end of the arm of a mail crane-a device adopted with the conditions imposed by the Postoffice Department-is, when in use, as near to the train as 14 inches, the farthest point at which a bag can be picked up from a crane being 29 inches, and a less distance than that being essential to insure getting

the bag.

& P. R. Co. v. Landrigan, 191 U. S. 461, 48 L. ed. 262, 24 Sup. Ct. Rep. 137; Texas & P. R. Co. v. Gentry, 163 U. S. 353, 41 L. ed. 186, 16 Sup. Ct. Rep. 1104; Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64-69, 48 L. ed. 96-101, 24 Sup. Ct. Rep. 24, 15 Am. Neg. Rep. 230; Chesapeake & O. R. Co. v. Cowley, 92 C. C. A. 201, 166 Fed. 283; Norfolk & W. R. Co. v. Beckett, 90 C. C. A. 25, 163 Fed. 479; West v. Chicago, B. & Q. Decided R. Co. 103 C. C. A. 293, 179 Fed. 801; Hawley v. Chicago, B. & Q. R. Co. 66 C. C. A. 216, 133 Fed. 150; Boston & N WRIT of Certiorari to the Court M. R. Co. v. Baxter, 142 C. C. A. 549,

[For other cases, see Master and Servant, II. b, in Digest Sup. Ct. 1918 Supp.]

[No. 106.]

Submitted November 19, 1920.
January 3, 1921.

See same case below, -, 207 S. W. 323.

the Eighth 228 Terminal

Tex. Civ. App.

Supreme Judicial District of the State v. Jarvis, 141 C. C. A. 562, 227 Fed. 9, of Texas to review a judgment which 11 N. C. C. A. 1036; Barnhart v. Kanaffirmed a judgment of the District Court sas City, M. & O. R. Co. 107 Tex. 638, of El Paso County, in that state, in favor 184 S. W. 176; International & G. R. of plaintiff in an action for death, Co. v. Stephenson, 22 Tex. Civ. App. brought under the Federal Employers' 220, 54 S. W. 1086; Texas & P. R. Co. Liability Act. Reversed. v. Johnson, 48 Tex. Civ. App. 135, 106 S. W. 773; Louisville & N. R. Co. v. Millikins, 21 Ky. L. Rep. 489, 51 S. W. 797, 6 Am. Neg. Rep. 526; Chicago, B. & Q. R. Co. v. Gregory, 58 Ill. 272; Rowlands v. Chicago & N. W. R. Co. 149 Wis. 51, 135 N. W. 156, Ann. Cas. 1916E, 714; Denver & R. G. R. Co. v. Burchard, 35 Colo. 539, 86 Pac. 749, 9 Ann. Cas. 994; Kanawaha & M. R. Co. v. Kerse, 239 U. S. 576-582, 60 L. ed. 448-451, 36 Sup. Ct. Rep. 174; Texas & P. R. Co. v. Swearingen, 196 U. S. 51, 49 L. ed. 382, 25 Sup. Ct. Rep. 164, 17 Am. Neg. Rep. 422.

The facts are stated in the opinion. Messrs. William I. Gilbert and William F. Herrin submitted the cause for petitioner. Messrs. Guy V. Shoup and Henry H. Gogarty were on the brief:

Linder, at the time of his death on the morning of July 3, 1916, was employed in interstate commerce, and consequently the Federal Employers' Liability Act applied, and Linder had assumed all the risks and dangers incident to his employment, and the injury which he received and which resulted in his death was the result of such risk.

Kenney v. Meddaugh, 55 C. C. A. 115, 118 Fed. 209; Missouri P. R. Co. v. Somers, 71 Tex. 700, 9 S. W. 741; Jacobs v. Southern R. Co. 241 U. S. 229, 60 L. ed. 970, 36 Sup. Ct. Rep. 588; Cunard S. S. Co. v. Smith, 167 C. C. A. 174, 255 Fed. 846; Butler v. Frazee, 211 U. S. 459, 53.L. ed. 281, 29 Sup. Ct. Rep. 136; Boldt v. Pennsylvania R. Co. 245 U. S. 441, 62 L. ed. 385, 38 Sup. Ct. Rep. 139; Baugham v. New York, P. & N. R. Co. 241 U. S. 237, 60 L. ed. 977, 36 Sup. Ct. Rep. 592, 13 N. C. C. A. 138.

