dissenting:
(This case is before us upon a re-hearing, the original opinion having been rendered on February 26, 1925.)
In the petition for a re-hearing counsel for defendant in error stress the point that the opinion heretofore delivered in- this case was based on the fact that no negligence was proven against the plaintiff in error and that this ground of defense could not be considered by the court because it was not specifically *410set out in the demurrer to the evidence, as provided in Code of Virginia, section 6117. While it is true that the previous opinion in this case states “there is no evidence to justify the jury in finding,1 as a fact, that defendant company was guilty of any negligence that caused or contributed to the accident resulting in the death of Warren Graves Ellis,” this was merely one of the conclusions reached after a full discussion of the failure of the plaintiff to.show how the accident occurred.
The controlling thought in the opinion of the court was, that no sufficient evidence had been introduced to show why the deceased had placed himself in the perilous position that brought him in contact with the engine or tender, how he got there or why he should have come in collision with the slowly moving train. And, therefore, assuming the railroad' company’s employees to have been negligent in operating the -train, we were unable to say that such negligence either proximately or remotely contributed to the injury.
It would seem, therefore, that the failure of plaintiff in error to assign as one of its grounds of demurrer that it was guilty of no negligence, is of small moment in the disposition of this case.
It may be proper to observe, however, that this contention has been advanced for the first time in the petition for a re-hearing. Counsel for both sides in their briefs, and in the argument at- the bar of the court, dealt at length with the question of the railroad company’s negligence, indeed the brief of counsel for defendant in error, page 66, specifically states that the demurrer to the evidence contained as one of its grounds the absence of negligence on the part of the defendant company in the court below. We quote: “The grounds of demurrer was that Ellis had assumed *411the risk of the injury causing his death, and that the defendant was not shown to have been guilty of negligence which caused, in whole or m partrthe injury and death of decedent, and that Ellis was guilty of contributory negligence which was the sole cause of his injury and death.” (Italics supplied.)
Following this statement, more than ten pages of the brief of defendant in error are devoted to a discussion of the facts, and citation of authorities in an effort to show that the railroad company’s negligence caused the death of decedent.
The demurrer was doubtless argued in the lower court, and certainly in this court, on the theory that the railroad company’s negligence .was the outstanding issue on the demurrer to the evidence. Under such circumstances it may be seriously questioned if this objection can be raised for the first time upon a motion to re-hear.
We come now to consider the first ground relied upon by the plaintiff in error, namely:
“That the plaintiff’s intestate assumed the.risk of receiving the injury complained of.”
A brief restatement of the happenings in the yard just prior to the accident resulting in Ellis’ death may be helpful in the further consideration of this case, and especially as to the movement of engine and tender No. 2 that caused the injury to decedent.
This engine had brought in over the main line a train of cars and delivered them at the Byrd Street station. At this point the cars were detached, the train crew disbanded, and the engine and tender in charge of the engineer and fireman was taken back through the city and through the Boulton yard to the roundhouse. While thus passing through the yard about 11 P. M. the accident occurred. The engine *412was backing with tender in front at the rate of five or six miles per hour, on the main line, but the fact that it was on the main line was a mere incident, it was simply using the most convenient track to reach the roundhouse. This was clearly an intrayard movement, the run having been completed when the train of ears was delivered at the Byrd Street terminus, and was just such a situation as yard employees were called upon to anticipate.
This being a yard movement and the decedent being a regular employee in the yard familiar with all ordinary activities therein, places upon the men in charge of engine No. 2 no duty of prevision as respects such employees.
“A railroad company does not owe to its employees engaged on its yard, over which engines are constantly moving, the duty of sounding whistles, ringing bells or keeping a constant lookout to warn them of dangerof which they already have knowledge. Such employees are exposed to more than ordinary peril, and should be on the alert and vigilant to guard against injury from the movement of engines and ears always to be expected.” Norfolk and Western Railway Company v. Belcher's Admr., 107 Va. 340, 58 S. E. 579; Crowe v. Railroad Company, 23 N. Y. S. 1100, 70 Hun. 37.
In Jones v. Va. Ry. Co., 74 W. Va. 666, 83 S. E. 54, L. R. A. 1915C, 428, the engine was cut from a freight train which had just arrived over the main line, and was being taken to the roundhouse after being detached from the cars, via main line .track through the yard. While the engine and tender were thus backing through the yard, in charge of a yard crew, decedent collided with the tender and was killed. Decedent was not a yard employee, but a brakeman *413on the freight train that had just arrived and whose engine inflicted the injury.
