take the caboose west always They that; sometimes; knew put on. did do I it not engine would that that the west end move down to sometmes from end and do that work on tram 95. That ivas not east an unusual engine I thing; ... it once in a knew some do do while. had to that, engine from that, but do and did town could that sometimes. you I I engine knew that had to be eould not whether done. tell that regular engine switching yards 591 night, in outer was the that engine I it was or whether downtown. ... didn’t any yard engine night. know other in at that that time that east; Train 95 No. was a train merchandise from the it would come engine inspected, any in and changed, be and caboose and cars to in be or out way, set would be handled that and then would it go every on towards the west. night, That train came in mer- that train, generally chandise and it would come in on our shift. That years true for two happened. before the accident ... I don’t whether, I engine standing remember up after saw the outer again depot, I engine. looked hardly to see about the I think I ever it; watching I train, looked back my attention was called right positive to the train. ... I am not that I never looked again engine; towards the did; think don’t I I that don’t think I position looked back at it. my took a with back towards the west guess I engine. where saw that I I that my remained with back in position that I until was my struck. I never once turned to head look engine towards the west coming to see whether No. down to take the caboose put that train and watching on. I another off pulled by My that me. train, attention was called to doing my duty, inspecting that train pulled as it me.” Plaintiff’s witness, Waelder, who was foreman of the crew of switch-engine 591, No. testified: ‘‘It was usual thing, when pulled in on the track, switch No. 1 track, engine for the to switch go down to the east end and switch any out the caboose and other any in, cars to switched and switch out, be switched 'ears go It was handled on west. train to new caboose on a switch employed Martin was Mr. during way all the time engine down same move the switch And would inspector. car as and cus- night, usual doing and it just as it line just it No. 1 as did thing pull on track tomary for train ’’ night. light from the electric blinding vision Respecting of his Bridg- witness, No. headlight engine of train on the ‘‘They switch-engine No. engineer testified: man, was the who my view headlight engine; 95’s it bright obstructed very had engine . when an . . The effect extent, blinded me. to a certain headlight burning switching from the other direction brilliant you, you just have your eyes, of blinds affects kind that it is go again. your eyesight back normal As comes before distance object any you see engine approaches you, passes, can’t after it an back- when your engine, or in front tender that is front I east, night. . . When met the ing we were that object I after headlight my vision. could not see affected object. my the main-line that, I run down not continued anything I, of me myself, could see what was ahead not I not it; knew peril; about I could have could anybody seen *13 them, engine my kept running; stop see on didn’t occur to me to them; I I six or stop; I could continued to run because see didn’t eight period.” miles an hour in that blind Martin, for During plaintiff, plaintiff the examination of counsel sought inquire ordinary him was usual custom to of “what the during switchmen, practice, your there, service as to some riding engine crew, the switch both ends of the while the passing yards through down the line.” Defendant’s coun- on main objected ground inquiry upon petition sel this to line of that the allegation charge respecting no a contained violation any by inquiry employees, custom or rule defendant’s and that the any foreign charge negligence (upon part defendant employees) up or its petition, set and which defendant upon objections called to meet. The trial court sustained defendant’s inquiry; whereupon plaintiff to the line of for counsel offered to by prove, testimony “during experience plaintiff, car inspector observation as for defendant, it the usual and ordinary practice switching custom and crews in the yards Hannibal, Missouri, switch both ride ends the switch- passing up and down the defendant’s main-line track through yards; said say, ordinary is it was the usual and practice and custom for at switching least crew one said to-be switch-engine each end of under said mentioned.” circumstances objected Counsel upon defendant proof, to the offer of same
;1122 grounds as objection. inquiry pro- in the -theretofore stated pounded court, witness, objection trial -and.the sustained , (cid:127) - , proof. .. denied the offer of. n Peremptory instructions, in the nature evi to the of-demurrers dence, requested' by evidence, defendant plaintiff’s at the close of close; and at of all requested the evidence. Refusal of the peremptory by instructions assigned by trial court is error as 1 . appellant. defendant and I. It is strenuously' by appellant,. contended Railway Com- - pany, that there -is no neg- substantial evidence of actionable ligence part, on its plaintiff, and that Martin, placing him- position
