Cases farther illus 127 Mo. 541. 545, 562-564, 27 L. R. A. 441, 28 S. W. 620, 30 S. W. 102, where a servant was held to have assumed the risk of a more dangerous ladder, which, during her employ. ment, had been substituted for one that she had formerly used; Roberts v. Missouri & K. Teleph. Co. 166 Mo. 370, 375, 378, 66 S. W. 155, in which the cross-arm of a telegraph pole which broke and precipitated the plaintiff to the ground had become rotten during his employment; Campbell v. Dearborn, 175 Mass. 183, 184, 55 N. E. 1042, where the plaintiff was held to have assumed the risk from the piling, during his employment, of a long board over a short one so that it caused his fall; Johnson v. Devoe Snuff Co. 62 N. J. L. 417, 41 Atl. 936, 938, in which the servant during his employment suffered injury because he was subjected to the increased risk of grinding green tobacco by means of rollers suitable only to the grinding of dry tobacco, and the court said that "the doctrine of the assumption of risks applies [as well] to those which first arise or become known to the servant during the service as to those in contemplation at the original hiring; and therefore a servant who, on discovering these dangers, makes no complaint or protest to the master, but continues in the service, assumes the risks, so that he cannot complain though injury follows;" Ford v. Mt. Tom Sulphite Pulp Co. 172 Mass. 544, 546, 48 L. R. A. 96, 52 N. E. 1065, in which the plaintiff was held to have assumed the risk of injury from a set screw which was placed in a revolving shaft during his employment; and Brossman v. Lehigh Valley R. Co. 113 Pa. 490, 57 Am. Rep. 479, 6 Atl. 226, in which the signals of low bridges were abandoned during the plaintiff's service, and he was held to have assumed the risk of the increased hazard. there is no consideration for the contract of | tled to no recovery.” assumption because the wages are not in- trating this rule are Steinhauser v. Spraul, creased with the hazards is not persuasive. The answer to it is: (1) The doctrine of assumption of risk is founded on the maxim, Volenti non fit injuria, as well as upon the express or implied contract arising from the employment, and continuance in the employment after new defects and dangers become obvious is conclusive evidence of a willing assumption of the risk which they entail; and (2) since, in ordinary employments, contracts for times certain do not exist, and either party is at liberty to terminate the service at any time, there is in fact a constantly recurring daily offer and daily acceptance of the risks of the known or obvious dangers and defects of the place and of the appliances, and of the wages tendered to induce an assumption of the work and the hazards. The reason which underlies the entire rule is that the servant who is constantly working in the place provided for him and daily using the tools and appliances furnished to him is more likely to know and to appreciate the dangers from defects in them than the master or his inspector, who, in the very nature of things, cannot see and know them so frequently and intimately as the employee who constantly uses them. This was the reason which induced the application of this rule to defects and dangers existing when servants enter upon their engagements, and when, in the nature of things, they are far less familiar with the defects and dangers incident to their avocations than they subsequently become after they have been long in the service. The reason of the rule applies with much greater force to dangers which arise and become known or are obvious to servants during their employment, because they have then become more familiar with their place and their appliances, and have earlier and better means of knowledge, and generally a better knowledge of changes in them, and of the effect and dangers of such changes, than they had of the dangers and defects incident to the original employment, and than their master or his inspectors can possibly obtain. Hence the rule declared by the Supreme Court in Washington & G. R. Co. v. McDade, 135 U. S. 554, 570, 34 L. ed. 235, 241, 10 Sup. Ct. Rep. 1044, that, if an injury is inflicted upon an employee on account of a defect and danger which arose during his employment, yet, "if the employee knew of the defect in the machinery from which the injury happened, and yet remained in the service and