Messrs. C. B. Hudspeth and George E. Wallace submitted the cause for respondent. Mr. A. J. Harper was on the brief:

The deceased did not assume the risk. Washington R. & Electric Co. v. Scala, 244 U. S. 630, 61 L. ed. 1360, 37 Sup. Ct. Rep. 654; Missouri, K. & T. R. Co. v. Williams, 103 Tex. 228, 125 S. W. 881; Virginian R. Co. v. Halstead, 169 C. C. A. 444, 258 Fed. 428; Baltimore

Mr. Justice Holmes delivered the opinion of the court:

This is an action brought in a state court against the petitioner for causing the death of Linder, the plaintiff's At the trial the pe[416] intestate. titioner requested instructions that Linder assumed the risk of injury from the cause complained of, and that a verdict should be rendered for the defendant. These were refused, the defendant saving its rights upon the record, and the plaintiff got a verdict and judgment. The court of civil appeals affirmed the judgment; the supreme court denied a writ of error, and thereupon a writ of certiorari was allowed by this court, upon the ground that an immunity set up under the Federal Employers' Liability Act was involved.

The facts, so far as made definite by the evidence, are not in dispute. Linder was employed by the defendant as an engineer upon a train running from El Paso, Texas, to Deming, New Mexico. At Carney, in New Mexico, he was found sitting

on his engineer's seat, unconscious, with his right arm and pretty nearly half of his body outside of the cab, leaning with the right side and arm over the arm rest of the engine. There was a cut about an inch over the right ear. He had been struck by the end of a mail crane, or a mail sack that had been placed on it to be picked up by a mail train following Linder's, which was an extra, carrying soldiers. In order to have uniformity, the Postoffice Department fixes the distance of the cranes from the equipment, and the length of the hooks, so that, in the language of a witness for the plaintiff, "the same hook that will take a sack off a crane in Arizona or New Mexico will take it as it goes through western Kansas." The evidence was all to the effect that this crane stood at the same distance as all the others along the road. The end of the crane, when elevated, was not nearer to the train than 14 inches, but might have been found to be as near as that, and therefore near enough to be capable of hitting a person leaning out of the window, as indeed was shown by the event.

Linder had been upon this route for some years, had [417] passed over it many times, and must be presumed to have known of the crane. It was visible from the engineer's seat, half a mile ahead, through a front window. About a mile before reaching Carney, Linder had noticed that the main driving pin on the engine was getting hot, and crept out upon the running board to see about it, and had returned. It may be supposed that, at the time of the accident, he was leaning out of the side window to look at it again, and was acting in the course of his duty. The position in which his body was first seen and the place of the wound indicate that he was more than 14 inches out from the engine's side.

special circumstances to qualify this part of the question-which is whether or not it is consistent with the duty of a railroad to its employees to erect railroad cranes of which the end of the arm, when in use, is 14 inches from the side of the train. The railroad is required and presumed to know its duty in the matter, and it would seem that the court ought to be equally well informed. It cannot be that the theory of the law requires it to be left to the uncertain judgment of a jury in every case. See Southern P. Co. v. Pool, 160 U. S. 438, 440, 40 L. ed. 485, 436, 16 Sup. Ct. Rep. 338.

It is impracticable to require railroads to have no [418] structures so near to their tracks as to endanger people who lean from the windows of the cars. Most passengers are familiar with cautions against putting out heads or arms. However it may be in other cases where there is more or less choice as to position, this is true as to the postal cranes. The farthest point at which a bag could be picked up is 29 inches, and it requires a less distance than that to be sure of getting the bag. In short, it would be impossible to use the contrivance with absolute certainty that no accident would happen if a man put his head out at the wrong moment. It equally is impossible to condemn railroads as wrongdoers simply for adopting the device with the conditions imposed by the Postoffice Department. When a railroad is built, it is practically certain that some deaths will ensue, but the builders are not murderers on that account when the foreseen comes to pass. On the common-law principles of tort, the adoption of an improvement in the public interest does not throw the risk of all incidental damage upon those who adopted it, however fair it may be to put the expenses of insurance upon those who use it. It is going very far to leave it open to a jury to attach liability in tort to a system by which the ends of the arms of postal cranes come to 14 inches from the car.

In this case the question is not whether a reasonable insurance against such misfortunes should not be thrown upon the traveling public through the railroads, or whether it always is possible for a rail- But, further, we must take it, as we road employee to exercise what would be have said, that Linder perfectly well knew called due care for his own safety, and to of the existence of the crane where it do what he is hired to do. The question is stood, and could have seen it from his whether the railroad is liable under the seat had he looked, long before he statute, according to the principles of the reached it. He entered the employment common law regarding tort. The first of the railroad when it had this applielement in it is the standard of conduct to ance manifest in its place. The only elebe laid down for the road. The stand- ment of danger that he may not have apard concerns a permanent condition not preciated was the precise distance which only at this place, but at many places the point of the crane would reach. But along the road, and presumably at in- an experienced railroad man cannot be numerable others on all the large rail- supposed to have been ignorant that such roads of the United States. There are no a projection threatened danger, and,

