Argument for Respondent.

Elliott, Railroads, sec. 1258; 33 Cyc. 800; Wharton, Negligence, sec. 389a.)

Neil assumed the risks, the danger from which brought about his injury. (O'Neil v. Pittsburg etc. Ry. Co., 130 Fed. 204; Goodes v. Boston & A. R. Co., 162 Mass. 287, 38 N. E. 500; Appel v. Buffalo, N. Y. & P. R. Co., 111 N. Y. 550, 19 N. E. 93; Olsen v. Andrews, 168 Mass. 261, 47 N. E. 90.)

There can be no recovery under the pretended doctrine of last clear chance, or on any other theory, unless there was wilfulness on the part of the employees of the company and the injury inflicted as a result of such wilful negligence. (Ullrich v. Cleveland, C. C. & S. L. R. Co., 151 Ind. 358, 51 N. E. 95.)

Where one on a railroad track is injured, and both he and the railroad company are negligent up to the time of the injury, the negligence of the railroad is not the proximate cause of the injury, and there can be no recovery. (Exum v. Atl. Coast Line R. Co., 154 N. C. 408, 70 S. E. 845, 33 L. R. A., N. S., 169; Norwood v. Raleigh etc. Ry Co., 111 N. C. 36, 16 S. E. 4.)

The verdict is excessive, and shows that it was rendered as a result of passion and prejudice and without deliberation. (Markey v. La. & M. R. R. Co., 185 Mo. 348, 84 S. W. 61; Waldhier etc. v. Hannibal etc. R. Co., 87 Mo. 37; Chicago & N. W. Ry. Co. v. Jackson, 55 Ill. 492, 8 Am. Rep. 661.)

The act of 1908 is not applicable to the facts in this case, for the reason that neither the plaintiff nor defendant was engaged in interstate commerce within the meaning of the act at the time of the happening of the accident. (Howard v. Illinois Central, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. ed. 297; Van Brimmer v. Texas & P. Ry. Co., 190 Fed. 394; St. Louis, I. M. & S. Ry. Co. v. Conley, 187 Fed. 949.),

Elder & Elder, for Respondent.

The jury was clearly justified in finding that one or both of the employees in charge of the engine in question did see the plaintiff upon the track in a place of danger in ample

Argument for Respondent.

time to have avoided the injury by the exercise of reasonable and ordinary care, and that they failed to do so or to make any attempt to do so until after they had run him down. (2 Bailey, Personal Injuries, 2d ed., sec. 504; Pilmer v. Boise Traction Co., Ltd., 14 Ida. 327, 125 Am. St. 161, 94 Pac. 432, 15 L. R. A., N. S., 254; Anderson v. Great Northern Ry. Co., 15 Ida. 513, 99 Pac. 91; Neary v. Northern Pacific Ry. Co., 37 Mont. 461, 97 Pac. 944, 19 L. R. A., N. S., 446; Schulz v. C. M. & St. P. R. Co., 57 Minn. 271, 59 N. W. 192; Chamberlain v. Missouri Pac. Ry. Co., 133 Mo. 587, 33 S. W. 437, 34 S. W. 842.)

We call attention to a few decisions which strongly tend to support this verdict as just and reasonable, though possibly generous. (Union Pac. Ry. Co. v. Conolly, 77 Neb. 254, 109 N. W. 368; Hall v. Chicago B. & Q. R. Co., 46 Minn. 439, 49 N. W. 239; Clay v. Chicago, M. & St. P. Ry. Co., 104 Minn. 1, 115 N. W. 949.)

A servant does not assume the risk arising from the negligence of the master, or from the negligence of a servant of the master for whose negligent conduct the master is responsible. The defense of assumption of risk in an action based upon the last clear chance doctrine of negligence can find no place for serious consideration, as the two doctrines cannot under any conceivable situation exist together. (Labatt, Master and Servant, secs. 270, 273; Dale v. Colfax Cons. Coal Co., 131 Iowa, 67, 107 N. W. 1096; Schulz v. Chicago, M. & St. P. Ry. Co., 57 Minn. 271, 59 N. W. 192; Sprague v. Wisconsin Cent. Ry. Co., 104 Minn. 58, 116 N. W. 104; Whitehead v. Wisconsin Cent. Ry. Co., 103 Minn. 13, 114 N. W. 254, 467; Texas & N. O. Ry. Co. v. Kelly, 34 Tex. Civ. App. 21, 80 S. W. 1073; Ehrman v. Brooklyn City Ry., 14 N. Y. Supp. 335; Morhard v. Richmond etc. Ry. Co., 111 App. Div. 353, 98 N. Y. Supp. 124; Illinois Cent. Ry. Co v. Souders, 79 Ill. App. 41; Huggard v. Glucose S. Ry. Co., 132 Iowa, 724, 109 N. W. 475; Smith v. Whittier, 95 Cal. 279, 30 Pac. 529; Retan v. Lake Shore & M. S. Ry. Co., 94 Mich. 146, 53 N. W. 1904; Solen v. Virginia & T. R. R., 13 Nev. 106.),

Opinion of the Court-Sullivan, J.

