I concur in the judgment of reversal of the court of common pleas.
I am of opinion that the judgment should be reversed'- for. error in the charge of the trial-court in the general charge, wherein the court submitted the question of the violation of the Federal Statutes relating to defective equipment and defective coupler. I •find no evidence of any defective equipment' and no evidence of any defective coupler, directly contributing to decedent’s injury and death.
See: B. & O. Ry. Co. v Tittle, 4 Fed. (2d.) 818, on the question of proximate cause.
The case should be remanded for a new trial, as there was evidence upon which • reasonable minds might well differ on the question of the negligence of the defendant. The unusual act of backing the road engine off the main line into the siding and having it kick ■the cut of cars up the switch in order to clear the main fine, all without ■warning of any kind, and without a man-: On ’ the cut of cars kicked, and without warning the yard men engaged ;in preparing and maxing up the train -in the. yard by the yardmaster, who knew the decedent and others were ■working along the cars, and who gave the signal - to- the engineer, who had just'arrived with his road engine, to back into the switch and. kick the cut of cars back, is clearly- sufficient evidence of negligence to take the case to the jury.
In support of my conclusion, I cite the following, cases with. comments:—
In Louisville & N. R. Co. v Lankford, 209 Fed., 321, at 323, the Court say:
“The motion to. direct verdict was pronevly denied. There was- testimony •tending to, show negligence on .defendant’s part in using a. road engine for switching purposes.” .
In the case of Halt v C. C. C. & St. L. Rd., 279 S. W., 148, the first paragraph of the syllabus is:
“1. In action, under Federal Employers’ Liability Act (U. S. Comp. St., Sec. 8657-8665), where a ~rard switchman was killed by the ‘kicking’ of a caboose by a road engine, refusal of the defendant’s demurrer to evidence was proper, where thére was evidence that use of road engine, instead of yard engine, in moving caboose, was contrary .to yard custom.”
On page 150, the Court says:
. “The evidence further shows that Hált was not informed of the intended unusual movement on the part of the road crew of this caboose, and had no knowledge or warning prior to the movement thereof, that the caboose was to be moved by the road crew while deceased was engaged in making up ,the freight train. There was evidence on the part of the road crew that they were, ordered to kick tois caboose down this track No. .2 by a man named Joseph Lowery, who was on this particular occasion acting as temporary yardmaster; that this order t.o kick the caboose down was given them inside the yard office by the yardmaster. * * * There was evidence that Halt would not expect the caboose kicked over him from the rear.”
. The facts in the Halt case are very pertinent to the case‘under consideration. . .
. In Hines v Logan, 269 Fed., 105, 107, it is stated:
“There was evidence to show that a .custom existed to. give warning, either by ringing the bell' or blowing the whistle, of. the approach of the train of cars to the point on the track where Logan was killed. Several, witnesses testified that they.-.heard no warning, and no witness, testified that any was . givén *665* * All the witnesses agreed that another custom m vogue at, this particular place was that a .ookout should be on tne car nearest this space or opening for the purpose of warning employees in case of danger.”
In Frazier v Interstate Railroad Co., 264 Fed., 96, it is stated in the syllabus:
* * The question of the duty to have a lookout on some car, or to give decedent warning, held not one to be determined as a matter of law, but for the jury.”
The facts in the case of Harris v C. & E. I. Ry. Co., 158 N. E. 636, are very similar to the facts in the case under consideration. In the syllabus it is stated:
“The railroad company under Federal Employers’ Liability Act is under the humane duty to anticipate the presence of employees under or between, the cars, and to take such precaution for their safety as a proper lookout and timely warning of the approaching cars will afford, and this duty is owing whether the injured employee protects himself by means of a blue flag or not.”
And the 7th paragraph of the syllabus is:
“In suit for damages under Federal Employers’ Liability Act for death of railroad employee killed while coupling air hoses, when cut of cars was thrown against cars between which defendant was working, question whether switching crew were negligent in suddenly creating perilous situation by throwing cars against cars which decedent was coupling, without warning-to hifn, held for jury.”
In Southern Railway v Wilkens, 178 N. E., 454, it is stated, after discussing the blue flag rule:
“This rule appears to be to prohibit the running of cars upon a track where a blue flag is placed, but it does' not exempt the railroad company from exercising due care where there is no blue •flag, and it is a question for the jury to determine that fact. And the evidence .adduced above is sufficient to show negligence even. though the deceased did not put out a blue flag.”
In Evans v Railroad Co., 147 Ark., 28, the court said on page 35:
“Three blasts of the whistle would have given him that inlormation unmistakably. The engineer testified that railroad employees understood that signal like they did the English language, and we cannot say from the testimony that Evans did not have the right to expect that this signal would be given.
“If the exercise of ordinary care required that this signal be given, then the failure to give it was negligence; * # * 9f
In the third paragraph of the syllabus, it is stated:
“In such action it was held a question for the jury whether the failure to give a back-up signal was negligence, although the railroad company had no rule requiring such a signal.”
And in the fifth paragraph of the syllabus:
“ * * * the absence of such rule or custom is not conclusive on such subject.”
In Seaboard Air Line Ry. v Koennecke, 239 U. S. 352, at page 355, Mr. Justice Holmes says: :
“We see equally little ground for the contention that there was no evidence of negligence. It at least- might have been found that Koennecke was killed by a train that had jiist come in and was backing into the yard, that the movement was not a yard movement, that it was on the main track and that there was no iookout on the end of the train and no warning of its approach. I11 short the jury might nave found that the case was- not that of an injury done *666by a switching engine known to be engaged upon its ordinary business in a yard, like Aerkftz v Humphreys, 145 U. S., 418, but one where the rules of the company and reasonable care required a lookout to be kept. It seems to us that it would have been impossible to take the case, from the jury on the ground either that there was no negligence or thát the deceased assumed the risk.” (Emphasis ours).
In the Rule Book of the Railroad, Rule 30 provides:
“The engine bell must be rung when an engine is about to move.”
The evidence is that the road engine, which had been telephoned for by the yardmaster, and which was located at Ludlow, Kentucky, came across the bridge and arrived on the main line at the yard switching ladder, and, on signal from the yardmaster, moved into the switch and kicked the car without giving any signal by ringing a bell or .otherwise.
The case should be submitted to the jury on the common law negligence of the defendant, and any damages assessed, diminished by the contributory negligence of the plaintiff, if any, under §53, Title 45, of the Federal Statutes.
■MATTHEWS, J, concurs.