self in danger- a' safety outside the zone aPProximafcely midway -five'féet between the main liue- track and- track No. 1 of defendants switch assumed risk of struck the switch- engine moving upon track, the main-line which risk was one that ordinarily normally employment incident to his' as a ear urges inspector. Appellant therefore that -it. 'entitled to favor, directed verdict its and that the trial court' erred in refus- ing requested' peremptory directing 'the instruction a verdict for defendant, tendered at the close of all the evidence. As brought action Employers’ instant is under Federal .the -
Liability rights obligations Act, the parties are to be d provisions act, applicable determined of that an principles interpreted the common law applied Employers’ Liability Federal courts. Cases, 223 S.U. [Second 55; 1, Railway 501; Line Horton, 492, Seaboard Air v. U. S. Railway Gray, 339; 24 333, Chicago, Southern Co. v. U. S. M. & Railway Coogan, 472, 474; St. Co. v. 271 U. S. Toledo, P. St. Quigley & Allen, 168; Louis Western Railroad Co. v. U. S. 33; v. Hoch v. Hines, Railway Co., Mo. Mo. Liability Employers’ permits recovery Act Federal 1209.] negligence only, the basis of and therefore burden to adduce reasonable and substantial evidence to show *14 by him respect place breach of owed defendant in - nr injury, that, injuries part, of his and in whole o i his resulted' proximately directly and therefrom. L. & W. Railroad [Delaware Koske, 11; 279 L. & 7, Toledo, Co. v. U. S. St. W. Railroad Co. 165, 169; Horton, Air v. 233 U. Allen, v. 276 U. S. Seaboard Line Railway Gray 333, 241 492, Co., Co. U. S. 501; Southern v. S. arising Liábility Employers’ In Under the Federal cases 339.] entering upon employee, that an in Act, Federal courts hold e dangers th and or employment, assumes all risks a contract of t, extraordinary dinarily employmen his also the incident employer’s which are obvious and risks caused
1123 fully employee known to the appreciated by Mm, plainly or so observable that he presumed must be to know them. v. [Boldt Pennsylvania Co., 445; Railroad 245 U. 441, S. St. Toledo, L. & W. Railroad Co. Allen, v. 276 U. 165, 169; Delaware, S. L. & W. Railroad Co. 279 Koske, 7, 11; McIntyre v. U. S. Rail v. way Co., Railway 286 256; Mo. 234, (Mo. Sup.), Osborn v. Co. (2d) 1 W. 181, S. 188.] Appellant insists evidentiary that the facts and circumstances bring the instant case within, the action and therefore the action must be with, ruled accordance principles common law as interpreted applied Supreme the United States Court in the Toledo, case of recent St. Louis & Western Railroad Co. Allen, v. 276 Supreme U. S. 165. The Allen case went the Federal Supreme on Court certiorari to the Court of Missouri. Division judgment Two had unanimously this court rendered affirmed a brought in favor of the employee, Allen, in an action under the Liability (Allen Employers’ Ross, 732), W. Act v. S. Federal Supreme judgment and on certiorari the Federal Court reversed the Supreme evidentiary of our Court. facts and circumstances The length in opinion in the Allen case are out at considerable set (292 734). Epitomized, l. c. of Division Two of this S. W. court employed Allen defendant the facts were these: had been car eighteen checker company railroad months as a about Madison, Illinois. switching yards company of the railroad trains, freight in defendant’s the cars His duties were to cheek sheet cars, and write out train numbers and note the initials freight He worked at leaving trains. preparatory to p. injury, of his m. At the time night, from eleven m. to seven a. standing two between ,1:15 he was about which occurred m., A. engaged switch-yard, tracks, No. parallel standing 5, and was freight track checking on cars in a train parallel tracks train. from the and north three feet back about being track, north No. west, track east and extended south, Allen faced the south track. No. track Track 4 shoulder. his arm and lantern on left lighted carried train track began to check Allen clear cars yard had been in the switching of ears 5, and he believed that switching be other there would informed done, and was he was train which departure of the before done checking several duties of engaged checking. While so west were shunted cars cinder two on track cars switching crew by parallel adjacent switching Allen of the warning being given without engine, run car, over cinder by the forward struck Allen was movement. light on lookout man or no There seriously injured. *15 1Í24
