It being conceded on all sides that this case is to be decided according to the decisions of the Supreme Court of the United States, in cases involving the liability of the defendant railroad company under the Federal Employers' Liability Act (45 U.S.C.A., §§ 51-59), I think it is clear that the leading opinion erroneously applies what is familiarly known as "the scintilla rule" in South Carolina, instead of the rule declared by the decisions referred to.
A reading of the opinion demonstrates, I think, that it cannot be reconciled with the authorities from the Supreme Tribunal, a few of which I quote:
In Chicago, M. St. P.R. Co. v. Coogan, 271 U.S. 472,46 S.Ct., 564, 565, 70 L.Ed., 1041, the Court said: "By the Federal Employers' Liability Act, Congress took possession of the field of employers' liability to employees in interstate transportation by rail, and all state laws upon that subject were superseded [citing cases]. The rights and obligations *Page 178 of the petitioner depend upon that act and applicable principles of common law as interpreted by the Federal Courts. The employer is liable for injury or death resulting in whole or in part from the negligence specified in the act and proof of such negligence is essential to recovery.The kind or amount of evidence required to establish it isnot subject to the control of the several states."
In Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34,49 S.Ct., 210, 73 L.Ed., 601, the Court said: "It is unquestioned that the case is controlled by the Federal Employers' Liability Act, under which it was prosecuted. Hence, if it appears from the record that under the applicable principles of law as interpreted by the Federal Courts, the evidencewas not sufficient in kind or amount to warrant a findingthat the negligence of the railroad company was the cause ofthe death, the judgment must be reversed."
In Gulf, M. N.R. Co. v. Wells, 275 U.S. 455,48 S. Ct., 151, 152, 72 L.Ed., 370: "Hence, if it appears from the record that under the applicable principles of law as interpreted by the Federal Courts, the evidence was not sufficientin kind or amount to warrant a finding that the negligence of the engineer was the cause of the injury, the judgment must be reversed."
The same language occurs in Atlantic Coast Line R. Co. v.Driggers, 279 U.S. 787, 49 S.Ct., 490, 73 L.Ed., 957.
See, also, Gunning v. Cooley (March 12, 1930), 281 U.S. 90,50 S.Ct., 231, 74 L.Ed., 720.
The exceptions in this case raise the single question that the defendant was not derelict in any duty that it owed to plaintiff's intestate, therefore was not guilty of any negligence, and that a nonsuit should have been granted at the close of plaintiff's testimony and a verdict directed for the defendant at the end of the whole case.
Mr. Bell had crossed the hostler track from west to east just prior to the accident; he saw, or could and should have seen, Engine No. 263 about to come into the track; he was *Page 179 familiar with the location and knew that engines coming into the yards in the morning off the run were to be placed on that track; he was an experienced employee in the yard and knew that engines moved about on the tracks, and therefore he assumed the risk of being struck by a moving engine and that it was his duty to look out for the engine and not the engine for him.
In the case of Delaware, L. W.R. Co. v. Koske, 279 U.S. 7,49 S.Ct., 202, 203, 73 L.Ed., 578, the facts were that Koske was getting off of an engine in the yards of the defendant railroad and put his foot into a ditch or hole that was left in the yard. The Court found that the only hole in the yard was an open drain that had been there some time. The Supreme Court of the United States said: "The Federal Employers' Liability Act permits recovery upon the basis of negligence only. The carrier is not liable to its employees because of any defect or insufficiency in plant or equipment that is not attributable to negligence. The burden was on plaintiff to adduce reasonable evidence to show a breach of duty owed by defendant to him in respect of the place where he was injured, and that in whole or in part his injuries resulted proximately therefrom. And, except as provided in Section 4 of the Act, the employee assumes the ordinary risks of his employment; and, when obvious or fully known and appreciated, he assumes the extraordinary risks and those due to negligence of his employer and fellow employees."
