dissenting.
I cannot concur in the conclusion reached by the majority of my associates in this case. As a ground for a recovery the plaintiff alleged that it was the custom of *614the defendant company to station a man upon the foot-board of its engines while switching cars' in its yards in order to warn its trackmen to get out of the way of such engines and cars; and that it failed to observe that custom at the time the accident occurred. On this question the burden of proof was upon the plaintiff. As I read the record the plaintiff failed to carry this burden. The majority opinion contains a statement of some of the evidence introduced for that purpose, but not all of it. From this evidence it seems clear that the witness was an unlearned foreigner, unacquainted with the use and meaning of the English language, and failed to comprehend the questions propounded to him on his direct examination; for when matters were explained to him upon his cross-examination he answered squarely that when a member of the switching crew rode upon the foot-board of an engine he did so for the purpose of “lining up the switches.” This was the truth of the whole matter, and agrees with that knowledge which is common to all men who have used their ordinary poAvers of observation. It is well known to every one of ordinary intelligence that in switching cars in railroad yards a member of the switching crew takes his place upon the foot-board of the engine, and thus rides from one switch to another for the sole purpose of throwing such switches as may. be necessary when passing from one side track to another. Performing the work in that manner not only saves time, but the unnecessary expense of employing an extra man at every switch target in extensive railroad yards. Again, it is a matter of common knowledge, and has been frequently declared to be the law, that one who takes employment with a railroad company as a trackman assumes the risk arising from the passing of locomotives and trains upon the railroad tracks. In other words, he impliedly agrees that he will keep his own lookout, and get out of the way of passing trains. Notwithstanding this fact, in order to affirm what to my mind is an unjust and illegal judgment, the majority are driven to the *615absurd position of holding, as it seems to me, without competent evidence, that it was the custom of the defendant to keep a man upon the foot-board of its engines to Avarn trackmen in its employ to get out of the way of its passing trains. The absurdity of this matter is apparent Avhen Ave. remember that oftentimes a switch engine is not attached to the front end of a string of cars; that it frequently pushes a string of cars ahead of it in switching operations. If so, how could a person placed upon the foot-board of the engine warn a trackman to get out of the Avay of such a train?
In the case at bar it was shown that the engine bell was ringing at the time the accident in question occurred. It was also sIioavu that there was a great amount of noise being made by a passing freight train and so it may be said that if a man had been stationed upon the foot-board of the engine in question at the time this accident occurred he could not have made himself heard above the noise of the bell and the passing train so as to have given the deceased any warning at all of the approach of the engine.
Without extending this dissent to any greater length. I conclude by saying, that to my mind there is no competent evidence in this record to show the existence of the custom on which the plaintiff must rely in order to sustain the judgment of the trial court, and upon this question I appeal to the record.
It appears that at the. close of the testimony the defendant requested the court to direct a verdict in its favor. I am of opinion that the request should have been granted; that it was error to .submit the case to the jury, and the judgment of the district court should be reversed.