continued to use the machinery without giving any notice thereof to the employer, he must be deemed to have assumed the risk of all danger reasonably to A servant who knows, or who by the exbe apprehended from such use, and is enti-ercise of reasonable prudence and care The authorities and opinions to which reference has now been made have forced our minds irresistibly to the conclusion that the following rules of law have become irrevocably settled by the great weight of authority in this country and by the opinions of the Supreme Court, which, upon well-settled principles, must be permitted to control the opinion and action of this court: A servant by entering or continuing in the employment of a master without complaint assumes the risks and dangers of the employment which he knows and appreciates, and also those which an ordinarily prudent person of his capacity and intelligence would have known and appreciated in his situa tion. would have known, of the risks and dangers | tey v. Pickle Marble & Granite Co. 20 C. C. which arose during his service, but who con- A. 366, 368, 36 U. S. App. 682, 74 Fed. 155. tinues in the employment without complaint, assumes those risks and dangers to the same extent that he undertakes to assume those existing when he enters upon the employ ment. Among the risks and dangers thus assumed are those which arise from the failure of the master to completely discharge his duty to exercise ordinary care to furnish the servant with a reasonably safe place to work and reasonably safe appliances and tools to use. Assumption of risk and contributory negligence are separate and distinct defenses. The one is based on contract, the other on tort. The former is not conditioned or limited by the existence of the latter, and is alike available whether the risk assumed is great or small, and whether the danger from it is imminent and certain or remote and improbable. The court below fell into an error when it instructed the jury that, although the plaintiff continued in the employment of the defendant by the side of the visible unguarded gearing with full knowledge that the cogs which injured her were uncovered, still she could not be held to have assumed the risk of working by their side unless the danger from them was so imminent that persons of ordinary prudence would have declined to incur it under similar circumstances. Choctau, O. & G. R. Co. v. McDade, 191 U. S. 64, 48 L. ed. 96, 24 Sup. Ct. Rep. 24. There is another alleged error specified. A preliminary question for the judge always arises at the close of the evidence before a case can be submitted to the jury. That question is, not whether or not there is any evidence, but whether or not there is any substantial evidence upon which a jury can properly render a verdict in favor of the party who produces it. Cole v. German Sav. & L. Soc. 59 C. C. A. 593, 24 Fed. 113, 122; Brady v. Chicago & G. W. R. Co. 57 L. R. A. 712, 52 C. C. A. 48, 52, 53, 114 Fed. 100, 105; Chicago, St. P. M. & O. R. Co. v. Belli with, 28 C. C. A. 358, 362, 55 U. S. App. 113, 83 Fed. 437, 441; Railway Officials & E. Acci. Asso. v. Wilson, 40 C. C. A. 411, 413, 100 Fed. 368, 370; Marion County v. Clark, 94 U. S. 278, 284, 24 L. ed. 59, 62; North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 733, 31 L. ed. 287, 289, 8 Sup. Ct. Rep. 266; Delaware, L. & W. R. Co. v. Converse, 139 U. S. 469, 35 L. ed. 213, 11 Sup. Ct. Rep. 569; Laclede Fire Brick Mfg. Co. v. Hartford Steam Boiler Inspection & Ins. Co. 9 C. C. A. 1, 4, 19 U. S. App. 510, 60 Fed. 351; Gowen v. Harley, 6 C. C. A. 190, 12 U. S. App. 574, 56 Fed. 973; Mo The factory act of Missouri (2 Rev. Stat. 1899, § 6433) does not abolish the defense of assumption of risk in cases which fall under its provisions. In this respect it differs from the act of the Congress of the United States (act March 2, 1893, chap. 196 [27 Stat. at L. 531, U. S. Comp. Stat. 1901, p. 3174]), which requires cars engaged in interstate commerce to be equipped with automatic couplers. Congress in that act expressly provided that in case the railroad companies failed to comply with its terms the employees should not be deemed to have assumed the risk thereby occasioned. Act March 2, 1893, chap. 196, § 8, p. 532 (27 Stat. at L. 532, U. S. Comp. Stat. 1901, p. 3176). The legislature of Missouri had power to apply a similar provision to cases in which employers