Again: "Defendant was not bound to maintain its yard in the best or safest condition; it had much freedom in the selection of methods to drain its yard and in the choice of facilities and places for the use of its employees. Courts will not prescribe standards in respect of such matters or leave engineering questions such as are involved in the construction and maintenance of railroad yards and the drainage systems therein to the uncertain and varying judgment of juries." *Page 180
The case of Aerkfetz v. Humphreys, 145 U.S. 418,12 S.Ct., 835, 836, 36 L.Ed., 758 is very much in point. In that case the facts were:
Plaintiff was a track repairer in the Delray yards, which had twelve tracks. A switch engine was working there making up trains. Plaintiff was working on a track at the west end of the yard when a switch engine, pushing two cars, moved slowly along the track on which he was working. Plaintiff stood with his back to the approaching cars and so remained until he was struck and injured by the first car.
Plaintiff was experienced in his work and knew that the switch engine was moving in the yard making up trains.
The Court said: "With that knowledge he placed himself with his face away from the direction from which cars were to be expected, and continues his work without ever turning to look. Abundance of time elapsed between the moment the cars entered upon the track upon which he was working and the moment they struck him. There could have been no thought or expectation on the part of the engineer, or of any other employee, that he, thus at work in a place of danger, would pay no attention to his own safety. Under such circumstances, what negligence can be attributed to the parties in control of the train or the management of the yard? They could not have moved the cars at any slower rate of speed. They were not bound to assume that any employee, familiar with the manner of doing business, would be wholly indifferent to the going and coming of the cars. There were no strangers whose presence was to be guarded against. The ringing of bells and the sounding of whistles on trains going and coming, and switch engines moving forward and backward, would have simply tended to confusion. The person in direct charge had a right to act on the belief that the various employees in the yard, familiar with the continuously recurring movement of the cars, would take reasonable precaution against their approach. The engine was moving slowly, so slowly that any ordinary attention on the part *Page 181 of the plaintiff to that which he knew was a part of the constant business of the yard would have made him aware of the approach of the cars, and enabled him to step one side as they moved along the track. It cannot be that under these circumstances the defendants were compelled to send some man in front of the cars for the mere sake of giving notice to employees who had, all the time, knowledge of what was to be expected."
The very recent case of Toledo, St. L. W.R. Co. v.Allen, 276 U.S. 165, 48 S.Ct., 215, 216, 72 L.Ed., 513, is decisive of this case.
Plaintiff was a car checker working in the railroad yard where there were a number of parallel tracks. The clearance between cars on adjoining tracks was two feet nine inches without allowing for grabirons that projected from the cars.
His duties required him to be in the yard and go from place to place checking cars.
The allegations of negligence were that there was not adequate space between the tracks, and that there was a negligent failure to warn him of the approach of cars. Plaintiff was struck and injured by two cars that were shunted from the end of a string of some 20 or 25 cars and allowed to roll unattended down the track by their own momentum. The accident happened in the nighttime. The yard was unlighted, there were no lights on the cars, and nobody warned Allen of their approach. It was not even a moonlight night. The Court says:
"The Act of Congress under which plaintiff seeks recovery took possession of the field of liability of carriers by railway for injuries sustained by their employees while engaged in interstate commerce, and superseded state laws upon that subject [citing cases]. This case is governed by that act and the principles of the common law as applied in the Courts of the United States. The plaintiff cannot recover in the absence of negligence on the part of the defendant." *Page 182
"And, except as specified in Section 4 of the Act (45 U.S.C.A., § 54), the employee assumes the ordinary risks of his employment, and, when obvious or fully known and appreciated by him, the extraordinary risks and those due to negligence of his employer and fellow employees."
The clearance between the cars on the adjoining tracks was two feet nine inches without considering the grabirons on some of the cars that projected four and one-half inches more.
The Court below authorized the jury to find the defendant guilty of negligence if the space between the tracks was so narrow that a person was in danger of being struck by cars moving on one of the tracks when the other was occupied. The Supreme Court said:
"While this space was sufficient to enable plaintiff to keep out of the way of the moving cars, the danger attending his work would have been lessened if the distance between the tracks had been greater. The work of checking cars in a yard at night when switching is being done is necessarily attended by much danger. But fault or negligence may not be inferred from the mere existence of danger or from the fact that plaintiff was struck and injured by the moving car. * * *
"The rule of law which holds the employer to ordinary care to provide his employees a reasonably safe place in which to work did not impose upon defendant an obligation to adopt or maintain any particular standard for the spacing or construction of its tracks and yards [citing cases]. Carriers, like other employers, have much freedom of choice in providing facilities and places for the use of their employees. Courts will not prescribe the space to be maintained between tracks in switching yards, nor leave such engineering questions to the uncertain and varying opinions of juries."
