main lines, or of a main line and a branch line of the same company with each other. The Legislature never intended to apply it to, and it has no application to, every connection upon a continuous line of railroad in a single direction of its single track with its double tracks, or of those tracks with its side tracks, when all are directed by the same management and controlled by the same operator. United States v. Oregon & California Railway Co., 164 U. S. 526, 540, 17 Sup. Ct. 165, 41 L. Ed. 541.

It is neither decided nor admitted that this statute imposes any duty upon a railroad company to stop its engines or trains at every crossing of another railroad in the yards of railroad companies where switchmen or flagmen are stationed to notify enginemen of danger and of safety in making such crossings and where trains are handled by the signals of such switchmen or flagmen. But for the purposes of this case let it be conceded that this statute applied to the Burlington crossing, and that it was negligence per se for the "Soo" Company to cross the track of that company without stopping. "Negligence" is a breach of a duty. Those only to whom that duty is due and who have sustained injuries of the character its discharge was designed to prevent can maintain actions upon it. This statute imposed no duty to stop at this crossing in favor of all the world upon the "Soo" Company, nor in favor of any party for whose protection it was not enacted. Now it was passed to protect those riding upon railroad trains from injuries resulting from collisions with crossing trains. To parties thus injured, and to those in danger of injury so caused, and to them alone, the "Soo" Company owed the duty to stop before crossing the Burlington track, But it did not owe this duty to the Great Western Company, or to its operators on the stock train, or to any of the thousands of persons who were riding upon the line of the Northern Pacific Railroad between St. Paul and the Pacific coast, but were not crossing nor intending to cross this Burlington railroad. It is said that it owed this duty to its own passengers. Let the proposition be conceded. It owed this duty to its passengers to prevent injuries to them by a collision with crossing trains. It did not owe any such duty to them to protect them from collisions with trains which were not crossing the Northern Pacific Railroad, and the injury sustained in this case did not arise from such a crossing train. The incidental fact that the "Soo" train reached the north end of the Northern Pacific single track a few seconds earlier than it would have arrived if it had stopped for the Burlington crossing is too remote and inconsequential to make its failure to stop there a cause directly contributing to the actual collision with a train coming from the north. Every collision of a through train with persons, trains, and animals, on its way from St. Paul to the Pacific Coast over the connected rails of the Northern Pacific Company certainly could not be attributed lawfully to the fact that it failed to stop at some crossing in St. Paul on the ground that, if it had done so, it would not have arrived at the points of collision at the times when they occurred. And the failure of the "Soo" train to stop at the Burlington crossing in this case cannot be more reasonably held to be one of the direct causes of this accident. The statute invoked therefore was irrelevant to the issues in this case, it did not render evidence of the rea

sonable care of the enginemen of the "Soo" Company inadmissible, and it must be laid aside.

Lake v.

Was the evidence of the habit or custom of the operators of similar Great Western trains over the same tracks under like circumstances competent testimony upon the issue of the reasonable care of the operators of the "Soo" train? The presumption was, as has already been said, that these operators were of ordinary intelligence and prudence. The best test of reasonable care in a given case is evidence of the degree of care which such persons commonly exercise under similar circumstances where such evidence is available. Hence, upon the question of negligence or none, evidence of the ordinary practice and of the uniform custom, if any, of such persons in the performance under similar circumstances of acts like those which are alleged to have been done negligently, is generally competent evidence, because it presents to the jury a correct standard for the determination of the issue. Shenango Furnace Company, 160 Fed. 887, 895, 88 C. C. A. 69, 77; Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 416, 417, 12 Sup. Ct. 679, 36 L. Ed. 485; Union Pacific Ry. Co. v. Daniels, 152 U. S. 684, 691, 14 Sup. Ct. 756, 38 L. Ed. 597; Washington, etc., Ry. Co. v. McDade, 135 U. S. 554, 569, 10 Sup. Ct. 1044, 34 L. Ed. 235; Texas & Pacific R. Co. v. Barrett, 166 U. S. 617, 619, 620, 17 Sup. Ct. 707, 41 L. Ed. 1136; Choctaw, etc.. R. Co. v. McDade, 191 U. S. 64, 67, 24 Sup. Ct. 24, 48 L. Ed. 96; Charnock v. Texas & Pacific R. Co., 194 U. S. 432, 437, 24 Sup. Ct. 671, 48 L. Ed. 1057; Chicago Great Western Railway Co. v. Egan, 86 C. C. A. 230, 159 Fed. 40. There was no error in the admission of the testimony relative to the habit, the practice, or the custom of the Great Western operators while taking like trains under similar circumstances over the tracks here used by the "Soo" Company.

