On Petition for Rehearing.
We are of the opinion that the petition which has been filed in behalf of the defendant in error does not present sufficient grounds for a rehearing.
1. While the plaintiff’s.amended petition in the Circuit Court, stating his cause of action, is somewhat inartificially drawn, the allegation that the “defendant was negligent and careless in failing to furnish a safe and secure track to convey said plaintiff to and from his work for the purpose of running said train backward,” etc., when read in connection with the other averments of the amended petition, is, we think, sufficient to bring the question of the defendant’s negligence in leaving the track at the road crossing in the condition in which it was at the time the derailment occurred fairly within the scope of the pleadings. And it was evidently so treated in the court below by all parties and tried on that theory; no exception having been made to the introduction by the plaintiff of evidence as to the condition of the track.
2. After a careful re-examination of the evidence as to Winters’ knowledge of the condition of the track at the time of the accident, we think that the reference in our former opinion to “the absence of clear proof that Winters knew) or had reason to know, that this crossing had not been put in safe condition after he saw the last work done upon it,” is warranted by the evidence. While it does appear that the floating gang to which Winters belonged had worked on the switch track about two weeks, probably up to the day of the accident, it does not definitely or clearly appear when they did the work at the road crossing. While one witness states generally that before the accident they had worked at the road crossing, or close to it, for eight or ten days, owing to the ambiguity of his language, especially in the use of the words “before” and “there,” it does not clearly or satisfactorily -appear whether they had continued working at or near this point up to the day of the accident, or had ceased working at this point some days before. A like ambiguity exists in Winters’ own statement that the rails and plank in the crossing had been in that shape “all the time they worked down there”; it not being clear whether he refers to its condition prior to the time that he worked on it, or afterwards, especially in view of the fact that he fails in this answer to respond specifically to the first part of the question inquiring “how long they left it in this shape.” There is, furthermore, no specific evidence as to whether Winters was one of the last men to work at the crossing, or whether, after the time when he states that the. plank and .other material was thrown back in the crossing, he continued to work at the crossing or so near thereto as to make its condition clearly observable by .him. And in the vague condition of the testimony we cannot regard *53his statement that he never heard the foreman order the planks and material to be spiked down as necessarily involving the inference that all the work was then completed at the crossing, or that he knew, or had reason to know, that thereafter its condition waá left unchanged up to the time of the accident. We are therefore of the opinion that the testimony is not sufficient, when considered upon the defendant’s motion for peremptory instructions, to necessarily charge Winters with knowledge of the condition of the crossing at the time of the accident.
The contention of the defendant that, in passing upon the motion for peremptory instructions, no inference should be drawn that Winters may not have had knowledge as to the condition of the track at the time of the accident, is, we think, unsound, in that it asks the court, on defendant's own motion for peremptory instructions, to resolve all doubt as to the testimony against the plaintiff, to exclude an inference favorable to the plaintiff fairly consistent with the testimony, and to hold him necessarily chargeable with notice of the condition of the tract at the time of-the accident because it appears that he had knowledge of its condition án indefinite number of days before the accident, when, so far as is definitely shown, the work at the crossing may not have been completed, and in the absence of clear proof that he continued from that time to the day of the accident to work at the crossing or so near thereto that its condition was plainly apparent to him.
That, however, the court on the defendant’s motion for peremptory instructions should not draw conclusive inferences from the proof against the plaintiff in matters -which may be subject to reasonable explanation, or exclude from consideration an explanatory hypothesis favorable to the plaintiff and consistent with the evidence, is shown by the case of Kane v. Northern Central Ry., 128 U. S. 91, 95, 9 Sup. Ct. 16, 32 L. Ed. 339, in which the question was whether peremptory instructions had been properly given in favor of the defendant on tile ground of the contributory negligence of the plaintiff, a brakeman, who, after observing that a step was missing from one of the cars, had been injured in subsequently attempting to let himself down from it to reach another car. The testimony showed that at the moment the plaintiff let himself down from the top of the car he forgot that the step was missing; the plaintiff himself testifying that he could not remember how his mind was occupied at the time, and that his mind was only on going- to his post. While, however, he did not claim in Inis evidence that there was anything which prevented him from recognizing this car as the one upon which he knew that a step was missing, the court, in holding that peremptory instructions for the defendant had been erroneously given, said:
“In the case before ns, the jury may. not unreasonably, have inferred from the evidence that while the plaintiff was passing along the tops of the cars, for the purpose of reaching Ids post, he was so blinded or confused by the darkness, snow, and rain, or so affected by the severe cold, that he failed to observe, in time to protect himself, that the car from which he attempted to let himself down was the identical one which, during the previous part of the night, he had discovered to be without its full .complement of steps.”
