(concurring).
I concur in the reversal of the judgment, but not entirely with the reasons given therefor. The facts are clearly stated in the opinion of Judge Lewis the first time this appeal was before the Court, 62 F.(2d) 1026. Reference is made thereto without a restatement.
The sole question, as I see it is, should the fireman, Brower, have foreseen that an accident would result if he disobeyed the signal to stop given by the appellee, who was riding on the stirrup on the front end of the tender, as it was being slowly backed towards the crossing.
The judgment was reversed because the majority of the court felt the negligence of the driver of the automobile in colliding with the front end of the tender at the point where the appellee was riding, was a responsible intervening act of negligence that was the direct and proximate eause of the injury, and rendered the alleged disobedience of signals by the fireman a remote eause that relieved the railroad from liability.
The Federal Employers’ Liability Act makes the common carrier liable “for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” Section 1 (45 USCA § 51).
Most of the pertinent authorities are marshalled in the briefs. One of the many cited is Spokane & Inland E. R. Co. v. Campbell, 241 U. S. 497, 36 S. Ct. 683, 60 L. Ed. 1125. The plaintiff, the motorman in charge of an interstate electric train, was injured in a collision between the train he was operating and the one coming in the opposite direction. The jury found he had taken the main track with his train in violation of his orders, and that this was the proximate cause of the accident. The jury also found that but for the defective airbrakes, he could have stopped his train in time to avoid the collision.
The Supreme Court said that the act imposed a liability for injuries to the employee resulting in whole or in part from negligence of the agents of the carrier, and the violation of the act need not be the sole efficient cause; that where plaintiff’s contributory negligence, and the defendant’s violation of a provision of the Safety Appliance Act (45 US CA § 1 et seq.) are concurring proximate causes, ihe act requires the former to be disregarded. It would therefore seem that • the test to be applied in the instant ease is: Was the negligence of the fireman in whole or in part a direct eause of the accident?
The fireman and appellee both saw the automobile approaching, and each had opportunity to decide whether an accident was imminent. The fireman was not required to, and had no right to speculate, whether the automobile would continue at the same speed, or be accelerated and cross ahead of the train; or stop before reaching the track in question. In so doing he violated a rule of the company. Ralston’s means of observation were equal, if not better than his, and he, at least, judged that a collision was imminent, and gave the signal to stop.
He was in charge of the operation, and admittedly it was the fireman’s duty to obey the signal, if given. He saw the automobile approaching and realized the possibility, if not the probability, of a collision. The engine was moving so slowly that it could have been stopped at any time up to the instant, almost, the collision occurred. The engineer says in from three to five feet. Thus his negligence was continuous, with full knowledge that a collision was imminent. It was therefore the last intervening eause, the logical last.
Nor can it be said that Ralston, as a matter of law, had time after he became aware— if he ever did — that the fireman was going to disobey his signal, to save himself by jumping. The whole action took place while the train was moving less than 100 feet. He had the right to assume his signal would be obeyed. He had to decide almost instantly, and might well have concluded it was safer to remain where he was. There was always the possibility that the engine would stop, or that the automobile would stop, pass in front of the train, or hit the tender at a point oth*961er than where he was standing. He was not bound, at his peril, to make the best choice, but only to- act as a reasonable man would under all the circumstances as he saw them.
The Federal Employers’ Liability Act was intended to, and did, according to the Supreme Court (see excerpts in the majority opinion from Union Pacific R. Co. v. Hadley, 246 U. S. 330, 38 S. Ct. 318, 62 L. Ed. 751, and Spokane & Inland E. R. Co. v. Campbell, supra), remove from the field of judicial controversy most of the questions that have divided this Court on both hearings of this appeal. It would therefore seem that the only question for the jury was: Did Ralston give the proper signal in time for the engine to stop? If he did appellant is liable, because it was the duty of the fireman to see the signal, as well as to obey it.