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mine anew in each instance whether it needs any testimonial aid to interpret the word or phrase in dispute." 3 Wigmore on Evidence, § 1955, p. 2601.

In this instance the real purpose of the evidence offered was to establish a general standard of right and duty. In the light of the facts found, the meaning contended for would make the rule void, or at least wholly irrelevant, because it ignored the obligation resting on the engineer of the freight train to anticipate, under the circumstances, a rightful change of the position of the signal within half the distance he could see the crossing. Consequently prejudicial error was not committed in rejecting the evidence. As a matter of fact, the defendant did get its interpretation of the rule quite clearly before the jury, but the court saw fit to cover the legal duty involved by the instruction which has been quoted. The court based its instruction on the opinion of the United States Circuit Court of Appeals for this circuit, in the case of Kansas City, Ft. S. & M. R. Co. v. Stoner, 51 Fed. 649, 2 C. C. A. 437,

where it was said:

"Aside from the provisions of any specific rule upon the subject, the law requires of parties charged with the control and management of trains moving upon intersecting lines of railway that as they approach a crossing they must exercise due care to secure the safe passage of the train over the same, and in this respect they owe this duty not only to those whose persons or property may be upon the train controlled by them, but also to those who may be upon the train of the other intersecting line. In the performance of this duty it is incumbent upon the parties in control of the train that they shall exercise a proper lookout for the approach of another train, and they must also have their own train under proper control, so that, if need arises, it can be promptly stopped." 51 Fed. page 652, 2 C. C. A. page 440.

"Under control," "under full control," and "under proper control" all come to the same thing in application, and are all relative, and not absolute, terms. A train running free at its highest rate of speed may be under full control. Running in a heavy fog, the engineer of a train should be able to stop it within the distance he can see ahead. Under a great many circumstances it is sufficient to adjust control to the distance the engineer can see along the track. The fact that "under control" and "under full control" are not absolute, but are relative, terms, accounts for the different meanings which railroad men give them when they attempt to express themselves. It so happened that early in the trial the engineer of the passenger train was asked to give his judgment as to when a train is under control. He said, "When a man can stop it in a short distance." In the case of Neary v. Northern Pac. Ry. Co., 37 Mont. 461, 97 Pac. 944, 19 L. R. A. (N. S.) 446, a rule requiring trains to approach grade crossings prepared to stop, and to approach and pass through yards under full control, was under consideration, and the court said:

"The words 'under full control,' as used in

mean 'ready to stop at any moment; there is danger ahead.'' 37 Mont. at page 471, 97 Pac. at page 947 (19 L. R. A. [N. S.] 446).

In this instance the court was concerned

with the legal duty to be fulfilled at a gated crossing, the gate of which might, under certain circumstances, be properly turned against a train normally having a clear track. The court said that trains should approach that crossing under "proper control," and that proper control meant such control that the approaching train could be brought to a stop promptly should need arise. "Promptly" is the adverbial form of the word "prompt," which means ready and quick to act as oc

casion demands. Webster's New Interna

tional Dictionary. One of the occasions affecting the freight train in this case was that the gate might rightfully be turned against it. Therefore, as applied to the facts of this case, the instruction was correct.

It may be assumed that in answering special questions employing the words "full control" the jury understood the words to refer to the proper kind of control described by the court. That meaning is important, however, in but three special findings, all in the second series-the first, the first part of the third, and the fourth. Those findings may be eliminated from consideration without affecting the result, and the instruction defining "proper control" may be eliminated without affecting the result. Valid findings unaffected by the instructions clearly establish the situation confronting the engineers of both trains and the manner in which they dealt with that situation. This court is able to apply to the findings the proper rule of law. For the same reason, various assignments of error relating to expert testimony and instructions regarding the duty of an engineer at a gated crossing do not require individual discussion or mention.

The defense that the person who opened the gate was not an employé of the plaintiff, and did not exercise due care to ascertain if a train were approaching on the defendant's track, needs little further discussion. The agent at Moody was a woman. There was evidence that she was in the habit of asking some one to turn the gate. Who performed the physical act of manipulating the structure for her was, of course, wholly immaterial. In this instance the evidence was that the agent was on the platform when the decision to turn the gate was made. The testimony, including that of the man who turned the gate, was that the agent authorized the signal, except the testimony of a witness for the defendant, who was discredited, by an express finding of the jury. That the signal was rightfully set against the freight train was determined by special findings already considered.

[8-11] Little need be said with reference to the defense that the plaintiff's engineer did not use due care to ascertain if a train were

tal to the personal injury claims of passengers. As soon as the personal injury claims were settled the duty to reimburse the plaintiff arose, and interest on the amount was properly allowed.