cither of clearance, safety zone, the cinder cars. between The or sides checking the sides of the cars Allen was on track and the inches, feet, nine cinder cars on track about two was considering grabirons cars, projected without on cinder which 4-j- switchyard inches. lighted. customary It to The was was ring switching bell be when the was to about anyone if moved, working customary, was nearby. It was also engaged checking passing 'Allen switchmen to tell cars, for by working. if him cars be where he place were to switched switching present The foreman of the office crew yardmaster yardmaster by to ivhen Allen directed foreman, 5, check the on cars track and the at time 'switching movement, engaged that duties knew x\llen his fact, switching crew 5; between tracks foreman of the Allen) (or person Allen at a saw he believed to be distance engaged cheeking I2'5 yards, lantern, or with his 5, on track when the foreman cut loose the two cinder cars and per speed shunted track at of four to six them 'west on miles switching foreman, position, The hour. could have called from his Allen, so, to did not the foreman did not think that but do because 4, danger was in track It was Allen from the shunted cars on switching signal warning or move- uncontróverted no by whistle, given bell, The shunted cars ment or otherwise. Allen, noise, by seen heard little, any, made if and were not or checking track of the train on whose attention was directed testimony took him into all 5. There was that Allen’s duties switch-engine yards, he crew‘would parts where knew but, ordinarily, up before ears, be switching be trains -would mad'e them; rarely another go Allen would out check ever would adjacent engaged in up on track while he was train cheeking made crew, switching except No a train. member foreman, actually knew that he was saw Allen in the checking 5, the time cinder engaged the train on track 4, or knew movement would ears -were shunted onto track that such danger risk him. was tried and be attended with tc The cause theory Allen, defendant plaintiff, that the submitted necessary Allen, company knew that it was railroad performance checking on the train track of his duties and, to track the cars back face toward obligation of defendant therefore, 'it became crew, switching employees in the company, and its railroad signal, bell, whistle, man or other lookout warn Allen precautions taken cars, none cinder such crew, the failure to take by' switching action- warning Allen constituted give precautions and to theory part. position able on defendant’s *16 1125 negligence defendant was that there was part, no actionable on its plaintiff Allen and that the assumed all the risks incident to the switch-yard, movement of the cars in and it that was his the law wherefore, under to look out for his own safety; the de urged fendant it was a that entitled to directed verdict. Said Division denying court,
Two of this
defendant’s contention that
it was
(292
737)
to
W.
736,
entitled
a directed verdict
l. c.
:
S.
“There was
ample
jury
evidence from
dangers
which the
could find that
(Allen)
dangers
plaintiff
exposed
to which
was
by
created
appellant and
or
fully
by.the ap
which were
should
been
have
known
pellant’s switch
and
plaintiff
plain
foreman
to
not
were unknown
obviously
ly
perceptible
really
to his observation. There is
no con
troversy
facts,
being
about the
the contention
that
it
not
cus
tomary to warn
car checker of
in the
a
the movement of ears
switch-
required
yard;
plaintiff
safety;
that
to look after his own
by
cars;
that he
the risk of
cinder
and'
assumed
struck
court
on
should have directed a verdict for
that
evidence
by
fallacy
shunting
of
that,
the defendant. The
this contention is
nighttime
cinder cars
onto the track
it was
in the
where
known
plaintiff
working,
light
that
without a
or man on the cars
any
warning
kind, appellant
without
of
created an unusual
true,
by
according
appellant,
that,
If it
as contended
hazard.
practice
in defendant’s
cars could be shunted dan
to
gerously
place
plaintiff
working,
near
where
without
to the
warning
knowledge
practice
him or
of
custom or
reasonably
doing
system
safe,
of
work
part, then the
his
not
reasonably
provided
place in
plaintiff was
with a
safe
.
risk.
.
.
work,
he
assume
The demurrer
did not
.to
properly
evidence was
overruled.”
reversing
ruling
judgment
court in
Allen
In
this
announced, Supreme
opinion
case, the Federal
Court
a unanimous
by
(276
court,
Mr. Justice Butler
U. S. l. c.
that
delivered
Congress
plaintiff
:
Act of
under which
seeks
seq.)
168 et
“The
liability
carriers
rail
possession of the field
recovery took
engaged
employees
injuries
their
way
sustained
commerce,
superseded
subject.
state laws
and
Liability
interstate
55.j
223 U.
This
Cases,
1,S.
Employers’
ca^e
[Second
principles
of the common law
act
governed
plaintiff
States.
cannot
the United
The
the courts
applied
as
negligence
part
defendant.
absence
recover
And, except
Horton,
U. S.
233
502.]
Air Line v.
[Seaboard
employee
act, the
assumes
ordi
in Section
specified
fully
and,
obvious
known
employment
of his
nary risks
extraordinary risks and those
due
by him, appreciated
employees.
v. Pennsyl
and fellow
employer
[Boldt
Ry.
445; Chesapeake & Ohio
S.
245 U.
Co.,
R. R.
vania
Nixon,
v.