Held that this question should not have been submitted to the jury, as plaintiff had knowledge of the situation. *Page 183
The Court below held the defendant negligent in failing to ring the engine bell or blow the whistle and in shunting cars along the track unattended and unlighted.
The Supreme Court held that the ringing of bells and blowing of whistles in switching movements in the yards where there were constant shifting movements would have simply made confusion.
"And there is no support for the assumption that plaintiff was without knowledge of the switching practice followed in that yard or that movement in question created an unusual hazard. On the evidence it must be held that he knew how switching was done there; and, in the absence of proof that he was exposed to some unusual danger by reason of a departure from the practice generally followed, it cannot be held that defendant was in duty bound to give him warning. The members of the switching crew had a right to believe that he would keep out of the way of the shunted car."
The amended petition alleged that the switching crew saw, or by the use of ordinary care could have seen, the plaintiff between the tracks, and by the use of ordinary care could have held the cars that injured him stationary, or could have stopped them.
The Supreme Court said: "In the absence of knowledge on their part that he was in a place where he was liable to be struck and oblivious of that danger [italics ours], they were not required to vary the switching practice customarily followed in that yard or to warn him or to take other steps to protect him."
The section of the Federal Employers' Liability Act spoken of above is the section which provides that the employee does not assume any risk caused by a violation of any of the Acts of Congress providing for the safety of the employee, such as the Safety Appliance Act (45 U.S.C.A., § 1 et seq.), or the Boiler Inspection Act (45 U.S.C.A., § 22 et seq.). None of those acts are involved in this case, and we are not concerned with that section. *Page 184
The above case was a much stronger case for the plaintiff; the cars being shunted or kicked down a track with no attendant, unlighted on a dark starlight night, and yet the Court held that the defendant was under no duty to warn the man. In the instant case the accident happened in broad daylight, where the decedent had a clear and unobstructed view up and down the track; had just crossed it safely and should have seen the engine about to enter it and should have taken some care for his own safety.
Moreover, even if the testimony shows that Mr. Bell at the time of the accident was engaged in carrying a block of ice from the back of the tender of the engine on which he had been working to his automobile to take it home and was not fulfilling any duty or employment for the railroad company, and therefore the railroad owed him only the care not to hurt him recklessly or willfully at the time of the accident, he would have been just as any other person, a stranger to the railroad, would be in crossing the track; and therefore the principles of the common law as laid down by the Supreme Court of the United States in the Goodman case,275 U.S. 66, 48 S.Ct., 24, 25, 72 L.Ed., 167, 56 A.L.R., 645, are very applicable to this case, and apply even more strongly than in that case. That was a case where a driver of an automobile was struck at a grade crossing. He was on the road, a publicly-traveled place. In the case at the bar there was no regular crossing at the place where Mr. Bell was killed. In the Goodman case, the railroad was under more duty to look out for the traveler than it would be to look out for persons employed about its yards who were familiar with the operations and knew that engines and cars were constantly to be expected to move on the tracks. TheGoodman case was not a case of contributory negligence. The Supreme Court of the United States said: "The defense is that Goodman's own negligence caused his death."
I quote from B. O.R. Co. v. Goodman, 275 U.S. 66,48 S.Ct., 24, 25, 72 L.Ed., 167, 56 A.L.R., 645: "We *Page 185 do not go into further details as to Goodman's precise situation, beyond mentioning that it was daylight and that he was familiar with the crossing, for it appears to us plain that nothing is suggested by the evidence to relieve Goodman from responsibility for his own death. When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train. not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution, he does so at his own risk. If at the last moment Goodman found himself in an emergency it was his own fault that he did not reduce his speed earlier or come to a stop. It is true, as said in Flannelly v. Delaware H.Co., 225 U.S. 597, 603, 56 L.Ed., 1221, 1222, 44 L.R.A. (N.S.), 154, 32 S.Ct., 783, that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear, it should be laid down once for all by the Courts."