failed to keep their machinery safely and securely guarded, but they did not do so. The negligence of the master to safely and securely guard his machinery in accordance with the provisions of the law of Missouri is of the same nature as his negligence in providing a reasonably safe floor or ax or other tool or appliance, and there is no reason why an action for a resulting injury should not be subject to the defense of assumption of risk in the one case to the same extent as in the other. And so it is under the law here under consideration. The factory act of Missouri (2 Rev. Stat. 1899, § 6433) does not abolish the defense of assumption of risk in cases in which the absence of the guards and the risks and dangers from the gearing and machinery are obvious or well known to the employee and he enters or continues in the service without complaint. O'Maley v. South Boston Gaslight Co. 158 Mass. 135, 138, 139, 47 L. R. A. 161, 32 N. E. 1119; Lore v. American Mfg. Co. 160 Mo. 608, 624, 61 S. W. 678; White v. Wittemann Lithographic Co. 131 N. Y. 631, 635, 30 N. E. 236; E. S. Higgins Carpet Co. v. O'Keefe, 25 C. C. A. 220, 222, 51 U. S. App. 74, 80, 79 Fed. 900, 902; Knisley v. Pratt, 148 N. Y. 372, 32 L. R. A. 367, 327, 38 N. Y. Supp. 566. 42 N. E. 986; Graves v. Brewer, 4 App. Div. The question here, therefore, is: Was there any substantial evidence at the close of the trial below which would have warranted a finding and verdict by the jury that the plaintiff did not voluntarily assume the risk of the uncovered gearing? Of course, the question whether or not a servant has willingly assumed a risk of the service is, like all questions of fact, for the jury when the evidence is conflicting or when the deductions from it are doubtful; and, as this is usually the case in the trial of this issue, as in the trial of all other issues of fact, the general rule becomes that this question is they so confuse the two separate defenses of ordinarily for the jury. There are many cases in which the danger from the condition of the place or of the appliance is uncertain or recondite, as in Ford v. Fitchburg R. Co. 110 Mass. 240-243, 261, 14 Am. Rep. 598, where an explosion which could not have been reasonably anticipated resulted from a defect in a boiler which was known to the servant, and from such cases the rule arises that mere knowledge of the defect in the place or in the appliances does not necessarily establish the fact as a matter of law that the employee assumed the risk which the defect entailed. There are other cases, like Coombs v. New Bedford Cordage Co. 102 Mass. 572, 3 Am. Rep. 506, in which a boy less than fourteen years old and unacquainted with machinery was, on the second day of his employment, set to work in a noisy factory to break off ribbon, where he was required to draw his hands apart so that one of them would frequently come near an uncovered gearing,—to | which the rule applies that a servant does not assume the risk of a known defect unless he appreciates, or unless a person of his intelligence and capacity by the exercise of ordinary prudence would have appreciated, the danger arising from it. The facts of the following cases bring them within these rules: Cook v. St. Paul, M. & M. R. Co. 34 Minn. 45, 24 N. W. 311; Daley v. American Printing Co. 150 Mass. 77, 22 N. E. 439; Goodlett v. Louisville & N. R. Co. 122 U. S. 391, 411, 30 L. ed. 1230, 1234, 7 Sup. Ct. Rep. 1254; Patterson v. Pittsburg & C. R. Co. 76 Pa. 389, 394, 18 Am. Rep. 412; Fitzgerald v. Connecticut River Paper Co. 155 Mass. 155, 157, 31 Am. St. Rep. 537, 29 N. E. 464; Mahoney v. Dore, 155 Mass. 513, 30 N. E. 366; Lawless v. Connecticut River R. Co. 136 Mass. 1; Ferren v. Old Colony R. Co. 143 Mass. 197, 9 N. E. 608; Myers v. Hudson Iron Co. 150 Mass. 125, 15 Am. St. Rep. 176, 22 N. E. 631. The cases of Northern P. R. Co. v. Mares, 123 U. S. 717, 720, 31 L. ed. 300, 301, 8 Sup. Ct. Rep. 321; Hough v. Texas & P. R. Co. 100 U. S. 224, 225, 25 L. ed. 617, 618; Kane v. Northern C. R. Co. 128 U. S. 91, 94, 32 L. ed. 339, 341, 9 Sup. Ct. Rep. 16; Snow v. Housatonic R. Co. 8 Allen, 441, 447, 448, 85 Am. Dec. 720; Francis v. Kansas City, St. J. & C. B. R. Co. 127 Mo. 658, 28 S. W. 842, 30 S. W. 129; Thorpe v. Missouri P. R. Co. 89 Mo. 650, 58 Am. Rep. 120, 2 S. W. 3; and O'Mellia v. Kansas City, St. J. & C. B. R. Co. 115 Mo. 205, 21 S. W. 503,-to which our attention