STATEMENT OF FACTS.
This appeal is prosecuted to reverse a judgment for damages in the trial court entered on the verdict of a jury against the appellant for the negligent injury of appellee, one of its employees.
At the time of the injury appellee was a member of a "tamping gang" engaged in the maintenance of the roadbed of the through line running out of Oklahoma through Arkansas and into Tennessee. He was working as the engine operator of the machine and when the gang quit for dinner, the machine was left on the side of the track in a cut about 5 feet deep where there was an *Page 652 unobstructed view down the line from 1,200 to 1,500 feet. There was ample room between the track and the side of the cut for appellee to stand in the clear of passing trains. After the men had finished dinner, he told the foreman he would go back and see if he could not go over the machine and fix it so it would do better work, and the foreman said to go ahead and do it.
Appellee stated that it was his duty to see that the gas engines used in operating the tamping guns were kept in running order, the principal part of his work being to stop gas leaks and valves missing and light repairs of that kind. That the machines were located about a quarter of a mile east of Birta and because of an embankment of the roadbed they could not get the machines over three feet away from the track — just a good arm's reach from the track was the distance we could put the machines, and not any further on account of the roadbed being narrow at the place. The appellee had adjusted the machine, and it was running and making a good deal of noise at the time of the injury. He started the machine, was running it, testing it, and standing with his back to the west, the direction from which the train came, was cleaning up the machine with the air pump which also made a considerable racket; heard no signals given by the approaching train. He know that freight and passenger trains passed over the track at all times, and said: "Our instructions were to look out for the trains and keep out of the way of them — was told that the rules of the company required us to look out for the trains, and I had done that until this last time."
There was room at the point of the injury for appellee to stand out of the way, in the clear, of approaching trains. He did not remember his exact position when the train struck him, but knew he was too close to the track if he stood between the track and the machine he was fixing for a passing train to clear him. The last time he did look down the track he didn't see any train approaching. *Page 653
Other testimony was in conflict as to whether the usual signals were given by the approaching train, some of the witnesses testifying positively that the whistle was blown within two or three hundred yards of where appellee was working and where he could have easily seen it, had he looked that way.
Appellant asked for a directed verdict; objected to the modification of some its requested instructions and the giving of them as modified, and especially to the giving of instruction No. 6, telling the jury that it was the duty of the agents and servants of appellant to keep a constant lookout for appellee, and if they could by keeping such lookout have seen him and discovered his perilous position in time to have avoided striking him by the exercise of ordinary care, and failed to exercise such care to protect him from danger and injury, he was entitled to recover. The court also refused to give appellant's requested instruction No. 4, the converse of the last proposition stated, and it is especially urged that it erred in refusing to give its requested instruction No. 2 as follows:
"You are instructed that the plaintiff was employed in interstate commerce, and that under the rules of the defendant in effect at that time it was his duty to watch out for and keep out of the way of approaching trains, and if you find that he failed to do this and that this was the cause of his injury, your verdict will be for the defendant." Appellant insists for reversal that appellee at the time he was injured was assisting in maintaining the tracks of appellant, and therefore engaged in interstate commerce, and that the law governing the liability of appellant for injuries to him was necessarily the Federal Employers' Liability Act. *Page 654
It is undisputed that appellee was a member of the tamping gang, his special duty being to keep in repair and operate the engines used for tamping the ties in the maintenance of the track and roadbed. The machine was not operating satisfactorily before the workmen quit for dinner and appellee went down for the purpose of repairing and adjusting it and was so engaged when struck by the train. He said he had already made the proper adjustments for the machine and was at the time cleaning it off with the compressed aid from the hose attached. This work was in the line of his duty and he was necessarily, under the circumstances of this case, engaged in interstate commerce, and the law governing the liability of appellant to him for the injuries inflicted is the Federal Employers' Liability Act. Pedersen v. Delaware, Lackawanna Western R. R. Co., 229 U.S. 146, 33 S. Ct. 648; Seaboard Air Line Ry. v. Kenney, 240 U.S. 489,36 S. Ct. 458.
Appellee was an experienced workman; he knew the location of the machine to be repaired relative to the track and the embankment or side of the cut, that trains were frequently passing over the track, and that the rules required him to rely upon his own watchfulness and keep out of the way, proceeded with his work of making the repairs, leaving the engine running and the air pump working both making a great deal of noise, without looking toward the direction of the approaching train, according to his own statement, which he could have seen for almost a half mile, and stepped back on the track between his machine and the track where the passing train struck and injured him.
The testimony is in conflict as to whether the engineer and fireman on the approaching train were keeping a constant lookout as required by the statute and whether the signals were given notifying of the train's approach before striking him. Since appellee was employed in interstate commerce at the time, the liability of appellant company for his injury is controlled by the Federal *Page 655 Employers' Liability Act, and the court erred in not so directing the jury in accordance with appellant's requested instruction No. 2, and also in its instruction to the jury allowing the liability to be determined under the State Lookout Statute. C. O. Ry. Co. v. Nixon, 271 U.S. 218,46 S. Ct. 495.
According to the undisputed testimony, appellee's own statement of the occurrence of the injury, he neglected to take proper care for his own safety and assumed the risk incident upon the performance of the work without relying upon his own watchfulness to keep in the clear as the rules of the company required, and they were entitled to expect of their employees.
For the errors designated, the judgment must be reversed, and the cause, appearing to have been fully developed, will be dismissed. It is so ordered.