*54We are of opinion, under the authority of this case, and under the general rule stated by this court in Mt. Adams, etc., Ry. Co. v. Lowery, 74 Fed. 463, 20 C. C. A. 596, that it is the duty of the court, when a motion is made to direct a verdict, to take that view of the evidence most favorable to the party against whom the motion is directed, that, giving to the plaintiff the benefit of every inference that can fairly be-drawn from the testimony, it is not necessarily to be inferred in favor of the defendant, from the meager and indefinite testimony in this case, that the plaintiff either knew, or had reason to know, that the condition of the track had remained unchanged from the time he is shown to have worked upon it until the time of the accident.
3. The defendant’s argument that if the plaintiff was guilty of negligence in reference to the condition of the track, which was a proximate cause of the injury, Winters must necessarily also have been guilty of negligence contributing as a proximate cause of the injury, furthermore fails to take into account, first, the fact that Winters’ contributory negligence is to be determined, not merely by such knowledge as-he may have had of the condition of the track, but also by the rate of speed at which the train was moving and all the other surrounding circumstances at the time of the accident, and, second, the different degree of care required of the master and servant in reference to discovering or knowing the dangerous condition of a place of work. In Railway Co. v. Jarvi (C. C. A., 8th Circuit) 53 Fed. 65, 3 C. C. A. 433, the court said, in reference to this last question:
“But tlie degrees of care in tlie use of a place in wliicli work is to be done, or in the use of other instrumentalities for its performance, required of the master and servant in a particular case, may be, and generally are, widely different. Each is required to exercise that degree of care in the performance of his duty which a reasonably prudent person would use under like circumstances ; but the circumstances in which the master is placed are generally so-widely different from those surrounding the servant, and the primary duty of using care to furnish a reasonably safe place for others is so much higher than the duty of the servant to use reasonable care to protect himself in a case where the primary duty of providing a safe place or safe machinery rests on the master, that a reasonably prudent person would ordinarily use a higher-degree of care to keep the place of work reasonably safe, if placed in the position of the master who furnished it than jf placed in that of the servant who-occupies it.”
This statement was quoted and approved by Judge Taft in delivering the opinion of this court in Norman v. Wabash R. Co., 62 Fed. 727, 729, 10 C. C. A. 617.
4. It is unnecessary to determine whether under the rule stated in Adams v. Shirk (C. C. A., 7th Circuit) 104 Fed. 54, 43 C. C. A. 407, and the practice of this court, as stated by Judge Lurton in Louisville & N. R. Co. v. Womack, 173 Fed. 752, 97 C. C. A. 559, decided November 2, 1909, the defendant, not having included the defense of assumption of risk as one of the grounds for the motion for peremptory instructions in the court below, can rely on this defense in this court for the purpose of sustaining the action of the trial judge in granting the peremptory instructions, since we are of opinion that, as above stated, the proof taken as a whole fails to show clearly and conclusively either that Winters either knew that the work on the track at the crossing had *55been completed and that it remained in the condition in which he had seen it up to the time of the accident, or that he worked thereafter in such proximity to this crossing that its condition was plainly observable to him, so as to bring the case, on the motion for peremptory instruction, within the doctrine of the assumption of risk by continuing in service without objection, as stated in Texas & P. Ry. Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188, and Choctaw Ry. Co. v. McDade, 191 U. S. 64, 68, 24 Sup. Ct. 24, 48 L. Ed. 96, even if the language of those cases is to be considered as relating to the opportunity of the employé to observe the condition of the defective appliances, rather than to the obvious character of the defect itself.
5. On the whole we are of the opinion that to support the defendant's contention as to the contributory negligence of the plaintiff, or his assumption of risk, would, in the present condition of the record, require the court to weigh the evidence, in contravention of the rule stated by this court in Mt. Adams, etc., Ry. Co. v. Lowery, supra, and that the evidence is not such as to clearly and satisfactorily establish either of these defenses as matter of law.
The petition for rehearing is accordingly denied.