(after stating the facts as above). The complaint as originally drawn was confessedly bad. Garrett v. Louisville, etc., R. Co., 235 U. S. 308, 35 S. Ct. 32, 59 L. Ed. 242. The amendment was scarcely enough, to satisfy the language of that ease. It did not “set out facts or circumstances adequate to apprise the defendant with reasonable particularity that such loss in fact was suffered.” We understand the Supreme Court to mean more than a hare allegation of damage. As the case must in any event be retried, we do not find it necessary to decide the question, beyond suggesting that caution would seem to demand a fuller statement, if the point is to be well avoided. We entertain no doubt of the propriety of allowing any further necessary amendment.
On the merits we can see no way in which a jury could conclude that the snowbank to the right of the track was the canse of the deceased’s death. It appears to. us quite as likely that he was overtaken unawares by the shunted car, and met his death either in his tracks or as he was escaping, but before he reached the bank. He may have slipped, or not have even tried to get out at all; he may have tried to hoard the ear from the bank. The position of his body is the only circumstance from which any inference can he made. From this it is assumed that he must have tried to make his escape and been caught by the hank. That is a possible explanation, hut it is no more probable than others. It is altogether impossible to say what might have been the movement, of Ms body after he was hit, and the position in which he was found certainly did not indicate that he had fallen while clambering the bank. Any conclusion appears to us the merest speculation, insufficient to support a verdict. The court told the jury that, unless the snowbank caused the accident, they must find for the defendant. On any such view of the ease, he should have dismissed the complaint. The defendant’s exception to the charge that the bank might have caused the accident was therefore good.
As the case must go back, we will state the only ground upon which a recovery could have lain under the evidence as it was. The District Judge will, of course; not take what we say as in any sense authoritative, in so far as another situation is developed another time. The plaintiff’s evidence was that it was customary in that yard to clean the space between the tracks. We will not say that it would have been negligent not to do so generally, hut, if it was the practice, though never followed elsewhere, by this or any other railroad, then the exception on that night was a circumstance which a jury might consider for the following reasons:
An employee who was acquainted with thb practice might perhaps assume, if, like the deceased, he had been away, that it had been followed. If he did, he would suppose his exit to he clear on either side, and at night he might not observe that it was not. A jury might find that this possibility imposed upon the defendant a duty either to apprise the deceased of the situation, or, if it did not, to shunt the cars with more than usual care. The deceased was not warned, and the brakeman on the car may not have been duly attentive. To run a car improperly watched might therefore have been found negligent, and the defendant liable, even though the snowbank had had nothing directly to do with the disaster.
The defendant invokes the rule of Aerkfetz v. Humphreys, 145 U. S. 418, 12 S. Ct. 835, 36 L. Ed. 758, and Chesapeake, etc., R. Co. v. Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914, that a railroad is not liable to- its employees for a defective lookout on moving-cars, or none at all. ■ That doctrine does not *590apply. We agree that, had the deceased been warned of the banks, he could not have complained, however unguarded was the shunted car, but the alternatives were to guard it, or to warn him; correlatives depending upon the departure from its accustomed practice. If the deceased once saw the unusual situartion, he would in law assume all risks, though he had entered the bank by but 5 feet. But the question whether he did see them was one of contributory negligence.
Again, it may be urged that, if the duty to guard the ear arose from the presence of the snowbanks, the plaintiff should not recover, unless the snowbanks were a factor in the result. A breach of the duty cannot be broader than the occasion for its existence. We do not agree. Had the deceased been warned, it is impossible to say that he would not have taken greater precautions. ■ Though in fact caught unawares, he might not have been caught at all — might, indeed, have chosen a wholly different route to his work. A greater general attention, caused by knowledge of his added peril, might well have protected him, though, if no warning had been necessary, he would have been killed just as he was. It is enough that the snowbanks created a situation which might demand either a warning or greater vigilance in the ear movement. A default in both might result in liability, though the occasion of the duty did not directly contribute to the result. " ■ • ■
We are in considerable doubt whether, had the ease been properly tried in the main, the judgment could have stood in any case. We are not censors of each others’ manners, oh or off the bench, and it is- a poor remedy which visits upon-the successful party the sufferings of his opponent. Moreover, in the case at bar the judge had some -provocation in the defendant’s nettling practice of filling the record with repeated formal objections. Still the upshot of the unfortunate tensity between judge and counsel may well have been a serious handicap to whatever chance the defendant had, slight enough at best. The show of irritation at the defendant’s objections, the repetition several times of a determination to see that the case should be tried on the merits, the expression of wonder that any one should object to letting a “mother” tell what her son paid her, the effort to avoid any exceptions to the charge* the unfortunate exchange between judge and counsel at.the very close — all these in conjunction were''scarcely .balanced by. the formal admonition to the-jury to ignore what had occurred. It is indeed unwise to disturb a verdict upon considerations of this kind,, unless the ease be clear. As we have said, we do not say that, taken alone, we should do so here, yet we must avow that it is a circumstance which has not been without weight in our conclusion that the ease must go back for another trial.
Judgment reversed, and new trial ordered.