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Opinion of the Court.

239 U. S.

under similar circumstances." To these instructions there was no objection except to that part which extended the duty of the company to the protection of passengers after they had alighted from the train.

But the court instructed the jury, at the request of plaintiffs, that the railway company "owed its passengers the duty to exercise that high degree of care that would be exercised by every prudent person under the same or similar circumstances, and a failure to exercise such degree of care would be negligence." This instruction is attacked as error only because it imposed a high degree of care on the company after Bigger had left the train "and was therefore in a position to use care in taking care of himself." The ground of the objection seems to be that the duty of the company ceased upon the arrival of its train at Longview. To this, as we have already said, we cannot assent. The same care was necessary to be observed for Bigger's protection at that place, under the circumstances presented by the record, as was necessary to be observed in his transportation, and the charge of the court correctly expressed it. Penn. Co. v. Roy, 102 U. S. 451; Indianapolis &c. R. R. v. Horst, 93 U. S. 291.

But even if the railway company could plead a lesser degree of care than that declared to be its duty in the charge of the court, it is very disputable if error was committed to the prejudice of the company. Between the plaintiffs' ground of action and the company's ground of defense there was a clear line of distinction. The testimony of plaintiffs was to the effect that Bigger was compelled to descend from the train in the midst of a severe storm to the inadequate protection of a mere shanty to await the car for San Antonio, such car being attached to the train he was on and to which he could have gone by simply passing through other cars had he been told that it was part of the train. The company asserts that he was told and that he disregarded the information. If the latter

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was true the company was not liable, and the court so instructed the jury. If the testimony of plaintiffs was true the company did not observe even ordinary care; and which was the fact it was for the jury to decide, and their judgment in deciding could not have been embarrassed by a consideration of degrees of negligence or care.

The other contentions of the company we think do not require special comment. They are directed to the proposition, many times repeated, that the company owed no duty to Bigger or else had observed it, and that Bigger had not used care either in avoiding exposure or in preventing an injurious effect from it. They attack the sufficiency of the evidence and assert, in effect, that its conflicts should be resolved against plaintiffs. The propositions of law involved are those which we have considered.

Judgment affirmed.

The CHIEF JUSTICE, MR. JUSTICE VAN DEVANTER and MR. JUSTICE MCREYNOLDS dissent, because they are of opinion that some of the instructions complained of laid upon the carrier a heavier duty than the law recognizes.

ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. SWEARINGEN.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 74. Argued November 11, 1915.-Decided December 13, 1915.

Under the Employers' Liability Act of 1908, a breach of the Hours of Service Act on the part of the carrier does not operate to deprive it of the defenses of contributory negligence and assumption of risk unless the breach contributed to the injury.

Argument for Plaintiff in Error.

239 U.S.

THE facts, which involve the construction and application of the Hours of Service Act, are stated in the opinion.

Mr. Robert Dunlap, with whom Mr. Gardiner Lathrop, Mr. J. W. Terry and Mr. A. H. Culwell were on the brief, for plaintiff in error:

Violation of the Hours of Service Act is not negligence per se destroying defenses of assumed risk and contributory negligence regardless of whether or not it was the proximate cause. St. Louis &c. Ry. v. McWhirter, 229 U. S. 265; Nitro-Glycerine Case, 15 Wall. on p. 537.

A party charging negligence as a ground of action must prove it. Such fact is not to be solved by indulging in surmise or conjecture, or resorting to imaginary possibilities. Puget Sound Co. v. Hunt, 223 Fed. Rep. 952, 955; 29 Cyc. 600; Missouri &c. Ry. v. Foreman, 174 Fed. Rep. 377.

To enable plaintiff to recover there must be proof that the cause which operated to produce the death had its origin in some specific and particular negligent act of the defendant, for the result of which it was legally liable. See Midland R. R. v. Fulgham, 181 Fed. Rep. 91, 95; Felt v. Boston & M. R. R., 161 Massachusetts, 311; 37 N. E. Rep. 375; Hannigan v. Lehigh R. R., 157 N. Y. 244.

The special charge requested by plaintiff in error as to the Hours of Service Act as foundation for recovery should have been given to the jury, as the charge of the court did not comprehend all of relieving clauses contained in the proviso of the act and on which evidence was offered. Southern Pacific Co. v. Pool, 160 U. S. 438; Slocum v. New York Life Ins. Co., 228 U. S. 364, 369; United States v. New York, O. & W. Ry., 216 Fed. Rep. 702; C., St. L. & N. O. v. Pullman, 139 U. S. 79, 86; United States v. Great Northern Ry., 220 Fed. Rep. 630, 633; M., K. & T. Ry. v. United States, 231 U. S. 112; United States v. Lehigh Valley R. R., 219 Fed. Rep. 532; Pennell v. P. & R. Ry., 231 U. S. 675.