The Supreme Court of South Carolina recognized the same principle in the case of Cable Piano Company v. SouthernRailway, 94 S.C. 143, 77 S.E., 868: "As there was nothing to indicate that the driver of the team was not in possession of his faculties, the engineer had a right to assume that he would exercise them, and not drive upon the track in front of the approaching train. According to the undisputed evidence, the track is straight and the view is unobstructed for at least three-quarters of a mile in both directions from the crossing. It necessarily follows that, if the driver had looked before going upon the crossing, he would have seen the train in time to prevent the collision. The law imposes upon every capable person the duty of observing *Page 186 due care for his own safety when about to cross a railroad track, which necessarily involves the exercise of his senses." Approved: Osteen v. A.C.L., 119 S.C. 438,112 S.E., 352. Bain v. N.W.R.R., 120 S.C. 370,113 S.E., 277. Chisolm v. S.A.L., 121 S.C. 394, 114 S.E., 500. I do not understand that the Supreme Court of South Carolina has ever overruled this principle, except in the case of accidents occurring at a grade crossing where the testimony showed that the defendant railroad failed to give the statutory signals.
The Supreme Court of the United States defined negligence in the old case, Parrott v. Wells (Nitro-Glycerinecase), 15 Wall., 524, 536, 21 L.Ed., 206: "`Negligence' has been defined to be `the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.'"
Again: "Outside of these cases [cases of passengers of whom carriers are insurers], in which a positive obligation is cast upon the carrier to perform safely a special service, the presumption is that the party has exercised such care as men of ordinary prudence and caution would exercise under similar circumstances, and if he has not, the plaintiff must prove it."
Tested by the above definition and the decisions of the Supreme Court of the United States above quoted, the defendant company is in no wise responsible for the unfortunate death of Mr. Bell. As said in the Goodman case, his own negligence caused his death. He had only to look before he swung his heavy piece of ice from the back of the tender of Engine No. 1211, and threw himself into the path of Engine No. 263, which was backing no faster than a man ordinarily walks, and he never would have been hurt. If it is going to be supposed that the defendant was negligent because Mr. Bell got killed by its engine, how *Page 187 much more reasonable it is to suppose that Mr. Bell grasped the heavy piece of ice with his ice tongs while on the back of the tender of Engine No. 1211 and, without looking to see if any engine or car was coming on the adjoining track and in utter disregard of his own safety, swung it from that height and swung himself beneath the wheels of the approaching engine.
There may be some argument made that there was some evidence that there was a custom to have a brakeman precede the engine into the hostler track and that the failure to do so constituted negligence. There is nowhere in the testimony any evidence of a custom to send a brakeman or other person ahead of the engine into the hostler track to warn people of the approach of an engine. The only testimony of any such custom will be found in the testimony given by plaintiff's witnesses. It is shown by the same testimony that, if it were a custom, the object was not to warn people, but to protect the engine in case there should be anything on the track. Plaintiff's witness, Cardwell (one of the defendants), states:
"Q. What is the object of having a brakeman ride on the back of the engine? A. They have to make these couplings for us to get in the clear. If the track is open they don't require them to ride back there."
Plaintiff's witness, Walters, a discharged employee of the railroad company, testified on direct examination:
"Q. Is it or not the duty of a brakeman when he puts a main line engine into the hostler's track to ride the rear of that engine until that engine is parked on the hostler's track? A. It is; yes, sir.
"Q. For what purpose does he do that? A. To protect the engine from anything that might be on the rails; they are always equipped with a red lantern for brakemen to use at night, so the brakemen can have it to protect the engine while in motion." *Page 188
And again, where he was asked the position of the brakeman when he rode on the rear of the engine, and he said on the right hand side always, he went on:
"Q. Why is that? A. So he can see the engineer and the engineer see him pass signals."
"Q. Is he a pilot for the engine? A. Yes, sir."
He was asked later, if a brakeman was there, could he warn a man on the track, and when asked how would he warn him, he said: "He can holler if necessary or whistle."
The plaintiff's witness, W.C. Smith, a former conductor of the defendant railroad, who was discharged, testified that it was a custom to have a man at the back of the engine and went on as follows:
"Q. You say that custom applies to all places? A. Yes, sir, when an engine is backing up.
"Q. The man rides there to protect the engine? A. Yes, sir."
The defendant's witnesses all testified that there was no custom for a man to ride on the rear of the engine when only put into the hostler track unless there was another engine on that track to which it was necessary for the engine backing in to couple with. If there were no engine in there, or if it were not necessary to couple the engine backing in, then in that event the brakeman stopped at the switch and let the engine go in alone.
