(dissenting). I cannot concur. Had the switch stand needlessly been placed so as to allow *830only 13 inches of clearance, it is conceivable to me that this act might be held to have been negligent toward those whose duty required them to be upon the sides of the moving ears (see dissenting opinion in Southern Pac. Co. v. Berkshire, 254 U. S. 415, 419, 41 S. Ct. 162, 65 L. Ed. 335); but the plaintiff was not so injured. To those whose duty it was to throw the switch, the situation was observable at a glance. Prom these the company had the right to expect self-protection. Chesapeake & O. R. Co. v. Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914; Pennsylvania R. Co. v. Lutton, 29 F.(2d) 689 (C. C. A. 6). Because the situation was so open and obvious, the mere location of the stand cannot be said to bave been negligent toward them, and, because of this and the plaintiff’s experience, the failure to warn him to beware the overhang is in the same category. Prom neither the location of the stand nor the failure to warn could the company have reasonably expected consequences of a generally injurious nature to experienced employees operating the switch. This is an elementary test of the existence of negligence, and plaintiff can claim only a breach of that duty which is owing to employees of the class in which he was aeting when injured. I find no breach of such a duty. Randall v. Baltimore & O. R. Co., 109 U. S. 478, 3 S. Ct. 322, 27 L. Ed. 1003.
But, apart from the existence of negligence, the risk of possible injury seems to me to have been clearly assumed. The danger lay in the overhang of the approaching locomotive. This was so obvious that it must have been known and appreciated. The faet that tbe plaintiff was hurried and momentarily forgetful of the ever-impending danger, and got a little too close to the rail when he might have remained in the clear, does not relieve the situation. New York, C. & St. L. R. Co. v. McDougall, 15 F.(2d) 283 (C. C. A. 6). . In railroading, eternal vigilance is the price of safety, and the risk of injury from those dangers which are obvious, ordinarily incident to and inherent in the very operation of tbe road is assumed by the employee.
I am unable to satisfactorily distinguish such eases as Southern Pac. Co. v. Berkshire, supra, and Chesapeake & O. R. Co. v. Leitch, 276 U. S. 429, 48 S. Ct. 336, 72 L. Ed. 638, or more especially Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513, Chesapeake & O. R. Co. v. Nixon, supra, and Randall v. Baltimore & O. R. Co., supra. In so far as Southern Ry. Co. v. Rogers, 196 F. 286 (C. C. A. 6) is in conflict with these views, the present ease must he held as controlled by the later decisions of the Supreme Court. The danger there, as here, was omnipresent during switching operations, and not only the decisions already cited, but those in other eases which were decided after the Rogers Case, classify these obvious operating dangers as among those the risk of injury from which is assumed. Jacobs v. Southern Ry. Co., 241 U. S. 229, 36 S. Ct. 588, 60 L. Ed. 970 (hoarding moving train); Boldt v. Pennsylvania R. Co., 245 U. S. 441, 38 S. Ct. 139, 62 L. Ed. 385 (going between ears); New York, C. & St. L. R. Co. v. McDougall, supra (brakeman struck by low overhead bridge). Compare also Hallstein v. Pennsylvania R. Co. (C. C. A. 6) 30 F.(2d) 594 (falling from coal tipple); Norfolk & W. Ry. Co. v. Kratzer (decided, C. C. A. 6, January 24, 1930) 37 F.(2d) 522 (employee struck by train in yards). I am of the opinion the District Court was right in directing a verdict.