A verdict for the plaintiff’s intestate was rendered and approved by the trial court, but upon a hearing in the supreme court the judgment was reversed, the court saying:
“A railroad yard, with numerous tracks connected by switches, is essentially a place of danger, even in the daytime. Therein trains and engines are in constant motion at all times during the day. Of the dangers incident to the use of the yards for railroad purposes, no one is better advised than the employees whose duty requires them to be in or about the yard, or to pass through or over it. They know the danger, and that their safety therein depends more upon their own watchful care and prudence than upon the blowing of a whistle, the sounding of a bell, or the presence of a light on or about any part of the car.”
It seems clear to us that no unusual movement of locomotives was in progress at the time Ellis received the injury resulting in his death, but on the contrary the operating of engines going to and from the roundhouse, the shifting of cars, the making up of trains and ceaseless activity in the yard of a great railroad system is to be expected and anticipated, and imposes upon those exposed to the ever present dangers thereof the duty of constant vigilance in looking out for their own safety.
They must be held to assume the ordinary risk of the service which they have undertaken to perform, and in the absence of any evidence even tending to show that the plaintiff in error was at the time of the accident moving its trains on the yard in a manner that should not have been anticipated by the decedent, there is no liability upon the plaintiff in error for his death.
*414Unless Pittard v. Southern Railway Company, 107 Va. 1, 57 S. E. 561, and Norfolk and Western Railway Company v. Belcher, 107 Va. 340, 58 S. E. 579, are to be disapproved and overruled by this court, they are decisive of and against the right of defendant in error to recover. See also Washington Southern Railway v. Grove, 113 Va. 411, 74 S. E. 148; Baltimore & Ohio Ry. v. Lee, 110 Va. 305, 66 S. E. 51; Crowe v. Railroad Company, 23 N. Y. S. 1100, 70 Hun. 37.
The cases of Southern Railway Company v. Tyree, 114 Va. 318, 76 S. E. 341, and Southern Railway Company v. Darnell’s Administrator, 114 Va. 312, 76 S. E. 291 are relied upon by the defendant in error as declaring the law in Virginia applicable to this case and as later expressions of the court than the Pittard and Belcher Cases, supra.
In the Tyree Case the injury was inflicted by amain line passenger train running through the yard, about-fifteen minutes late, at the rate of thirty miles an hour and without signals or lights of any kind. The court very properly said, with reference to the Pittard- and Belcher Cases: “These cases have no application to the facts disclosed by this record.”
The Darnell Case was not an injury to a yard employee at all, but to a locomotive engineer on a freight train operating between Manassas and Strausburg, who was injured while preparing to leave on his regular run by an engine, the crew of which knew the location of decedent’s train, and knew or should have known that he was at the point where the accident occurred,, yet moved the engine down upon him in the darkness-of the night, “without light, without sound of bell,, blast of whistle, or other signal, being on its way to a-station a mile or more distant.”
Both of these cases refer to the Pittard and Belcher *415opinions, but the facts are so different that Judge Harrison, in the Darnell Case, says with reference to the principles announced and conclusions reached in those cases: “We have no disposition to recede from the doctrines announced in those cases, and are under no necessity to do so in order to reach the manifest ends of justice in the case before us.”
We deem it unnecessary to prolong this opinion in a discussion of these cases, further than to say that in the Pittard Case the facts were very much more favorable to the contention of the plaintiff in the trial court than are the facts in the Ellis Case. There as here the engine was on the main line; there as here no one saw the accident nor does any one know why he was there or how he got there; there the train was running backwards twenty-five to thirty miles an hour, with no light on the tender, no bell ringing and no whistle sounding; here the train was moving at the rate •of five or six miles an hour, with the bell continuously .ringing and the approach of the engine observed by numbers of persons on the yard at the time; there the injured man’s duties had for the time being ceased, leaving nothing for him to do at the moment but care for his own safety; here the same condition existed; there a demurrer to the evidence was sustained by the trial judge, and his ruling affirmed by the appellate court; here the demurrer to the evidence was overruled by the trial court and judgment entered for the plaintiff.
Numerous cases in other jurisdictions might be cited, some opposing and some agreeing with the conclusions we have reached, but to what purpose? Decisions of the court of last resort in this State should need no bolstering from other jurisdictions in order to be accepted as precedents in the deliberations *416of this court, and a discussion of those cases not in agreement with the decisions- of this State can only tend to confusion of thought, and result in imposing-upon the bench and bar a dissertation from wbich can flow no practical results:
We are of opinion the trial court erred in overruling the demurrer to the evidence and entering judgment for the plaintiff in that court, and for reasons above stated, and as set out at length in the opinion rendered February 26, 1925 (by a unanimous court), think the judgment should be reversed.
Holt, J., concurs in dissent.