knowing so much, he assumed the risk danger to trainmen; that, on the line inthat obviously would attend taking the volved, the arms of cranes were extended chances of leaning well out from [419] horizontally toward the track, so as to be the train. As we have said, the only a source of danger to engineers, only two possible inference on the uncontra- or three times a day, at widely separated dicted evidence of the plaintiff's wit- intervals, when they were used to support nesses was that he leaned out con- a mail bag for ten minutes before the arsiderably more than 14 inches, as rival of each mail train,-a fraction of an shown by the position of his body hour in twenty-four; and that Linder, and the place of the cut on his head. when leaning out of his cab to see the The probability is that the distance of condition of a hot driving pin, was struck the crane was somewhat greater than the an inch above his ear, so that, if the arm minimum that we have assumed, but that had been 3 or 4 inches farther from the we lay on one side. Confining ourselves track, he would not have been injured. to the case of postal cranes, we are of opinion that to allow the jury to find a verdict for the plaintiff was to allow them to substitute sympathy for evidence, and to impose a standard of conduct that had no warrant in the common law. Butler v. Frazee, 211 U. S. 459, 465-467, 53 L. ed. 281, 284, 285, 29 Sup. Ct. Rep. 136; Kenney v. Meddaugh, 55 C. C. A. 115, 118 Fed. 209.

Judgment reversed.

The record does not show: That government requirements for mail cranes require them to be as close to the track as this one was. On the contrary, the only evidence to the point is that of an employee in the government mail service, who testified that the hooks on mail cars are adjusted to catch mail bags if within 29 inches of their sides; that, allowing for the swaying of the cars, they will catch them if 26 inches away, and that the sides of the cars are "flush" with the sides of engine cabs. The point of the crane arm which killed Linder "was about 14 inches from the side of the cab;" but on this evidence it could have been placed 26 inches away, where it would not have been a source of danger to him.

Mr. Justice Clarke, dissenting: Engineer Linder, when leaning out of his cab, in the discharge of his duty, to see the condition of a "hot driving pin," was struck on the head and killed by the end of a horizontally extended arm of a mail crane. There is no question of con- Although the civil engineer who had tributory negligence in the case, the charge of the cranes on the division was judgment could not be reversed for that, a witness for the company, he was not under the Federal Employers' Liability asked the distance of the crane causing the Act. The negligence of the railroad com- injury, or of any other crane, from the pany is palpable, but, nevertheless, the track,-a suspicious circumstance,-and finding of a properly instructed jury and that other cranes were at the same disof two state courts is here reversed be-tance [421] as the one which caused cause this court concludes, as a matter of the injury can only be inferred from fact, that the mail crane arm was such an obvious and conspicuous source of danger to Linder that he must be held, as a matter of law, to have assumed the danger from it, by continuing in the service of the company.

The record shows: That Linder was a freight engineer, and, as such, had nothing to do with mail cranes, and had neither occasion nor opportunity, except very rarely, to see what, if any, danger the crane arms could be to him when in the discharge of his duties, for, during the two [420] years next before his death, he had made but twelve trips on passenger trains, only three of which were on trains which "picked up" mail from cranes; that when mail cranes are not in use the arms hang vertically beside the supporting post, which is 3 feet 8 inches from the side of an engine, and obviously in such position they are not a source of

inadequate statements of witnesses who had never made any measurements, and who gave the merest impressions with respect to them. Where, as here, 3 or 4 inches is a matter of life and death, randon estimates are valueless and should not be accepted, especially when the company certainly had perfectly definite information, which was suppressed. A hard-and-fast assumption of law should not be based on findings of fact by this court, derived from such evidence.

There is no description whatever in the record of the length, dimensions, or appearance of the arms of the crane which caused the death of Linder. How, on such evidence, can it be justly stated, that such crane arm was so permanent and conspicuous a source of danger that, as a matter of law, Linder, a freight engineer, usually running past it at high speed when its arms were down, should be

charged with knowing and appreciating | trine as it has been worked out in the and assuming the risk?

There is no evidence whatever that Linder actually knew that the crane arm extended close enough to the track to cause [423] EDWARD S. ATWATER, Pehim injury, and the latest formulation by this court of the rule applicable to the case is:

In practice certainly, and I think in theory, the decision of the court in this case will introduce a new and unfor- Peugh v. Davis, 96 U. S. 332, 24 L. tunate standard into the law of assump-ed. 775; Brick v. Brick, 98 U. S. 514, 25 tion of risk, which will confuse the doc- L. ed. 256; Jackson v. Lawrence, 117 U.