The plaintiff is shown to have been engaged in interstate. commerce at the time of the happening of the accident. (Doherty, Liability of Railroads to Interstate Employees, sec. 17.)

SULLIVAN, J.-This action was brought under an act of Congress relating to the liability of common carriers by railroad, to their employees in certain cases (see Supp. 1909, Fed. Stats. Ann., p. 584), to recover for damages sustained by the plaintiff for personal injuries alleged to have been received by him on account of the careless and negligent operation of a switch engine hauling four loaded cars of coal. in the switch-yards of the company at Spirit Lake, in the state of Idaho, on the morning of October 4, 1910, whereby plaintiff was so seriously injured as to necessitate the amputation of one leg just above the knee and the other just above the ankle.

The railroad company defended on the ground that the accident occurred wholly on account of the carelessness and negligence of the respondent. The action was tried by the court with a jury and resulted in a verdict and judgment in favor of respondent for $35,000. A motion for a new trial was made and overruled by the court. The appeal is taken both from the judgment and the order denying a new trial. Errors are assigned in regard to the admission and rejection of certain testimony, the insufficiency of the evidence to support the verdict and the giving and refusing to give certain instructions.

It appears from the record that the appellant was a freight conductor about forty years of age and had been engaged during nearly all of his adult life in railroading. He had been, prior to his injury, brakeman, switchman, yard-foreman, yardmaster and conductor, and since the 14th of July, 1896, had been continuously engaged in train service and in railroad yards. He commenced work for the appellant company September 22, 1909, as a freight brakeman, and in March, 1910, was promoted to freight conductor and continued in that capacity until the time of his injury.

Opinion of the Court-Sullivan, J.

At the time of the accident respondent was working as conductor on freight train No. 54, a train running between Spirit Lake, Idaho, and Metalline Falls, Washington. On the morning of the accident his train had been made up in the yards upon what is called the "passing track" by switch engine No. 22, that being the engine which afterward struck the respondent and caused the injury. At the time of the accident, freight train No. 54, of which respondent was conductor, was standing on the "passing track" and was being inspected by the train inspector, whose duty it was to make a complete examination of the train in order to see that everything was in perfect order before it was permitted to depart. The main line track runs in a southeasterly and northwesterly direction. Just north of it is the "passing track" upon which train No. 54 had been made up and was being inspected at the time of the accident, and north of that is the "scale track," so called because weighing scales were connected with it. Said "scale track" was used as one of the switch tracks in said yards. Train No. 54 was made up to leave in a westerly direction. Just prior to the injury, the respondent had gone to the engine on train No. 54 and there talked to his engineer for a short time and delivered him his clearance card and turned and started back toward the rear of his train, and in doing so went over to the "scale track," some ten or twelve feet from the "passing track," and walked easterly on said track. It appears that said switch engine No. 22 had passed down the "scale track" three or four minutes before the accident occurred, and was hitched to four cars of coal, for the purpose of switching the same up to the coal chute. The railroad track through the yard had a grade of one per cent, rising in an easterly direction, and said. engine No. 22 with the four cars of coal attached was going upgrade when it struck respondent.

Respondent testified that he was walking along the scale track so that he could better examine his train, and was stooping over looking at the brake-rods and brakes to see if they were all in good order. It appears that there was a space of about ten feet between the track on which said train

Idaho, Vol. 22-6

Opinion of the Court-Sullivan, J.

No. 54 was standing and the "scale track," and that respondent could have walked on that space had he desired to do so. But he testified that it did not require him to stoop quite so low to look under his train if he walked on the scale track as it would had he walked on the space between the two tracks. He also testified that when he finished talking with his engineer he stepped right over on the "scale track" and continued to walk down the "scale track" until he was struck by engine No. 22; that as he stepped upon the track he kind of glanced over his shoulder casually to see if anything was coming. He saw nothing at all and thereafter did not look behind him; that it was a calm, quiet morning and that an engine would have to use steam pulling four cars of coal up said grade and would necessarily make considerable noise. It also appears that a large automatic bell on said engine was ringing from the time the train started with said coal-cars up said grade until after respondent was struck, and that said bell could be heard for more than 1,000 feet; that from the point where the engine was hitched to said coal-cars to where the respondent was struck by the engine was a distance of five or six hundred feet, and there was a slight curve to the left in the track as it extended easterly across said yards. The fireman who sat on the left side of the engine saw the respondent walking on said track when the engine was about 500 feet from him, and testified that he supposed, of course, he would get off the track when the engine came near him. The engineer testified that he did not see him on the track at all. This was evidently because of the curve in the track. Evidently the attention of the fireman was attracted to his other duties and he paid no more attention to the conductor, the respondent, and he did not see him again until after he was struck by the engine.

It further appears that the train was running from eight to twelve miles an hour and it is not claimed by the respondent that that speed was excessive. There is very little conflict in the evidence as to the manner in which the accident occurred. Respondent testified that he was making an inspection which was required of him by the rules of the company.