The judgment of the district court is affirmed. All the Justices concurring.

stated before, each train was visible to em-, the plaintiff if the defendant were liable. ployés of the other after they came from be- Physicians' and surgeons' bills were incidenhind the hills on opposite sides of the station. The special findings were to the effect that after the passenger train came in sight of it the engineer saw the freight train; that from a point 1,000 feet from the crossing up to the crossing the engineer's view of the freight train was unobstructed; and that within that distance he looked for the freight train. The testimony of the engineer of the passenger train was not very clear with respect to his observation of the freight train. The jury were authorized to infer, however, that while he did not look at or watch the freight train in the sense that by special act he gave it monopoly of his eyes, he was visually cognizant of the movement of the freight train. He testified that after stopping for the crossing he looked, and that the gate was thrown against the freight train when it was more than 800 feet away. The jury found specially that he went on the crossing in the full belief that the freight train would observe and obey the signal to stop displayed by the gate.

The petition pleaded facts showing that the engineer of the freight train was guilty of reckless and wanton disregard of the safety of the passenger train, its passengers and crew. The jury were not instructed with reference to liability of the defendant for such conduct, notwithstanding contributory negligence on the part of the plaintiff. The findings of fact, however, establish the allegations of the petition. If it were necessary, this court could apply the law, disregard the subject of contributory negligence on the part of the plaintiff, and direct judgment for the plaintiff.

The trial was conducted by able attorneys, skilled in the art of examining and crossexamining witnesses, and skilled in the trial of train accident cases. Witnesses expressed themselves, not merely in different, but in discordant, ways, concerning the same subject. In some instances what the witness really intended to say was left uncertain. Contradictory testimony was given respecting most of the material facts. Accepting, as this court must, the evidence most favorable to the plaintiff, and the inferences from the evidence most favorable to the plaintiff, the findings of fact were sustained by sufficient evidence.

The foregoing covers everything essential to the fixing of liability for the collision on the defendant. Nothing else in the case requires extended discussion. The duty of the plaintiff to exercise extraordinary care toward its passengers was not owed to the defendant, and the principles governing the liability of a carrier to its passengers do not apply to the accountability of the defendant to the plaintiff. The letters and telegrams passing between the officials of the two companies authorized the plaintiff to settle sonal injury claims for the company at fault,

2200

souri. KansaS & TEXAS RY.

5330 (APPROXJ MILE).

HILLS

1000

STOP SIGN STATION

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Findings of Fact-First Series. "Q. 1. After said passenger train which was approaching Moody crossing had reached a point just past the hill, which was approximately 2,200 feet northwest of said crossing, did the engineer on said passenger train see the freight train of defendant approaching said crossing from the southwest? A. Yes.

"Q. 2. Did the engineer on said passenger per-time after he had reached a point within 1,000 train again look for said freight train at any feet of said crossing and before his said engine

"Q. 3. If you find that the engineer of the passenger train either did or did not look (at any time after he had reached a point within 1,000 feet of the crossing and before his engine went onto said crossing) for the approaching freight train, state what there was, if anything, to have prevented him from seeing said approaching freight train at any point within said distance? A. Nothing.

"Q. 4. What distance was the engine of the passenger train from the crossing at the time that Walter Geisy, the hackman, had finished turning the gate against the defendant's freight train? A. 20 to 30 feet:

"Q. 5. What distance was the engine of the defendant's freight train from the railroad crossing when Walter Geisy, the hackman, had finished turning the gate from its normal position against the plaintiff across the track of the defendant company? A. 800 to 1,000 feet.

"Q. 6. When the engine of the passenger train was within a distance of 100 feet from said crossing, at what rate of speed was it moving? A. 2 to 4 miles per hour.

"Q. 7. At the rate of speed that you find said passenger train to be moving, in your answer to question No. 6, in what distance could it have been stopped by applying the air brakes in emergency? A. 10 feet.

"Q. 8. At what rate of speed was plaintiff's passenger train moving at the time said gate was turned from its normal position against defendant's train across the track of the defendant? A. 4 miles per hour.

"Q. 9. At what rate of speed was defendant's freight train moving at the time said gate was turned from its normal position against it and across defendant's track? A. 15 to 18 miles per hour.

"Q. 10. Was Walter Geisy, the hackman, informed, before turning the gate against the defendant's freight train, that by so doing in all probability he would cause a wreck? A. No.

"Q. 11. Was the passenger train of the plaintiff brought to a full stop prior to going over said crossing on October 13, 1909? A. Yes; approximately so.