A single question remains. It is assigned as error that the court below denied the motion of the defendant at the close of the trial to dismiss the action on the ground that the evidence conclusively proved that the plaintiff was guilty of negligence which directly contributed to cause the collision and the losses. The question which this specification presents is not the issue of fact whether or not the finding of the court below that the "Soo" Company was not thus guilty was sustained by a fair preponderance of the evidence. It is this question of law: Was there conclusive proof that the "Soo" Company was guilty of causal negligence, and no substantial evidence that it was not so guilty, so that no issue of fact regarding this matter remained for determination? When an action at law has been tried by the court without a jury, its findings may not be reversed for any error of fact. Rev. St. U. S. §§ 649, 700, 1011 (U. S. Comp. St. 1901, pp. 525, 570, 715); Hall v. Houghton & Upp Mercantile Co., 60 Fed. 350, 8 C. C. A. 661. A finding of a court without a jury in an action at law has the same effect and is reviewable to the same extent and by the same course of procedure as the verdict of a jury, with the single exception that when the finding is special the question whether or not the facts found sustain the judgment is open to determination by the appellate court. United States Fidelity & G. Co. v. Board of Com'rs, 145 Fed. 144, 150, 151, 76 C. C. A. 114, and cases there cited; Hall v. Western Union Tele

graph Co., 162 Fed. 657, 660, 89 C. C. A. 449; Hill v. Walker, 167 Fed. 241, 256, 92 C. C. A. 633.

The evidence which conditions the issue thus presented consists of the testimony of more than a dozen witnesses, and no good purpose would be served by a recital of it here. There was, it is true, testimony which, if it stood alone, would have sustained a finding of a failure of the fireman upon the "Soo" engine to exercise reasonable care to look out for signals and obstructions as he passed up the single track of the Northern Pacific Company. But there was also substantial evidence of these facts: There was a single track of the Chicago, St. Paul, Minneapolis & Omaha Railroad Company which crossed the double tracks of the Union Depot Company south of Third street, and there was an Omaha stopboard by the side of this double track about 700 feet southwest of the Third street viaduct at the point where the double tracks leading from the Union Depot began to curve from east to north. From that point to a point very near the passageway under the Third street viaduct the view of the engineer of the "Soo" train to the north was completely cut off by the embankment which supported Third street. There was a point just before his engine went under the viaduct where he could have seen to the north through that passageway; but as the engine passed under the bridge the smoke from it circled down and obscured his vision, and thereafter his view of the approaching Great Western train and of other objects to the northwest was obstructed by the boiler and the front end of the engine so that his opportunity to see that train and the situation in front of him north of Third street was practically open to him for an instant only, just before he passed beneath the viaduct. It is clear from the evidence here that no court could hold as a matter of law that the engineer was conclusively proved to have been guilty of causal negligence. The fireman could have seen the Great Western train as he approached it from a point near Third street and could have also seen the stop signals which the evidence shows Maloney, the switchman at the north. end of the single track, was giving, if he had been looking out of his side of the engine. But it was the custom to run these trains over this single track upon the signals of the stationary switchman. McGuire had examined and seen that the switches at both ends of the single track were lined up for the passage of this train onto the double track of the Northern Pacific Company, and his signal to come on which these enginemen had received was authoritative notice to them that. these tracks were ready for them and free from obstruction so that their train could pass safely over the single track. The fireman had received this signal at the Omaha stopboard 700 feet from the Third street bridge, and had given it to his engineer who drove his engine around the curve and up the hill. It was necessary and customary for the fireman on an engine drawing a heavy passenger train like that of the "Soo" Company around this curve and up this grade to get down from his seat in the engine, and feed, tend, and promote his fire immediately after the train started from the Omaha stopboard, so that steam sufficient might be produced to enable the engine to take the train up the hill. While he was discharging this necessary duty, he could not look out in front of the engine. As soon as the train started around the

curve, this fireman got down from his position in the cab, fed and tended his fire until the engine was about entering upon the double track at the north end of the single track, when his attention was first called by a visiting engineer, who was riding on the engine to learn the road, to the fact that the Great Western train was coming down the west one of the double tracks and was not likely to stop, and it was then too late for the engineer of the "Soo" Company to avoid the collision. There was evidence on the other hand that other firemen had completed their necessary firing and had been able to get up into the cab where they could look ahead by the time they arrived at Third street. But there was also evidence that the time and work required here varied with the weight of the trains and the condition of the fires in the engines, and the fireman upon this engine testified that he was engaged in attending to his fire until it was too late to avoid the collision.

