The substance of appellant’s contention on this appeal is that the court erred in its ruling on the following points:
(1) That the plaintiff was not so employed in interstate commerce as to bring his right of action within the federal employers’ liability act and that his sole right was under the provisions of the workmen’s compensation act of Wisconsin.
(2) In submitting to the jury any question as to alleged negligence on the part of defendant as a proximate cause of the injury and in sustaining their verdict in so finding.
(3)„ In failing to hold as a matter of law that the plaintiff’s negligence was the sole cause of his injury. .
(4) In failing to hold as a matter of law that the injuries which the plaintiff received were by reason of a risk which he had assumed under his employment.
(5) For the court’s failure to submit a question in the special verdict as to the assumption of risk and in submitting questions (8) and (9) above specified and in failing to give appropriate instructions as to the assumption of risk and *435giving erroneous instructions on the question of defendant’s alleged negligence.
It must be considered as an accepted fact in this case that at the'time of the injury the plaintiff was, within the scope of his employment, proceeding to the handcar for the purpose of immediately going with the rest of the section crew to repair a portion of the tracks used by the Sault Railway in interstate as well as intrastate traffic.
The evidence from defendant’s own records as to the character of freight that was being transported practically daily over this transfer track, and further offer of such class of testimony being stopped at the suggestion of the court as quoted from the record, and the evident acquiescence by defendant’s counsel at that stage of the case with the ruling of the court, makes it clear that it was not disputed on the trial and cannot now be urged that the track proposed to be repaired was not clearly an instrumentality used in interstate commerce. It was as much so as was the bridge at which the injured plaintiff was employed in carrying spikes in the case of Pedersen v. D., L. & W. R. Co. 229 U. S. 145, 33 Sup. Ct. 648, or where the injured employee was removing snow between tracks used for both kinds of traffic (N. Y. Cent. R. Co. v. Parker, 249 U. S. 168, 39 Sup. Ct. 188), and the ruling in those cases we consider binding upon us in the instant case. The following cases also are in point: Louisville & N. R. Co. v. Parker, 242 U. S. 13, 37 Sup. Ct. 4; Southern R. Co. v. Puckett, 244 U. S. 571, 37 Sup. Ct. 703; Philadelphia, B. & W.. R. Co. v. Smith, 250 U. S. 101, 39 Sup. Ct. 396; Frazier v. Hines, 260 Fed. 874; Kansas City S. R. Co. v. Martin, 262 Fed. 241.
It is therefore held in this case that the plaintiff’s right to recover was under the federal act rather than the Wisconsin workmen’s compensation act, and the rulings of the court below in that regard were proper and are upheld.
In a case like this under the federal liability act, questions of either plaintiff’s or defendant’s negligence in connection *436with the injury are controlled by the principles declared by the federal courts rather than those of the state courts. Yazoo & M. V. R. Co. v. Mullins, 249 U. S. 531, 39 Sup. Ct. 368; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 371, 38 Sup. Ct. 535; N. Y. Cent. & H. R. R. Co. v. Tonsellito, 244 U. S. 360, 37 Sup. Ct. 620; Southern R. Co. v. Gray, 241 U. S. 333, 36 Sup. Ct. 558; Frasier v. Hines, 260 Fed. 874, 880. It may be said in passing, however, that no substantial difference appears in the rulings in this state upon the questions here involved and the rulings of the federal courts.
The case was correctly submitted to the jury under the evidence in this record as to the questions of the alleged negligence on the part of the crew in charge of the switching engine as embodied in the first and second questions of the special verdict.
The conflicting testimony in this case was such that it made it proper for the jury rather than the court to determine where the truth lay with reference to the following situations:
First, whether, when plaintiff started from the tool house towards the handcar in a diagonal direction ‘leading to and across defendant’s tracks, the switch engine was sixty feet or more north of the highway crossing, or whether it was just momentarily stopped on the crossing itself to permit of the very brief operation of uncoupling one or more cars from the set of cars then being switched; and whether it was in a state.of rest at the time the plaintiff so started.
Second, whether or not the bell on the locomotive was ringing as the switch engine was going south and over the space between the highway crossing and the point of injury.
Third, whether it was the custom in this particular switch yard that a warning by the ringing of the bell should be given as such switch engines were in motion under circumstances similar to those shown in this case, or whether it was a custom restricted to the giving of such warning when the *437engine was just starting to move, at highway intersections and when persons employees or others were discovered by the engine crew on the roadbed and at or near a point of danger.
It is a conceded fact under the plaintiff’s own testimony that he was familiar with switching operations, the constant moving of switch engines up and down those tracks, and the likelihood of such engines being so in operation while he was so crossing the tracks, and that he did not look towards the switching engine after leaving the tool house. It must also be treated as a conceded fact that had he looked at or just before stepping upon or within two or three feet of the west rail of the center track he could have seen the approaching engine and have avoided the accident.
It also appears that the engine was backing tó the south at the time of the accident and that the engineer was on the opposite side of the engine from that on which the plaintiff was approaching, and that the fireman was engaged in coaling the fire and had but a momentary glimpse of the plaintiff just as the latter was stepping into the zone of danger, and that he immediately gave notice to the engineer.
There is no escape from the conclusion on the testimony in this case, and a verdict to the contrary could not have been sustained, that there was negligence by the plaintiff proximately contributing to his injury.
The situation presented, however, was one in which the evidence can and does uphold a finding by the jury that there was a want of ordinary care in the management by the switching crew of the switching engine in question at the time of the injury which was a proximate cause of the accident. If the bell as a matter of fact did not ring, — and we surely cannot say under the testimony in this case as a matter of law that it did ring, — then a finding by the jury that such failure to ring was a want of ordinary care is a logical and legal conclusion.