The case of Pheasant v. Director General (C.C.A.), 285 F., 342, 344, is very much in point. Pheasant, the locomotive engineer, had put his train on a siding and had gone to a tower to report. When returning to his train he and his fireman were walking together and looked both ways before walking on the track and saw nothing and so walked on the track towards his engine. The fireman heard a rumbling, called to Pheasant, and jumped, but Pheasant was too late and was hit. The negligence which the plaintiff charged to the Central Railroad Company of New Jersey was the failure of the conductor of the standing train to station a *Page 189 brakeman forward of the engine, who, had he been there, might have warned Pheasant of the other train coming on the track on which he was walking.
The Court said: "Turning to the charge of negligence against the Central, it is clear that if a brakeman is required by the rules of the company to advance forward of a train standing on a siding, it is for the purpose of giving warning of its presence and of protecting it and those upon it from collision. It is not for the purpose of protecting workmen when crossing and walking upon other tracks in and about their business. In this case a brakeman was not sent forward; nor did an injury of the kind which such precaution is intended to avoid happen. What a brakeman, if one had been sent forward, might have done to warn Pheasant when walking upon a track other than the one he was guarding, can only be surmised. If he had realized the situation he doubtless would have acted on an humane impulse. Conceivably he might have done nothing. The brakeman would have owed him no duty in the relation which then existed between them. Whatever the brakeman might have done, or might not have done, would have been so remote from the peculiar duty of his station that it would not have amounted to negligence in which to charge his principal."
In the case of Chicago, St. P., M. O.R. Co. v. Kroloff (C.C.A.), 217 F., 525, 528, the deceased, one Brotsky, was killed while crossing tracks in the yards of the defendant company early in the morning. Among the charges of negligence which the Court submitted to the jury was:
"Omission to have the foreman or one of his helpers on the north footboard to look out for and warn pedestrians, and to turn the angle cock and stop the engine. * * *
"The plaintiff alleged that it had long been the practice and custom of the defendant, in moving its switch engines in its yards and over the place where it struck Mr. Brotsky, to place a man or men on the approaching end of such engines to keep a lookout for and to warn him and other employees *Page 190 of the approach of such engines, and to warn those operating such engines of the proximity of persons on the tracks, and that the defendant failed to do so. No witness came to say that there had ever been any custom or practice to place a man or men on the approaching end of the switch engines at the place of the accident, or elsewhere in the yards, to keep a lookout for and warn employees of the approach of the engines, or to notify engineers of the proximity of persons in the yards. On the other hand, there was positive and uncontradicted testimony that there was no such custom. The evidence, in the most favorable view of it for the plaintiff, went no farther than to tend to show that the foreman and the two switchmen, when actively engaged in turning switches and handling cars during short movements, ordinarily rode on the footboard of the engine, from which it was most convenient for them to do their work, whether this was the footboard on the advancing or the retreating end of the engine, that they had often ridden on the footboard of the advancing end at the place of the accident, that either footboard was a proper place for them, but that in long movements — and the movements the engine was making at the time of the accident was a long movement — they usually rode on the retreating end of the engine. There was also evidence that there was an angle cock within reach of a man on the north footboard of the engine and tender, by turning which the air could be so manipulated as to stop the engine, and the plaintiff insisted that it was negligence not to have a man on that footboard to turn this angle cock.
"But the limit of the plaintiff's duty was to exercise ordinary care in moving its switch engine through its yards, and the burden was on the plaintiff to prove that it failed to use that degree of care. The best test of ordinary care is that care that ordinary prudent and careful railroad operators commonly use under similar circumstances, and in the absence of evidence of that care it is such care as ordinarily prudent and careful persons would use under like circumstances. *Page 191 Moreover, the legal presumption is, in the absence of countervailing evidence, or of indisputable negligence, that the degree of care the defendant exercised was such as a prudent and careful person would exercise under like circumstances. No witness came to say that prudent railroad companies ordinarily placed a man on the advancing ends of their switch engines to look out for and warn pedestrians passing through their yards under such circumstances as this case discloses, or that prudent operators would do so. There was no testimony that prudent operators would, or that operators ever had, in like circumstances, placed a man on the approaching end of a switch engine to turn the angle cock and stop the engine, or to notify the engineer of the proximity of persons on the track. And the failure to do these things certainly was not clear or indisputable negligence."