has been called, are not in point upon the question now under consideration, because the discussions and decisions in these cases are either devoted to the defense of contributory negligence exciusively, or assumption of risk and contributory negligence as to be without persuasive force upon the issue now in hand. Thus, in Kane v. Northern C. R. Co. 128 U. S. 91, 94, 32 L. ed. 339, 341, 9 Sup. Ct. Rep. 16, there was no defense of assumption of risk in the case. That defense had been stricken down by a complaint of the defect which the brakeman had make to his conductor. His freight train had started at midnight. When it had gone 20 miles he discovered that a step was missing from one of the cars, and called the conductor's attention to it. The latter promised to drop the car at the coalyard or junction beyond them if upon examining his manifests he found it did not contain perishable freight. About 4 or 5 o'clock in the morning, and before they had reached the coalyard, the brakeman started to go along the train to his post, and in letting hiraself down from the car whose step was missing he forgot that fact and fell. The Supreme Court well said, “An employee upon a railroad train, likely to meet other trains, owes it to the public as well as to his employer not to abandon his post unnecessarily," and that the danger was not so imminent as to subject him to the charge of recklessness in remaining at his post after he had complained and received the conductor's promise. The plaintiff in the case at bar was not engaged in a quasi public employment, and owed the public no duty which required her to continue to operate the forming machine for six weeks after she discovered the defect of which she now complains. She gave no notice and made no complaint of it to her employer. What a striking difference the facts of the two cases present, and how well they illustrate the rule that general expressions in opinions should be read in the light of the facts presented and the issues under consideration, and should not be indiscriminately applied to dissimilar facts and issues that were not presented! It is suggested that the plaintiff was only twenty years of age, but she had been employed in the factories for many months, and the danger from mashing cogs that had been visible to her for six weeks was as apparent and appreciable to a woman of her age and experience as to a person of greater age or more extended experience. She could not fail to know as well at twenty as at forty years of age that fire would burn, or mashing cogs would crush her fingers. A person twenty years of age assumes the risks and dangers that he actually knows and appreciates, and those that are so apparent that one of his age and capacity would, in the exercise of ordinary care, know and appreciate them to the same extent as one of more mature years. Bohn Mfg. Co. v. Erickson, 5 C. C. A. 341, 344, | which the Supreme Court held that a brake- man could not he heard to say that he did not appreciate the dangers of a sharp curve in the railroad track, from which he suffered injury; Kohn v. McNulta, 147 U. S. 238, 241, 37 L. ed. 150, 152, 13 Sup. Ct. Rep. 298, in which the same court held that double deadwoods on cars were obvious defects, and the danger from them was apparent; Southern P. Co. v. Seley, 152 U. S. 145, 154, 155, 38 L. ed. 391, 395, 396, 14 Sup. Ct. Rep. 530, wherein that court made the same holding, and entered the same judgment, in an action for injuries caused by an unblocked frog; King v. Morgan, 48 C. C. A. 507, 509, 109 Fed. 446, 448, a case of an injury from the use of an iron tamping bar instead of a wooden one; Cudahy Packing Co. v. Marcan, 54 L. R. A. 258, 45 C. C. A. 515, 517, 106 Fed. 645, 647, where a block on which a boy seventeen years of age was standing slipped upon the greasy floor and caused him to throw his hand into a hasher; O'Maley v. South Bos Now, while it is true, as the decisions to which we have adverted declare, that mere knowledge of a defect by a servant who continues in the employment does not necessarily establish the fact as a matter of law that he has assumed the risk it entails, and while it is also true that he does not assume such a risk unless an ordinarily prudent person of his capacity in his situation would have appreciated the danger from it, it is equally true that a servant who enters or continues in the employment of