If, upon
record,
U. S.
an examination of the
218.]
it is found that as a
of law the evidence
matter
is not sufficient
sustain
findings
judgment
the essential
be reversed.
fact, the
will
Ry.
M. &
.
St. P.
.
Coogan,
Co. v.
S.
[C.
U.
474.]
The
jury
negligent
court authorized
fail-
to find defendant
ing
rung
sending
to cause the
bell to be
the cars
along
light
opinion
without
and unattended.
below
starting
declares that
running
switch
without
ringing
blowing
negligence;
bell or
a whistle was evidence of
if, according
practice,
cars
could be shunted dan-
gerously
place
working,
near to the
where
without
*17
any warning
‘knowledge
him or
practice
to
of such custom or
on
part,’
system doing
the work was
reasonably
not
safe and
plaintiff
provided
reasonably
a
place
not
with
in which
safe
work,
to
.
.
did not assume
risk.
.
The decision on
point
this
contrary
to
rule
followed
Federal courts.
Humphreys,
Aerkfetz v.
765 (2d) 53, 55, recently 20 Haldeman, case In Reading Co. v. Fed. a by Circuit, Third Appeals, recovery Court ruled the Federal damages sought employee, for the death- of a who was .was of an which ivas killed-by in front of the tender stepping (cid:127) warning, a being backed, without without' .lookout man switch-yard, along track in defendant’s where tender,; a switch employed years, a number of his for duties had been the deceased light repairs. court, make Said being oil, inspect, the, judgment in reversing a favor of the administratrix plaintiff, in which “It work on of decedent’s estate: thus be seen that the will noise incident engaged peril; the decedent was one of en- uncertain movement escaping steam in such yards, warnings been, or could system fact has indeed gines, the that no this by danger avoided, be made be, could have devised which by Connelley that, rule said hold to the it court reasonable Supreme Pennsylvania (cited Railroad, by Fed. Court v. ‘ 218 . Nixon, .), 271 U. from the nature Chesapeake v. S. self-preservation rest on employment, of such has to adequate protection, self-protectiоn, other can them, for no than holding has afforded them. And such been the reasonable negligence has then, been shown on the Seeing, law.’ that no warning a failing have system, railroad part plaintiff’s that the deceased evidence shown case view of the immediately track front of an on the coal dock stepped he its where, looked, if he had could have coming track seen (that) feet, we are to hold approach for constrained binding given instructions for the have defendant.” court should (C. Collingsworth Circuit), & Ry. A., W. Co. v. C. 6th In Norfolk engaged Collingsworth, (2d) 561, appellee, 32 Fed. appellant yards the switch railway ás a switch-oiler in duties injured, after dark company, was run down on October forward of a cut eleven or twelve box cars, end switch-engine moving backwardly along shoved switch-yard, the switch of which ap main-line track track oiling. Appellee engaged in sued under the Federal pellee was Liability damages injuries Act to recover in Employers’ for a Appellant’s denied, motion directed verdict below was flicted. allegations jury case to a trial submitted the two court moving eastwardly first, negligence: that “the without leading ear, on the having lookout and without a watchman main train, giving light on forward end taining a without approach;” notice of train’s signal and, second, any warning ordinary care by the exercise should “thе crew have known on the presence thus avoided the *19 Appeals, reversing judg Federal Court injury.” Said the the c. 563: (2d) 32 l. “We believe the Fed. motion for below, ment brought sustained. should have been The suit was verdict a directed Employers’ Liability Federal the Act. falls within This under and proof only upon recovery negligence, and we be a permits act upon evidence of lack due care was no there the lieve that touching any duty appellee. it owed to Appellee’s appellant part twenty-eight switches. oiled He each oil switch about duty was to Appellee posi- . . admits that he knew daily. . his times three
1129 dangerous. particularly It was; was it dangerous, tion was that a switch on the main line. He that admits it his to himself; to for the trains look out for that watch and knew he that making shifting track was up west-bound main used and cars ,was injured the crew of the and that that train him a yard crew, engine; that the cut of cars was ahead of the that and he working yards crew was in the night, knew that and that that running any trains. He, course, crew was this main-line also engine crew with this and cars out on knew that the main necessarily return a line, must to side either over the working point. which he or at some He other had switch at including 28 switches, particular oiled these one at he was p. working May injured, daily, 17th, since two m. until ten p. conclude, therefore, m. We that the falls within Toledo, ease St. . Allen, cited). 165 (and R. v. U. L. W. Co. S. other cases & ' ; . . . proof conditions, finding these fails to warrant “Under appellant. right ap- had negligence against the It to assume that The risk pellee hazardous, would look out for but it himself.. only ordinarily was, normally that incident all, after job.” _ _ respondent herein, urging an administratrix affirmance below, places upon rulings chief judgment reliance Chesapeake Ry. & Federal courts as Ohio v. Co. announced 462; Ry. & Ohio Chesapeake S. Co. v. De Proffitt, Atley, U. 310; Railway v. 360. Smith, Southern Co. Fed. An S.