"Q. 12. After the gate had been turned from its normal position against the Missouri, Kansas & Texas train to a position against the approaching_freight train of the Missouri Pacific Railway Company, was there anything to have prevented those in charge of the plaintiff's engine from discovering said approaching train, and knowing that it either was not going to stop before crossing over said crossing, or could not stop before doing so? A. Yes; no warning.

"Q. 13. After the crossing came within the range of vision of the engineer on defendant's freight train, could he, with the appliances at hand, have brought his train to a stop before reaching the crossing if the gate at any time had been turned against said freight train when the engine was within 800 to 600 feet of the crossing? A. Yes.

"Q. 14. After the gate had been turned from its normal position to a position across the defendant's track, could the freight train have been stopped before reaching the crossing? A. Yes.

"Q. 15. At what rate of speed was the defendant's freight train moving when it reached said crossing? A. 15 to 18 miles."

Second Series.

"(1) Did the Missouri Pacific employés on train No. 192 have their train under full control at any time after the engineer released his brakes at a point 600 feet or more before he arrived at the crossing at Moody station? A. No.

(2) From the time the Missouri Pacific train came out of the cut 4,200 feet from the crossing until it arrived at the crossing, did the em

ployés on said train have a clear and unobstructed view, had they looked, of the Missouri, Kansas & Texas train, while it moved from a point near mile post 56 to the crossing? A. Yes. "(3) Did the engineer of the Missouri, Kansas & Texas train go upon the crossing in the full belief and assumption that the employés of the Missouri Pacific train would approach with their train under full control and would observe and obey the signal displayed by the gate to stop? A. Yes.

"(4) Could the Missouri Pacific employés on train No. 192 have stopped their train in time to have prevented the collision after they saw plaintiff's train entering upon the crossing if they had operated their train under full control at the time they saw the Missouri, Kansas & Texas train go upon the crossing? A. Yes.

"(5) Did plaintiff's employés make every possible effort to get the passenger train off the crossing after they saw that defendant's freight train was beyond control? A. Yes.

"(6) Did the Missouri, Kansas & Texas employés have their train under control at all times as they approached said crossing from a point about 175 feet northwest of the crossing? A. Yes.

"(7) Do you find the Missouri Pacific Railway Company, defendant herein, negligent in the following particulars, which negligence was the proximate cause of the collision:

"(a) Failure of the Missouri Pacific Railway Company to make proper and sufficient rules for the safe operation of its trains on approaching crossings? A. No.

"(b) Release of the brakes by the Missouri Pacific employés in charge of train No. 192, causing them to lose control of their train, when plaintiff's train was in full view approaching the crossing and could have been seen by Missouri Pacific employés had they looked? A. Yes.

"(c) Violation of the rules_promulgated by the Missouri Pacific Railway Company to govern their employés in operating trains on approaching crossings? A. Yes.

"(d) Approaching said crossing by Missouri Pacific train No. 192 at too high speed? A. Yes. "(e) Failure of the Missouri Pacific employés to use the reverse lever, sand, and brakes, when by so doing their train could have been stopped before arriving at the crossing? A. Yes.

"(f) Failure of the Missouri Pacific employés to give warning signals after their train was beyond their control? A. Yes.

"(g) Release of the brakes by the Missouri Pacific employés, knowing that when they released said brakes their train would be beyond control, and also knowing that the Missouri, Kansas & Texas passenger train was approaching and close to the crossing? A. Yes.'

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The engineer of a freight train started the train on an interstate journey while the fireman was in a lunchroom eating a lunch. The fireman came out of the lunchroom, and, seeing the train in motion, climbed on top of a car to go forward to his place in the engine cab. While going forward over the car tops he stumbled and fell between cars and was killed. He was an experienced and competent fireman, and knew, or should have perceived, the dangers which he would normally and necessarily encounter in passing over the train. Held, under the federal

Employers' Liability Act (Act Cong. April 22, | his superior, the fireman made a jovial re1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, mark. An ex-engineer, without a regular §§ 8657-8665]), he assumed the risk.

Appeal from District Court, Shawnee County.

Action by Sarah J. Briggs, as administratrix of Earl H. Briggs, deceased, against the Union Pacific Railroad Company. General verdict for plaintiff, and judgment for defendant on the findings of fact, and plaintiff appeals. Affirmed.