his master in the presence of visible or obvious defects and plain or apparent dangers from them, which he knows or appreciates, or which an employee of his intelligence and capacity would by the exercise of ordi-ton Gaslight Co. 158 Mass. 135, 47 L. R. A. nary care and prudence know and appreciate, -assumes the risk of these dangers, and he cannot be heard to say that he did not appreciate them, and, when the uncontradicted evidence establishes these facts, no case arises in his favor, no question remains for the jury, and it is the duty of the court to peremptorily instruct them to return a verdict for the master. This is a familiar and well-established rule of law. It is sustained and illustrated by the following cases, in which courts have held that it was the duty of the trial court to direct a verdict for the employer: E. S. Higgins Curpet Co. v. O'Keefe, 25 C. C. A. 220, 222, 51 U. S. App. 74, 80, 79 Fed. 900, 902, in which a boy fifteen years of age, who had been at work in a room with a picking machine, was assigned to feed it, and permitted his hand to slip into the exposed cogs, which the factory act of New York required the master to keep covered; Buckley v. Gutta Percha & Rubber Mfg. Co. 113 N. Y. 540, 21 N. E. 717, wherein a boy twelve years old slipped and threw his fingers into exposed cogs; Atlas Engine Works v. Randall, 100 Ind. 293, 50 Am. Rep. 798, in which a boy nineteen years of age permitted his hands to engage with revolving cogs; Berger v. St. Paul, M. & M. R. Co. 39 Minn. 78, 38 N. W. 814, wherein a boy in feeding rollers in a boilermaking shop permitted his hand to slip between them; Kleinest v. Kunhardt, 160 Mass. 230, 35 N. E. 458, wherein the servant fell upon a slippery floor and threw his hand against a pulley, which injured it; Tuttle v. Detroit, G. H. & M. R. Co. 122 U. S. 189, 195, 30 I. ed. 1114, 1117, 7 Sup. Ct. Rep. 1166, in 161, 32 N. E. 1119, wherein a servant wheeling coal fell from an unprotected way which the factory act of Massachusetts required the master to keep guarded; Glover v. Kansas City Bolt & Nut Co. 153 Mo. 327, 55 S. W. 88, in which a boy engaged in pulling iron from a pile fell and placed his fingers between closing shears; Mundle v. Hill Mfg. Co. 86 Me. 400, 404, 30 Atl. 16, in which a servant received a sliver in her foot from the floor on which she was working; American Dredging Co. v. Walls, 55 U. S. App. 460, 28 C. C. A. 441, 442, 84 Fed. 428, 429, wherein the servant slipped, fell, and his hand was caught in the machinery because there were no cleats on a slippery inclined table upon which he was required to go to oil the machinery; Hoard v. Blackstone Mfg. Co. 177 Mass. 69, 71, 58 N. E. 180, and Whalen v. Whitcomb, 178 Mass. 33, 34, 59 N. E. 666, wherein servants were injured by depressions in the floors on which they were working; Sullivan v. Simplex Electricai Co. 178 Mass. 35, 39, 59 N. E. 645, in which the hands of a boy nineteen years of age who was feeding rubber between rollers were caught and injured by the rollers; Ford v. Mt. Tom Sulphite Pulp Co. 172 Mass. 544, 546, 48 L. R. A. 96, 52 N. E. 1065, wherein the servant was injured by a set screw in a revolving shaft which had been placed there during his service; Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep. 914; Gowen v. Harley, 6 C. C. A. 190, 197, 12 U. S. App. 574, 56 Fed. 973, 980; Motey v. Pickle Marble & Granite Co. 20 C. C. A. 366, 369, 36 U. S. App. 682, 74 Fed. 155, 158; McCain v. Chicago, B. & Q. R. Co. 22 C. C. A. 99, 100, 40 U. S. App. 181, 76 Fed. 125, 126; Brossman v. Lehigh | preciate a danger whose knowledge and apValley R. Co. 113 Pa. 490, 57 Am. Rep. 479, preciation are so unavoidable to a person 6 Atl. 226; Smith v. Winona & St. P. R. Co. of ordinary intelligence and prudence in a 42 Minn. 87, 43 N. W. 968; Devitt v. Pa- like situation. King v. Morgan, 48 C. C. A. cific R. Co. 50 Mo. 302, 305; Moon Anchor 507, 509, 109 Fed. 446, 448; Moon Anchor Consol. Gold Mines v. Hopkins, 49 C. C. A. Consol. Gold Mines v. Hopkins, 49 C. C. A. 347, 353, 111 Fed. 298, 304; Fisk v. Fitch- 347, 353, 111 Fed. 298, 304; Sullivan v. burg R. Co. 158 Mass. 238, 33 N. E. 510; Simplex Electrical Co. 178 Mass. 35, 39, Gibbons v. British & N. A. Steam Nav. Co. 59 N. E. 645; Buckley v. Gutta Percha & 175 Mass. 212, 55 N. E. 987; Chesapeake & Rubber Mfg. Co. 113 N. Y. 540, 21 N. E. 717. O. R. Co. v. Hennessey, 