U. they clearly us dis analysis cited cases convinces are from, controlling facts, bar, the case at tinguishable, precise question they involved herein. application have no case, supra, in a who was head brakeman plaintiff, In Proffitt a. trip yard a road a train railroad with crew leave train about engine, up attached to a road had been made cars which yardmaster “cut out three cars at the head end directed off a track and back and switch them come of the train go.” they ready proceeded Plaintiff up, and would couple n cars, out the three directed road to take engine, main track with returned to the road yardmaster, train, forward to the end coupled latter air-hose, operation necessarily re up coupling act track, rails of when a between the step him to quired acting from the under orders same switching crew, who were also switch-engine a cut of of a drove with the aid yardmaster, warning, standing without the rear into cars standing train, throw and the as to undue violence with such along twenty thereof, forward feet attached to front road *20 the track. by Plaintiff was knocked down reason the im violent pact, over train, run the injury and sustained serious There was evidence that it was customary the train to be “worked” ends, at operating both the crew at end, yard road the front the and operating crew' rear train, at end plaintiff the denied that but he familiar custom, appeared was with the and it that he had not theretofore been a member of crew particular the road train question. yard Both road the crew and the working crew were at under, the time the immediate yard orders direction of the same master, plaintiff who did' not that the crew were work inform ing train, plaintiff anything rear of at the the had no notice that done beyond merely attaching was to rear end of train at the the plaintiff the chboose. Under such facts, it was held that did not extraordinary assume the risk plain palpable attributable to the premises. Atley the master the In De case, the acting supra, plaintiff, head who as brakeman on an interstate freight train, engineer was directed of the train to leave the signal go inquire train forward to a tower operаtor it journey along whether was to move the train forward on its safe line. Plaintiff main went to the tower and received the informa tion operator proceed from the it train, and, that was with his safe upon descending platform to the in front of the tower and beside track, approaching. the'main he saw his train When the approached platform, train attempted he to board the speed engine, train moving but the slipped such that he between wheels of tender seriously fell and was in- jured. moving speed at train was twelve miles an hour plaintiff attempted when to board engine, he was unable to accurately judge speed Held, position platform. its from his on the plaintiff did risk extraordinary arising not assume engineer negligent failure to operate use due care speed, a moderate rate as to so enable .at board peril. case, without undue In the Smith supra, plaintiff’s intestate, employed who switch-tender in defend- walking along yards, yards, ant’s railroad a track approaching engine, night, with his back he was over- “drifting” engine, killed taken and making slowly track, very him behind little noise. While court, case, “plaintiff’s proof in that remarked appellate ’’ margin beyond insufficiency, yet line of not far the court found give support theory that there sufficient evidence to to the duty, looking engineer along was inattentive to his was slowly moving engine, the track otherwise he could ahead un- walking along doubtedly eighty seen the decedent the track have engine, engineer hundred ahead of the that the could to one feet *21 stopped moving engine have the slowly feet, ten or could have given warning effective probably opinion to decedent. the give space to a ease does not although relation or discussion of the evidence, seemingly opinion the duty measured the breach of on the part engineer peculiar of the circumstances of that case. lays
Respondent herein testimony stress engineer of the switch-engine glare of the that his vision was blinded of headlight engine e^ee^c
^le on the front of the of train 95, and any object No. that he was unable to see .ahead backing switch-engine until engine after the of train passed switch-engine. Respondent No. 95 had seemingly takes position part engineer it was on the of the switch-engine along have continued to move the the main-line track circumstance, under such and movement the switch-en gine engineer been stopped should have when the knew that his respondent judicial vision was blinded. Counsel for cite au no thority in support position, part of such research on and our dis discloses, engineer covers none. So far as the evidence of the switch-engine right anticipate had the reasonable main clear, line track was when he started to switch-engine move the from unquestioned the west to the east side and it that the switch-engine moved at the usual reasonably and slow only eight per speed say sis to hour. miles We cannot that the positive engineer imposed upon duty obligation law or switch-engine stop momentarily the movement of the while he was glare headlight blinded oppositely moving imposition duty, think, train. The would we un reasonably unpractically hamper and and retard the move efficient switch-yard. engines and trains in the ment of respondent argued by inspect-