Waters & Waters, of Topeka, for appellant. R. W. Blair, T. M. Lillard, and A. M. Hambleton, all of Topeka, for appellee.

run since 1906, testified that it was the fireman's duty to be in the cab before the train started, but he further testified that the engineer must wait until the fireman comes, and has no business to start his engine until the fireman is in the cab. The findings of fact, which, as the case is presented, establish all the facts which are material, fol

low:

start the train on its journey without Briggs, the "No. 1. Did Kyle, the engineer of the train, fireman, being in the cab, and without said engineer knowing where Briggs was? Answer: Yes.

"No. 2. Did Briggs come out of the lunchBURCH, J. The action was one for dam-room, and, seeing his train moving to the front, ages resulting from death of a fireman of get upon the train and go to the front of the one of the defendant's engines. A general cab, and while so doing did he not stumble and verdict was returned for the plaintiff. With fall between the cars and was killed? Answer: Yes. the general verdict the jury returned special findings of fact. Judgment was entered for the defendant on the findings of fact, and the plaintiff appeals.

The deceased was fireman of an engine drawing an east-bound interstate train. Near midnight the train reached Topeka, and the engineer stopped the engine about 50 feet west of Kansas avenue, a street adjoining the defendant's depot on the west. The engineer and fireman left the engine and went to a lunchroom some 90 feet east of Kansas avenue, where each one ordered a lunch. When the engineer had finished his lunch he left the lunchroom, went to his engine, and put the train in motion. The train moved the distance to the lunchroom quite slowly, the speed being not more than 2 miles per hour when the lunchroom was passed. After that the speed was increased to about 7 miles per hour, but it was necessary to stop for the crossing of the Santa Fé Railroad, about 35 car lengths away, and the engine did stop from 20 to 25 car lengths from the lunchroom. The engineer whistled for the Santa Fé crossing, and again put the train in motion. He testified that he expected the fireman to catch the side of a car, ride to the Santa Fé crossing, and then come into the engine from the ground, or else come over the tops of the cars to the engine, according to a general practice followed for the 14 years he had been working on the defendant's road. About the time the engine was over the Santa Fé crossing the engineer received a stop signal, stopped the train, and was informed the fireman had been killed. The fireman had come out of the lunchroom, and, seeing the train in motion, had climbed upon it, and, while going over the tops of the cars toward the engine, had stumbled and fallen between cars. There was evidence that before going to the lunchroom the engineer told the fireman there was time for lunch, but they would need to hurry, and that before leaving the lunchroom the engineer said to the fireman, "Let's go." In

"No. 3. Was it the duty of Briggs as fireman to get upon the train and go over the car tops that he might regain his place in the cab? Answer: Yes.

"No. 4. Was the engineer negligent in starting his train without fireman being in the cab of the engine? Answer: Yes.

"No. 5. Did not the act of the engineer in cab make it necessary for Briggs, in the disstarting his train without Briggs being in the charge of his duty, to get upon the moving train and go over it to his place of duty? Answer: Yes.

pened if the engineer had not started the train "No. 6. Would the death of Briggs have hapuntil Briggs was in the cab? Answer: No.

"No. 1. Was Earl H. Briggs at the time of his death an experienced and competent fireman?

Answer: Yes.

"No. 2. Did Earl H. Briggs know, or in the use of ordinary care should have known, the risks and dangers which he would normally and necessarily encounter in passing over the train from which he stumbled and fell? Answer: Yes.

"No. 3. If Earl H. Briggs had not stumbled would he have fallen from the train? Answer: We don't know.

"No. 4. Was the defendant guilty of any neg ligence toward Earl H. Briggs? Answer: Yes.

"No. 5. If you answer the last question 'Yes,' then state fully of what such negligence consisted. Answer: Starting his train without his fire

man.

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The district court held that findings 1 and 2 of the second series established the pleaded defense of assumed risk.

The action was prosecuted under the federal Employers' Liability Act, and must be determined by the federal law, as interpreted by the federal court of last resort. The case upon which the plaintiff relies for recovery (Ches. & Ohio Ry. v. De Atley, 241 U. S. 310, 36 Sup. Ct. 564, 60 L. Ed. 1016) illustrates as well as any which might be chosen the views of the Supreme Court of the United States respecting the subject of assumed risk under the federal Employers' Liability Act. The head brakeman of a train was. sent forward to obtain some necessary information. The train followed him, and it was his duty to board it while it was in motion. It was the engineer's duty to operate the train at such speed the brakeman could board

had a right to assume that it was so operat- | risks, however, are not all that may be ased. While the train was moving at the rate of 12 miles per hour the brakeman attempted to board it, was unsuccessful, and was injured. The case was treated as one presenting the question of assumed risk.

sumed. Extraordinary risks created by negligence of the employer may be assumed, if the employé be aware of them, or if they are so obvious that any reasonable person would be aware of them and appreciate them.