38 C. C. A. 307, The machinery, the cogs, the slippery lever, 311, 96 Fed. 713, 717; Johnson v. Devoe and their relation to each other, were open, Snuff Co. 62 N. J. L. 417, 41 Atl. 936, 938; visible, known. There was nothing reconEpperson v. Postal Teleg. Cable Co. 155 Mo. dite, imperceptible, uncertain, in the dan346, 358, 373, 50 S. W. 795, 55 S. W. 1050; ger impending from them. It was plain Roberts v. Missouri & K. Teleph. Co. 166 and certain that if the employee permitted Mo. 370, 379, 66 S. W. 155; Steinhauser v. her hand to slip between the revolving cogs Spraul, 127 Mo. 541, 562, 27 L. R. A. 441, that hand would be injured. The defect of 28 S. W. 620, 30 S. W. 102; Campbell v. the unguarded gearing was obvious, the danDearborn, 175 Mass. 183, 55 N. E. 1042; ger from it was apparent, and, without a Barry v. New York Biscuit Co. 177 Mass. disregard of the rules to which we have ad449, 452, 59 N. E. 75; Giliin v. Patten & S. verted and the decisions of the Supreme R. Co. 93 Me. 80, 86, 44 Atl. 361; Wood v. Court and of the other courts of the counLocke, 147 Mass. 604, 18 N. E. 578; Mayes try to which reference has been made, there v. Chicago, R. I. & P. R. Co. 63 Iowa, 563, is no escape from the conclusion that the 14 N. W. 340, 19 N. W. 680; Hunt v. Kile, evidence in this case established without con38 C. C. A. 641, 645, 98 Fed. 49, 53; Lamson tradiction or dispute the facts that the v. American Axe & Tool Co. 177 Mass. 144, plaintiff, by continuing in her employment 83 Am. St. Rep. 267, 58 N. E. 585; Demers without complaint, in the presence of an obv. Marshall, 178 Mass. 9, 12, 59 N. E. 454; vious and known defect and of a plain and Hall v. Wakefield & S. Street R. Co. 178 apparent danger, assumed the risk of the Mass. 98, 59 N. E. 668. injury which she sustained, so that she never had any cause of action against the defendant; and the court below should have so instructed the jury. The record in the case at bar has been searched in vain for any fact or testimony adequate to withdraw it from the principles of law established by this strong current of decision, or to distinguish it from the cases which have been cited to illustrate the rule. This plaintiff was a young woman twenty years of age. The presumption is that she was possessed of ordinary intelligence and ability. She had been at work in factories for more than a year, and in the establishment of the defendant for more than six months. She knew that the gearing which injured her had been covered before Christmas, and that it was uncovered from that time until she was injured on February 13, 1902. She had worked at this machine by the side of the exposed mashing cogs from ten to fifteen minutes every day during the six weeks that they remained uncovered. She testified that she did not know that it was dangerous to run the gearing uncovered, but she knew the action of the lever, the greasy condition of its handle, its proximity to the mashing cogs, and she could no more have failed to know and to appreciate that the revolving cogs would crush her hand if she permitted it to slip between them than she could have failed to appreciate that boiling water would scald or fire would burn. One cannot be heard to say that he does not know or ap | The judgment below is accordingly reversed, and the case is remanded to the Circuit Court for a new trial. Thayer, Circuit Judge, dissenting: I do not concur in the foregoing opinion. The laws of Missouri (Rev. Stat. 1899, § 6433) required the defendant company to keep the gearing which occasioned the plaintiff's injury "safely and securely guarded when possible" for the protection of its employees. This statute was enacted in pursuance of a sound public policy; that is to say, to insure, as far as possible, the safety of the many thousand artisans and laborers who are daily employed in mills and factories throughout the state, and while so employed are exposed to unnecessary risks of getting hurt if belting, gearing, drums, etc., in the establishments where they work are left uncovered when so situated that they may be covered readily. The act was inspired by the same motives which induced the Congress of the United States (act March 2, 1893, chap. 196 [27 Stat. at L. 531, U. S. Comp. Stat. 1901, p. 3174]) to require cars to be equipped with automatic coupling appliances when it was discovered that hundreds of brakemen were annually |