So in the present case there is no testimony of any custom of having any employee on the engine to warn employees or other pedestrians of the approach of the engine, and, on the other hand, the testimony is clear that, if a brakeman preceded the engine into the hostler track, it was for the purpose of protecting the engine and not for giving warnings.
The case of St. Louis S.F.R. Co. v. Conarty, 238 U.S. 243,35 S.Ct., 785, 787, L.Ed., 1290, is analagous, because in that case the claim was made that, because there was a violation of the Safety Appliance Act, the railroad was guilty of negligence, but the Supreme Court held that a violation of the Safety Appliance Act was not negligence, where a switch engine, on the step of which the deceased was riding, bumped into a freight car that had no coupler or drawbar at that end. It was not intended to couple to the car, and the hitting of it was accidental. The deceased was crushed between the engine and the car. Had the car been equipped with the coupler and drawbar, there would have been sufficient space between it and the engine so that the man *Page 192 would not have been mashed. The Court said: "We are of opinion that the deceased, who was not endeavoring to couple or uncouple the car or to handle it in any way, but was riding on the colliding engine, was not in a situation where the absence of the prescribed coupler * * * operated as a breach of a duty imposed for his benefit, and that the Supreme Court of the state erred in concluding that the Safety Appliance Act required it to hold otherwise."
The testimony here is that when a man walked ahead of the engine it was not to warn others of the approach of the engine, but to protect the engine, and therefore it was not a breach of duty imposed for Bell's benefit.
This Court has recognized the principle that, where a custom is for one purpose, a person injured cannot say that he relied on it for an entirely different purpose.
In the case of Owens v. Atlantic Coast Line Railroad, 141 S.C. 359, at page 364, 139 S.E., 779, 780, the Court said: "The appellant lays great stress upon the testimony as to the custom of blowing the whistle before taking out the train after inspection was completed. According to the plaintiff's own testimony, this custom was not for the purpose of warning the inspectors, who were required to protect themselves by displaying the blue signals, but for the purpose of notifying the train crew that the train was ready to pull out, and we do not think that the failure to blow the whistle on this occasion constituted negligence towards Owens. Even if the inspectors had come to rely upon the custom, the testimony does not suggest that the company had any knowledge or notice of such reliance."
The law would require Mr. Bell to protect himself by looking before going on a railroad track in a switching yard where he well knew engines and cars were constantly moving and could not rely upon the custom, if it was one, that a man should precede an engine into the hostler track for the purpose of piloting the engine or protecting it. *Page 193
The case of Reading Company v. Haldeman, decided by the Circuit Court of Appeals, Third Circuit, 20 F.2d, pages 53, 55, is very much like the present case. The deceased was killed in the yards of the railroad company by stepping on the track in front of a switch engine. The Court held:
"It will thus be seen that the work on which the decedent was engaged was one of peril; that the noise incident to esscaping steam in such yards, the uncertain movement of engines, the fact that no system of warnings has been, or indeed could be, devised by which danger could be avoided, have made this Court hold to the reasonable rule that, as said by it in Connelley v. Pennsylvania R. Co., 201 F., 54 47 L.R.A. (N.S.), 867 (cited by Supreme Court in Chesapeake O.R. Co. v. Nixon, 271 U.S. 218, 46 S.Ct., 495,70 L.Ed., 914), `from the nature of such employment, the duty of self-preservation has to rest on them, for no adequate protection, other than self-protection, can be afforded them. And such has been the reasonable holding of the law.' Seeing, then, that no negligence has been shown on the part of the railroad in failing to have a warning system, and in view of the evidence shown by the plaintiff's case that the deceased stepped on the coal dock track immediately in front of an engine coming on a track where, if he had looked, he could have seen its approach for 400 or 500 feet; we are constrained to hold the Court should have given binding instructions for the defendant.
"In so holding we have not overlooked the fact that the trial Judge admitted testimony of witnesses that good railroading required the railroad to place a man on the tender of a locomotive when backed in this engine yard."
For these reasons I think that the judgment should be reversed and the case remanded for judgment in favor of the defendants under Rule 27. *Page 194