It is only when the evidence upon the issue of negligence or of contributory negligence is so clear and conclusive that a finding but one way can be sustained upon it, that the question in issue becomes one of law and the duty devolves upon the court to effectuate that conclusion without weighing the evidence upon the issue. This case was tried by the judge whom the parties selected and whom they agreed should try it before the action was commenced. He saw and heard the witnesses and decided, upon consideration of the weight of all the evidence, that the enginemen of the "Soo" Company were not guilty of any negligence which directly contributed to the accident, and a review of the printed testimony has failed to convince that there was no substantial evidence to sustain his finding, or that it was his duty to disregard the question of fact upon a consideration of the sufficiency of the evidence and to direct a judgment for the defendant on the ground that there was no substantial conflict in the evidence upon this issue. There was, therefore, no error in the denial of the motion of the defendant to that effect.

Finally, counsel for the Great Western Company contend that the court below erred in including in its judgment against that company. upon the facts found the amounts paid out on account of injuries to the passengers of the "Soo" Company. They support this contention by the argument that the "Soo" Company was guilty of some causal negligence, that if it was guilty of any negligence the passengers could have recovered their damages from it, and that after it had paid those damages it could not have recovered them of the Great Western Company, because the two companies were joint tort-feasors. But the court below found that the negligence of the Great Western Company was the sole proximate cause of the collision and of the injuries and damages which resulted from it, and that the "Soo" Company was not guilty of any negligence whatever which directly contributed to cause them. If those findings were right, and our review of the record has convinced that there was no error in the trial which can disturb them, the "Soo" Company was not liable to its passengers for the injuries and damages they sustained by this collision, and the contention of counsel here is without foundation.

The judgment below must be affirmed, and it is so ordered.

(176 Fed. 245.)

ILLINOIS CENT. R. CO. v. HART.

(Circuit Court of Appeals, Sixth Circuit. February 8, 1910.)

No. 1,987.

1. COURTS (§ 372*)—FederAL COURTS-AUTHORITY OF STATE DECISIONS QUESTIONS OF GENERAL LAW.

In the absence of a state statute governing the subject, the question of the liability of an employer for an injury to an employé is one of general law, as to which the federal courts are not bound by the decisions of the state courts.

[Ed. Note. For other cases, see Courts, Dec. Dig. § 372.*

State laws as rules of decisions in federal courts, see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553.]

2. MASTER And Servant (8 191*)-MASTER'S LIABILITY FOR INJURY TO SERVANT-NEGLIGENCE OF FELLOW SERVANT.

It is the settled rule in the federal courts that an employer is not liable for an injury to an employé occasioned by the negligence of another employé engaged in the same general undertaking, and it is not necessary to the application of this rule that an employé should be engaged in the same operation or particular work; but it is sufficient if the two are in the employment of the same master and engaged in the same common enterprise, both performing duties tending to accomplish the same general purpose, although they may be in different departments.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 475479; Dec. Dig. § 191.*

Who are fellow servants, see notes to Northern Pac. R. Co. v. Smith, 8 C. C. A. 668; Flippin v. Kimball, 31 C. C. A. 286.]

8. MASTER AND SERVANT (§ 185*)-MASTER'S LIABILITY FOR INJURY TO SERVANT CUSTOM OF DOING WORK.

In order that a custom of railroad employés to do work in a particular manner should be binding on the company, and render it liable for an injury resulting to another employé, the custom must have been known to it, or have been so general that its knowledge must be presumed.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 185.*] 4. MASTER AND SERVANT (§ 185*)-DUTY OF RAILROAD COMPANY-OPERATION OF ROAD.

While a railroad company owes a positive and nondelegable duty to its employés with respect to the construction and maintenance in proper repair of its cars, tracks, and other appliances, yet with respect to the operation of its road its duty extends no further than to exercise ordinary care to provide a sufficient number of reasonably competent employés, make proper rules for their government, and exercise proper supervision over them, and when that has been done it is not liable for an injury to an employé in the operation of the road through the negligence of other employés in the operating department or their failure to observe the rules, notwithstanding such negligence makes the place unsafe to work in. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 385421; Dec. Dig. § 185.*]

5. MASTER AND SERVANT (§ 198*)-MASTER'S LIABILITY FOR INJURY TO SERVANT-FELLOW SERVANTS-RAILROAD EMPLOYÉS.

Plaintiff was employed by defendant railroad company as signalman; his duty being to keep the boxes and appliances used in connection with its block signal system in good condition and repair. While working at such employment, at a place on the outside of one of the tracks of defendant's double-track road, the baggageman on a rapidly moving train on the opposite track kicked a block of ice from the car, and its momentum caused it to slide across the tracks and strike and injure plaintiff. The 100 C.C.A.4