(dissenting). I think the judgment of the District Court should be affirmed. The trial judge properly submitted the case to the jury under a charge that “one may be an obstruction upon the road as applicable to this case, if he is * * * so close to the track, that the person upon the train whose duty it is to exercise the duty of lookout might reasonably apprehend or anticipate that he was in danger of being struck; that is to say, might reasona-bly apprehend that the rush of the train would so addle him or confuse him, or destroy his mental faculties or his physical power, or both, to such an extent that he would lose control of himself and involuntarily stumble or. fall onto the track or against or into the train.” This instruction was directly within Southern Railroad Co. v. Sutton, 179 F. 471, 476, in which this court held that taking into account the attracting and disturbing force of a swiftly approaching train, a person “still so close to the track that, having due regard for the instinet of self-preservation and the involuntary movements of the body, there is still a reasonable probability or likelihood that he may fall or be thrown against *58the side of the engine or train as it passes him,” is within “striking distance” of the train.
. In the later case of Southern Railway v. Koger, 219 F. 702, we held that under the Tennessee Railroad Precautions Act in question, where the provisions regarding bell ringing, whistle blowing, etc., by locomotives while in cities or towns have not been observed, the liability is absolute, and proof need not be made that the accident was the proximate result of the railroad’s failure to observe the statutory precautions; also that contributory negligence of the person injured is not a bar to recovery, and may be considered only in mitigation of damages; also that it is not a requisite to recovery that the person injured should have been ahead of the train on the track before being struck. Certiorari was denied. 238 U. S. 633, 35 S. Ct. 938, 59 L. Ed. 1498. I find in the decisions of neither the Tennessee courts nor this court any warrant for a view that to make the statute applicable the person struck must have appeared “on the track” ahead of the engine. The holding in the Hawk Case (C. C. A.) 160 F. 348, 353, cited in Curtis v. Louisville & N. R. Co. (C. C. A.) 232 F. 109, 110, was merely that it must be proved that the person struck appeared on the road in front of the engine, as an obstruction thereto.
Under the settled decisions, the expression “upon the road” must be construed to mean either upon the track or so close to it as to be within striking distance. Manifestly, the fact that the engine, tender, and two mail coaches passed Matthews without striking him is not inconsistent with the conclusion, warranted otherwise by the testimony, and in view of what actually occurred, that when seen he was an obstruction on the track, within the definition already given.