There was no violation by defendant of the statutory re*438quirements as to the make-up of the engine crew; no negligence could be predicated on that ground. Momentary failure on the part of either or both the engineer and fireman to have a continuous, constant watch within a reasonable distance on both sides of the track ahead of the train also could not be considered of itself sufficient to warrant a finding of actionable negligence. Shaffer v. M., St. P. & S. S. M. R. Co. 156 Wis. 485, 495, 145 N. W. 1086.
The situation here, however, presents one where such switch engines 'are constantly moving up and down’ the tracks upon which or across which other employees are required by their employment to go upon or across. While this engine was proceeding a distance of about 120 feet from the center of the highway where the engine was standing, as testified to by defendant’s witnesses, at the last time it stopped prior to the accident, or considerably more if it was north of the track as testified to by the plaintiff and his witnesses, the plaintiff was in plain sight carrying the keg of spikes and the maul, and approaching at a diagonal which if continued was bound to bring him within the zone of danger, and with his head turned in a direction more away than towards the approaching train.
We think, therefore, that however negligent he may have been himself in thus approaching the track, it was a proper consideration for the jury as to whether or not the defendant’s train crew were also not negligent in failing to watch for and guard against injury to their fellow-servants, who in obeying lawful directions of their superior officers might reasonably be anticipated to occupy a position similar to that of plaintiff towards the moving train. Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 119, 33 Sup. Ct. 654; Southern R. Co. v. Smith, 205 Fed. 360; Delaware, L. & W. R. Co. v. Hughes, 240 Fed. 941; Lehigh Valley R. Co. v. Scanlon, 259 Fed. 137, 141.
Defendant insists that this case must be controlled in its favor by the ruling of the federal court in the case of *439Aerkfetz v. Humphries, 145 U. S. 418, 12 Sup. Ct. 835. There the plaintiff, a track repairer, familiar with the manner of work, was injured by the slow movement of an engine pushing two cars against him,-he standing with his back to the approaching cars at work without looking or watching for the engine. It was there held that there was no reasonable ground under the evidence to charge the duty on the engineer of expecting that an employee so stationed would pay no attention to his own safety. The court there expressed the opinion that the ringing of bells and sounding of whistles under such circumstances would have simply tended to confusion. That court held that there was no negligence by defendant, and that in any event the negligence of the plaintiff himself was such as to defeat his right of recovery. At the time of that decision negligence of a plaintiff proximately contributing to his injury defeated his right of recovery. Now under the federal statute the contributory negligence of a plaintiff so proximately contributing to his injury, there being also, negligence by the defendant also so contributing, has no other effect than to diminish proportionately the amount of plaintiff’s recovery. So long as the situation disclosed negligence on the part of both the plaintiff and defendant, each of which contributes in some degree as a proximate cause of the injury, it is a question only of the apportionment of the damages rather than a bar to the plaintiff’s right of recovery. Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 122, 33 Sup. Ct. 654; Grand Trunk W. R. Co. v. Lindsay, 233 U. S. 42, 49, 34 Sup. Ct. 581; Seaboard A. L. Ry. v. Tilghman, 237 U. S. 499, 501, 35 Sup. Ct. 653; Ill. Cent. R. Co. v. Skaggs, 240 U. S. 66, 70, 36 Sup. Ct. 249; N. Y. C. & St. L. R. Co. v. Niebel, 214 Fed. 952; Lehigh Valley R. Co. v. Scanlon, 259 Fed. 137; Ewig v. C., M. & St. P. R. Co. 167 Wis. 597, 606, 167 N. W. 442, 169 N. W. 429.
We cannot consider that the facts here as to defendant’s negligence are so parallel with those in the Aerkfetz Case, *440supra, as to make that decision controlling here on either question involved.
That the plaintiff himself was negligent is beyond question, but, negligence by defendant having been found, the plaintiff’s negligence cannot be deemed the sole proximate cause. Union Pac. R. Co. v. Hadley, 246 U. S. 330, 333, 38 Sup. Ct. 318.
This view of the situation disposes adversely to defendant of its main contentions on this appeal.
The failure to submit the question of assumption of risk was not error. The negligence of the defendant was that of a fellow-servant of plaintiff. As to such negligence there is, under the federal law, no assumption of risk by a co-. employee until at least actual knowledge of such particular negligence is brought to his attention or it is so obvious that the. ordinarily prudent person would observe it. Erie R. Co. v. Purucker, 244 U. S. 320, 324, 37 Sup. Ct. 629; Chesapeake & O. R. Co. v. De Atly, 241 U. S. 310, 315, 36 Sup. Ct. 564; Chesapeake & O. R. Co. v. Proffitt, 241 U. S. 462, 36 Sup. Ct. 620; Lehigh Valley R. Co. v. Scanlon, 259 Fed. 137, 142; Kansas City S. R. Co. v. Martin, 262 Fed. 241, 244; Reul v. Wis. N. W. R. Co. 166 Wis. 128, 134, 163 N. W. 189; Ewig v. C., M. & St. P. R. Co. 167 Wis. 597, 606, 167 N. W. 442, 169 N. W. 429.
Submission of questions (7) and (8) of the special verdict, quoted in the statement of facts, being of unnecessary elements under the issues requisite to determine the respective rights and liabilities óf the parties, if error at all, was not such as would warrant a reversal of the judgment.
By the Court. — Judgment affirmed.