239 U.S.

Argument for Plaintiff in Error.

It was not the intent of Congress to make railway companies insurers nor to exact from them practical impossibilities. Northern Pac. Ry. v. United States, 213 Fed. Rep. 163; United States v. Mo. Pac. Ry., 213 Fed. Rep. 170.

The court erred in directing the jury that plaintiff might recover in any one of five contingencies mentioned ignoring the question whether in any such case the alleged negligence was the proximate cause of the accident or injury, and moreover the evidence was insufficient to justify the submission of certain alleged grounds of recovery to the jury. Chambers v. Everding, 71 Oregon, 521; 143 Pac. Rep. 616; Tex. & Pac. Ry. v. Bigham, 90 Texas, 223; M. & St. P. Ry. v. Kellogg, 94 U. S. 469; Wolosek v. Chicago & M. Electric Ry., 158 Wisconsin, 475; Kreigh v. Westinghouse Co., 152 Fed. Rep. 120; Cole v. German Savings Society, 124 Fed. Rep. 113; Stefanowski v. Chain Belt Co., 129 Wisconsin, 484; Missouri Pacific Ry. v. Columbia, 65 Kansas, 390; 69 Pac. Rep. 338; Cleghorn v. Thompson, 62 Kansas, 727; 1 Sutherland on Damages, 3d ed., § 16; 1 Shear. & Red. on Negligence, 4th ed., § 28; Fleming v. Beck, 48 Pa. St. 309, 313; Hoag v. L. S. & M. S. Railway, 85 Pa. St. 293; Morrison v. Davis, 20 Pa. St. 171, 175; Railroad Co. v. Reeves, 10 Wall, 176; see also C., St. P. M. & O. Ry. v. Elliott, 55 Fed. Rep. 949, 952; Scheffer v. Railroad Co., 105 U. S. 249; Glassey v. Worcester Con. St. Ry., 185 Massachusetts, 315; Stone v. B. & A. R. R., 171 Massachusetts, 536.

The evidence was conclusive that plaintiff assumed the risk of the position of the engine and position and size of the sill step. Seaboard Air Line v. Horton, 233 U. S. 504; Kohn v. McNulta, 147 U. S. 238; So. Pac. Co. v. Seley, 152 U. S. 145.

The evidence was wholly insufficient to submit certain grounds of alleged negligence to the jury and as to burden of proof. Griffin v. Springfield Street Ry., 219 Massachusetts, 55; Beach on Cont. Neg., 3d ed., §§ 427, 428.

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Mr. Perry J. Lewis, Mr. C. P. Johnson and Mr. S. Elgelking, for defendant in error submitted:

The sixteen-hour law was enacted for the safety of employés; if its violation contributes to the injury, the railroad is liable, and the defenses of contributory negligence and assumed risk are not available. The general law and the Employers' Liability Act forbid all argument on this proposition. The McWhirter Case, 229 U. S. 265, fails to support the contention of plaintiff in error; but does support the decision of the court below.

Plaintiff had been on duty nearly eighteen hours when he was injured; the testimony shows he was more dead than alive: he was sleepy and tired after being on duty from 7.00 P. M. to 1.25 P. M. the next day; in fact, he was thrown from the pilot because he was not in a physical condition to stay on.

The trial court did not make liability depend merely on the working overtime. Throughout the charge negligence causing or contributing to the injury is made the basis of recovery. Grand Trunk Ry. v. Ives, 144 U. S. 408.

No stronger case of proximate cause arising from the evidence could be presented than in this case. Del., L. & W. Ry. v. Converse, 139 U. S. 469, 472.

In support of contention of defendant in error as to proximate cause and assumption of risk, see also Hartford Life Ins. Co. v. Unsell, 144 U. S. 439, 447; Erie R. R. v. Winter, 143 U. S. 60, 70; Robinson v. Belt, 187 U. S. 41; I. & St. L. R. R. v. Horst, 93 U. S. 291, 298; Washington & G. R. R. v. Harmon, 147 U. S. 571, 580.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a suit for personal injuries suffered by the plaintiff (defendant in error,) while acting as fireman upon and in charge of a defective engine that had been picked up by a train. He had been kept on duty for more than

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