It is that the duties of Martin in moving peculiar engrossing ing train No. were of such and permit looking backward,
character as not to of his or him, danger in order to whether he see was in engine; approaching and, therefore, it is claimed that employees defendant and its control higher switch-engine greater duty owed to Martin a or to watch out safety, approach for his him switch-engine, to warn switch-oiler, they track-walker, section-man, than owed to a mere or yard duties are checker, car whose such that those classes em- any up work ployees free, time, are to look from their and ascer- danger. analyze they we tain whether are As read the de- rulings courts, they cisions thе Federal make no distinction yard employees, they impose greater duty between classes of no obligation upon railway employer inspector toward a car than yard employee, section-man, toward other whether he be a seeming
switch-oiler, or car checker. The Federal courts trackman, yard ly apply the common law that adhere to principle work, regardless character of employees, of their class their particular them regardless precise duties, of their must switching safety, own and that selves look out for their yard engaged move obligation, are under no crews safety warn ments, employees, -the or to to watch out for peril them, actually seen to be immediate oblivious unless Allen, 165, 173; &L. W. R. R. Co. v. 276 U. S. [Toledo, St. thereof. 219; Ry. & S. Aerkfetz v. Chesapeake Nixon, 218, Ohio Co. v. U. Pennsylvania Railroad 420; Connelley 145 U. v. Humphreys, S. (2d) 56; Reading Haldeman, Co. v. Fed. 201 Fed. Co., 690; Lutton, (2d) 689, Pennsylvania Co. v. Fed. ;55 Railroad *22 (2d) 563; 32 Gil Ry. Collingsworth, v. Fed. & W. Co. Norfolk (2d) 4Co., v. Railroad Fed. mer 963.] experienced Martin rail- herein discloses that was an The evidence according testimony, his had worked yardman; own he that, road night con- switching yard on shift the defendant’s injury; tinuously years prior for his that he two daily, 95 at inspected No. about the had the train during evening, period of of in the the whole two same time engine No. 95 the of train years; he knew and -caboose thаt that daily yard, upon of that train the outer removed the arrival train No. necessitated the caboose from and that removal of the occurrence, switch-engine; unusual that it was not an use of a the switch-engine to move train No. for down upon arrival of the the yard; end of that from the west to the east the main-line track the night injury, the of with its electric switch-engine, on his the he saw headlight upon track in front of burning, standing the main-line upon end of the the of depot at the west arrival the outer position between No. and the he took a track No. train; inspecting of that that he purpose the main-line switch-engine being in the at any other that know of “didn’t once turned his head look night;” that “never he time that switch-engine coming whether No. west to see the toward 95;” off to take caboose train No. main-line track down location of tracks in with the relative familiar that he was space tracks, between of the switch-yard, the- width engines of safety pass- zone between the sides ears knew that the feet; five that main-line about ing be, and the on track track. beyond body protruded safety his zone any part of if knew danger struck be in of would five feet he of track;, ap- knew and the main-line that he moving or train safety danger getting of the zone of five outside preciated night danger, injury, on the of his he feet; appreciating and, night when track that "aimed to be the clear main-line of the making inspection.” of evidence There is not a scintilla any given or switching record that the crew had other dif- Martin any warning switch-engine upon ferent movement night prior previous given occasion, any than was on the time, headlight injury. undisputed of his that the electric The evidence is lighted tender burning on the forward end the tank switch-engine eastwardly track, main-line as it moved projected headlight was and the evidence is that beam*of the backing and on both sides switch-engine, some distance ahead of the ' positive of the main-line track. All evidence is .effect switch-engine continuously as the ringing bell track; although is easterly along main-line there moved character, however, by in- purely negative testimony, some bell of the spectors they did "hear” the Martin and Hawn that been, may the bell have switch-engine, failure to "hear” ringing No. 95 was, of train and the doubtless because of the noise engine-bell evidence, there is As we view of that train. proof any that Martin an absence or substantial reasonable ordinarily danger which was any than exposed to risk or other manner of the employment, by work reason of the his incident night switch-engine operation movement injury; proof departure (upon of a there substantial switching opera- practice night plaintiff’s injury) from the switch-yаrd. generally tions followed opinion are Upon evidence, we all the facts and circumstances *23 principles in the that the instant case must be ruled accordance by Federal the applied of and announced common law as the Allen, Toledo, v. & Railroad Co. Supreme in St. Louis Western