"According to our decisions, the settled rule is, not that it is the duty of an employé to exercise care to discover extraordinary dangers that may arise from the negligence of the employer or of those for whose conduct the employer is responsible, but that the employé may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them." 241 U. S. 315, 36 Sup. Ct. 566, 60 L. Ed. 1016.

"Whether the risk was an extraordinary risk depended upon whether the speed of the train was greater than plaintiff reasonably might have anticipated; and this rested upon the same considerations that were determinative of the question of the engineer's negligence. If the jury should find, as in fact they did find, that the speed of the train was unduly great, so that the risk of boarding the engine was an extraordinary risk, the question whether plaintiff assumed it then depended upon whether he was aware that the speed was excessive and appre ciated the extraordinary danger, or, if not, then upon whether the undue speed and the consequent danger to him were so obvious that an ordinarily prudent person in his situation would have realized and appreciated them." 241 U.ics added): S. 317, 36 Sup. Ct. 566, 60 L. Ed. 1016.

The Court of Appeals of the state of Kentucky had held that the brakeman had not assumed the risk of injury, because his situation and opportunities for observation were such that he could not judge the speed of the train. Upon this subject the opinion

reads:

This rule was applied to the facts of the De Atley Case in the following manner (ital

"Plaintiff had the right to presume that the engineer would exercise reasonable care for his safety, and cannot be held to have assumed the risk attributable to the operation of the train at an unusually high and dangerous rate of speed, until made aware of the danger, unless the speed and the consequent danger were so obvious that an ordinarily careful person in his situation would have observed the one and appreciated the other." 241 U. S. 314, 36 Sup. Ct. 565, 60 L. Ed. 1016.

In the De Atley Case the negligence which created an extraordinary hazard was the negligence of the engineer in operating the train at too great a rate of speed. In this case the negligence which created the extraordinary hazard consisted in starting the train before the fireman was in his place. (Findings 4 and 5, second series.) There was no allegation, no proof, and no finding that the train was operated at too great a rate of speed, or that the speed of the train was negligently increased, or that the cars were jerked or bumped, or that any negligence whatever, of omission or commission, occurred after the train was started. The danger therefore was the normal danger attending the way which the fireman chose of reaching his place on the engine of the moving train. This danger was perfectly obvious to any one.

"The Court of Appeals reasoned that plaintiff's duties required him to be upon the passing train; that if he failed to board it he would be left behind; that he had a right to assume the engineer would run the train at a speed that would enable him to get on in safety; that he was facing the train, which was going directly toward him; that, as a matter of common knowledge, one standing in that position cannot form an accurate judgment of its speed until it comes quite near to him; and that his opportunity to observe the speed was limited to the brief space of time that elapsed between the passing of the front end of the engine and the cab, where it was his purpose to get on; and the court determined that, under such circumstances, it is well-nigh impossible to tell the difference between a rate of from 4 to 6 miles an hour, when an ordinarily prudent brakeman might get on with reasonable safety, and a rate of from 10 to 12 miles an hour, when it would be dangerous for him to do so,' and that 'all the circumstances tend to show that knowledge of the speed of the train came to him so suddenly and unexpectedly that he did not have an opportunity to realize and appreciate the danger of getting on.' Conceding the force of the reasoning, we are bound to say that, in our opinion, it cannot be said, as matter of law, to be so incontrovertible that reasonable minds might not differ about the conclusion that should be reached. We therefore hold that the question of assumption of risk was one proper for submission to the jury. * * * "lunchroom the engine and a number of cars 241 U. S. 317, 36 Sup. Ct. 566, 60 L. Ed. 1016. In the case under decision the jury have found specifically that the fireman did know, or that by ordinary prudence would have perceived, the dangers normally incident to passing over the train from which he fell.

In the De Atley Case it was held that the federal Employers' Liability Act abrogated the fellow-servant rule, but in other respects left unimpaired the common-law defense of assumed risk, except in cases covered by some statute enacted for the safety of employés. The risks assumed are the ordinary

The fireman had a right to assume that the engine would not be started until he was in the engine cab. It was started, however, without him. When he came out of the

had already gone by, and the train was going forward. He was immediately and manifestly confronted with all the difficulties and dangers to be encountered in reaching his place on the engine. It would be fatuous to say he was not aware of them, and it would be an impeachment of the mental capacity of a competent man to say he did not appreciate them.

The plaintiff says the time was nighttime. It was a night train, and no one was better aware of the darkness than the fireman. The plaintiff says there was smoke. The

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