Court striking evidentiary which case U. facts in bear S. the Federal rule Applying bar. the similarity to in the case at the facts (as arising Em Federal under the do in cases this court bound to herein ployers’ Act), we to hold that the evidence are constrained any actionable defendant-appellant the of is insufficient to convict plaintiff Mar touching any duty deceased negligence it owed to the by risk Martin premises, in the encountered tin the employment, normally ordinarily incident to his one that recovery his in for assumed, which is a bar to which risk be v. Rail Liability Act. jury Employers’ under the Federal [Hoch The Co., Federal'decisions there l. c. wav cited.] Mo. jury a ver to return court, therefore, have directed the trial should defendant, ten peremptory instruction renuested in for as the dict close of all the evidence. dered at the appears
II. It however, plaintiff’s record herein, the sought inquire counsel plaintiff, of on below, the trial “what was ordinary custom, your
the usual during there, service as to sw^kmen, crew, riding or some of the switсh both passing ends of while down through yards line;” on the main and that defend objected ant inquiry ground such custom, that no such practice, or rule, pleaded petition, petition and that the did charge duty plaintiff defendant breach in with a of toward any violation custom, of practice, or rule. The trial court sus objections tained inquiry, thereupon and counsel by to prove, testimony “during offered plaintiff, his ex perience and inspector defendant, observation car for it was ordinary practice switching the usual and custom and crews yards defendant’s switch Hannibal, Missouri, at to ride both switch-engine passing up ends and down the defend through (and) ant’s yards, main-line said . . for at switching switch-engine least one of said crew on each end said to be objected under the circumstances mentioned.” Defendant to the proof, upon ground aforestated, offer of for the reason plaintiff’s By proof. rulings the trial court denied offer of such court, plaintiff opportunity offering trial denied the was. .the (if proof practice was), of a custom or such there in defendant’s switching switch member least one crew to take position switch-engine, and ride at each end practice alleged track. such custom main-line No petition, plaintiff charged and no breach of toward petition respecting any custom, practice, a violation of rule, employees charge defendant its movement and operation switch-engine. petition, plaintiff’s main predicated upon theory herein, negligence instruction charge part defendant, employees and its of said switch- engine, failing ordinary safety to exercise to look out for the care reasonably danger him of being and render free of the failing give switch-engine, plaintiff any struck said and in warning approach switch-engine. words, of said In other sought charge petition, allegations, defendant with its only prescribed by general as is rules of the common practice aforesaid, law. The custom or if the same had been allowéd *24 trial, shown in on the would have taken the case out to be evidence required general law, of and would have the defendant rules against duty, arising wholly a out a to defend the violation of of imposed general custom, usage, practice, or which is not the local law. rules the intestate, a Bixby, plaintiff’s section-
In Kirkland v. Mo. (on collision of a hand-car which he was foreman, was killed in the riding work) to his one of defendants’ trains.- The collision fog, occurred charged in a the petition charge employees “that-defendants their . said . . negligent failing ring further careless to- the bell frequent sound whistle running the at such intervals, through fog, the as would warn crew hand-car of approach ” . of said . . general denial, pleas train. was a The answer contributory negligence assumption c£ risk. Di- Said this court, upon (under vision of our passing admissibility allegations of- petition) tending received evidence on the trial long to standing upon show that there -custom of was a sounding railroad blowing as to the of the bell of the whistle frequent intervals, foggy, pur- at the weather was- warning pose (1. seq.): approaching section men trains c. et reading “A full petition plain- and the shows evidence that proven tiff failed in the case, except save and a custom existed give during warning foggy question is, weather. The then was this pleaded, custom competent. general thereof evidence The warnings rule is required. to section are men not We have «quoted fog petition. all that is said about is no There allegation give warning a during foggy as to custom to weather. petition duty . . -charge . should a and its violation in order liability. duty show If the violation of a from arises the failure long custom of standing, pleaded to observe a the custom should be clearly point duty. words, as to so In other if out usage, usage or custom, arises the custom or should be if pleaded, pleaded no of a custom is admissible. evidence - petition only pleaded This should not have this local custom or usage, knowledge it. but should have averred that deceased had Cyc. general seq.] et As section men the rule of is law [12 they safety, warnings look for their own are must out and no (cid:127) required general law given to be them. If this rule of is to changed by particular usage custom, local or ’a this custom Hayden usage pleaded. Admr., App. In v. Grillo’s Mo. must be ‘ necessary plead special custom, J., l. c. said: It is 5, Thompson, general upon, custom is relied to take a ease out where ; thing . is with prac rules of law.’ The reason usage usage pleaded, if such local re tice that the local should be the,in upon lied out of rules law. In to take case the usual usage plain or custom was case local relied take stant usage general That or custom case out of the rule of law. local tiff’s foggy along River Missouri was to the effect weather gave (rail-) road, bottoms, the trainmen section men warn on this ing by ringing sounding frequent 'in the bell and the whistle pleaded would usage custom, proven, local if tervals. This *25 general take the such case out demands that rule. Fairness usage pleaded. pleaded case, custom this and all and It is not tending usage not and custom should evidence such show present have been To like effect petition.” admitted under the 640, 641. ruling our l. Co., Mo. c. v. Railroad Nivert or case, custom present In the view that the wé' are inclined to the sub- practice sought testimony plaintiff by to be shown ordinary lack matter, merely of a stantive and not evidential pre- is part, ordinary care measured as care Therefore, proffered by general scribed rules of the laiv.' testimony local plaintiff, tending existence of the to show the court, practice, properly custom or the trial for denied violation practice, reason that the or a existence of the custom ground petition thereof, pleaded Were a substantive liability. of defendant’s judgment of question, then, is whether the immediate remanding outright,
circuit herein shall be reversed without court retrial, judgment the cause for shall be reversed and or whether respondent court, cause order that the remanded the circuit plead may petition, administratrix amend so as to local was) usage (if proof was. tendered custom whereof such there may existed, prior trial below. There have and denied on the injury, recognized practice in custom or Martin’s an established and Missouri, switching yard Hannibal, for least at at defendant’s outer position switching ride, a or take one the members of a crew to moving switch-engine, upon, while forward of a foot-board practice arisen, operating may or have or which custom said switching for ‘may crews, and its have been defendant established inspectors safety car other benefit, protection yard. A engaged in in said number employees, while their duties Ap- Federal Circuit Courts of of recent of several decisions Liability peals, brought Employers’ Federal actions under the exception general rule or doc- Act, seemingly created have cases, supra, the applied in and kindred of law the Aerkfetz trine that, seeking action, or plaintiff’s where suit exception Liability Act, grounded is recovery Employers’ Federal under the alleged pleaded rule, practice, to have been es- upon custom, or employer protection benefit tablished the railroad belonged employees plaintiff time of the class proof recovery upon injury, plaintiff substantial to a entitled rule, custom, practice, or establishment of such the existence and proof injury by, was caused plaintiff’s substantial observe, from, of, failure to established a violation resulted part employer the railroad rule, custom, practice, working the line of his duties. employees, its v. New York, (C. N. &H. H. Rd. A.), (2d) [Pacheco Co. C. 15 Fed. exceptional cases there In such instances, it cited.] *26 employees has been held that railroad for whose pro benefit and tection rule, practice custom is shown to have been established, working right duties, line of rely have the upon their observance such estаblished rule, custom practice; and a thereof, employer railroad violation or its takes employees, general the ease out of the rule law, announced in as the Aerkfetz eases, supra, general kindred rule is to effect company railroad obligation owes no employees toward working yards, tracks, its or near about its to sound a bell or whistle, man, or to station a lookout so warn employees as to approach switch-engines or cars thereabout. [Chesa peake Ry. & Co. Mihas, 92; v. U. 74 L. Ed. Ohio S. Pacheco 467; N. & Co., (2d) v. N. H. H. Rd. 15 Fed. Y., O’Donnell v. Balt. (2d) (Mo. & Ohio Co. S. 1), Rd. Div. W. 929.] general apparent exception In view of the an- rule, to the cited, cases nounced in the we the instant cause last conclude should remanded to the circuit in order ad- court, be plaintiff’s may petition ministratrix estate amend the deceased advised) (if plead she so so as to the establishment and the viola- (if practice be), relied custom or such there to take tion general applied rule of law the decisions of the case out States, United order that the administratrix the courts of the do) may proof substantial the establishment (if able so to offer practice. custom or of such violation remanded judgment reversed, nisi is and the cause is therefore ElUson, GG., Lindsay concur. the circuit court. adopted foregoing opinion C., PER CURIAM:—The Seddon, the.judges concur. All of court. opinion as the George F. Haid George al., et W. v. Strodtman ex rel. The State (2d) 466. W. S. Appeals. Court St. Louis Judges of July 9, One, 1930. Division