Argument for Plaintiff in Error.

196 U. S.

ducting his business, though a safer one might be followed, if the servant fully knows the risk and continues to work.

There are risks and dangers incident to most employments, those risks the parties have in view when engagements for services are made, and in consideration of which the rate of compensation is fixed. In all engagements of this character the servant assumes those risks that are incident to the service, and as between himself and the master he is supposed to have contracted on those terms, and if an injury is sustained by the servant in that service, it is regarded as an accident, and the misfortune must rest on him. Woods' Master & Servant, 2d ed. § 326; 3 Woods' Railway Law, § 370, p. 1452; 14 Am. & Eng. Ency. of Law, 843, 845; Tex. & Pac. Ry. Co. v. Minnick, 57 Fed. Rep. 362; Tuttle v. Railway, 122 U. S. 189; Randall v. Railway, 109 U. S. 478; H. & T. C. Ry. Co. v. Conrad, 62 Texas, 627; Woodworth v. St. P., M. & M. Ry. Co., 18 Fed. Rep. 282; Mo. Pac. Ry. Co. v. Summers, 71 Texas, 700; Green v. Cross & Eddy, Receivers, 79 Texas, 130; Naylor v. Railway Co., 5 Am. & Eng. R. R. Cases, 406; Wonder v. Baltimore Ry. Co., 32 Maryland, 411; Crilly v. Texas & Pac. Ry. Co., 53 Am. & Eng. R. R. Cases, 104; Kohn v. McNulty, Receiver, 147 U. S. 238.

When the proof establishes a usage or custom, the presumption is that the employé contracted with regard to said usage or custom, and if he seeks to avoid its force and effect, the burden is upon him to show that its existence had been concealed from him by the company, and that he did not know of same, nor could have known of same, by the use of ordinary diligence. Watson v. Railway Co., 58 Texas, 438; St. Louis & S. W. v. Spivey, 73 S. W. Rep. 973.

It is the duty of the master to advise the servant, or to inform him, of the dangers incident to the employment, if the servant is ignorant of them. If the dangers are obvious and patent, and the servant advises himself, of course the duty of being advised by the master would not be imposed. Gulf, Colo. & S. Fé Ry. Co. v. Darby, 57 S. W. Rep. 446.

Mr. Leigh Clark for defendant in error, cited Cent. Trust Co. v. E. T. V. & G. Ry. Co., 73 Fed. Rep. 661; Tex. & Pac. Ry. Co. v. Archibald, 170 U. S. 674; George v. Clark, 85 Fed. Rep. 607; Gulf, Colo. & S. Fé Ry. Co. v. Darby, 67 S. W. Rep. (Texas) 446; G., H. & S. A. Ry. Co. v. Mortson, 71 S. W. Rep. (Texas) 707; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 417; Gardner v. Mich. Cent. Ry. Co., 150 U. S. 349, 361; Richmond & D. Ry. Co. v. Powers, 149 U. S. 44; Mo. Pac. Ry. Co. v. Everett, 161 U. S. 451.

MR. JUSTICE WHITE delivered the opinion of the court.

This suit was commenced in a state court by W. W. Swearingen, the defendant in error, and, on the application of the defendant, the Texas and Pacific Railway Company, was removed to the Circuit Court of the United States as one arising under the laws of the United States, because the railway company was chartered under an act of Congress.

The action was to recover damages for personal injuries sustained by reason of the alleged negligence of the defendant company, in whose service at the time of the injury the plaintiff was employed as a switchman. The negligence alleged on the part of the company was the existence, in close proximity. to a switch track, of a scale box, by striking against which the plaintiff was injured whilst doing duty as a switchman. In addition to a general denial the railway company specially pleaded that the scale box in question was at a safe distance from the track on which the plaintiff was hurt when working and, moreover, that the plaintiff had assumed the risk, if any, arising from the situation of the scale box, and had in any event been guilty of contributory negligence. There was a verdict and judgment for the plaintiff, and an affirmance of such judgment by the Court of Appeals. 122 Fed. Rep. 193. The assignments of error are based, first, on a ruling of the trial court in rejecting evidence; second, on the refusal to direct a verdict; and, third, on an exception taken to the charge

given to the jury. To pass upon them requires an appreciation of the proof, and, therefore, before coming to consider the assignments, we summarize the testimony.

It was shown that One track, No. 1, ran

On the right of this

The accident occurred after dark on the evening of February 7, 1902, in the switch yard at El Paso. in that yard there were several tracks. over the bed of the scales in question. scale there was what was called a scale box, which rose to about the height of six feet, and was about five feet wide and eighteen inches deep. On the other side of this structure there was a track described as track No. 2, and beyond this, to the right, were two other tracks, known respectively as track No. 3 and track No. 4. The space between a ladder on the side of a freight car when moving on track No. 2 and the scale box in question was shown by the evidence to be only 19 inches.

The plaintiff testified concerning the accident as follows: "I was hurt on the evening of the 7th of February, 1902, while working as a switchman after dark, at about 6 o'clock and 45 minutes.

"I was a day switchman, but we worked until after dark. "My duties as a switchman were to assist in the moving, placing and switching of cars, coupling and uncoupling them, and making up trains, and generally to obey the order of Yardmaster Moore, under whom we were working, and my duties also required me to ride on the cars while they were being moved.

"On this night we were making up a transfer to take to the Southern Pacific Railway, and the cars we had to get were on No. 2 track. My station was with the engine, called 'following the engine.' I worked up near the engine.

"The engine was at the west end of the yard, west of track No. 2, with me with it, and it backed down east into No. 2 track, with me riding on the footboard at the east end of the engine, to get these cars, and we passed the scale box, although I did not see it, and reaching the cars I coupled the engine to them, and not getting a signal from the yardmaster, who was still

farther east of me, as was also the other switchman, Williams, I walked east down the string of cars about two car lengths, and getting the signal I passed the same to the engineer, and the engine and cars started up again going west so as to go out on another track, and as the cars started I got up on a box car to ride down past the switch at the west end of track No. 2, so as to throw the switch and let the train on another track.

"There is a ladder on the side of a box car, and a step called a stirrup under the ladder under the bottom of the car, and I was holding on to the ladder with my hands (illustrating by holding his hands above his head as if climbing a ladder), and my lantern was hanging on my right arm, and I was looking back east for a signal from the yardmaster, as it is my duty to do. I do not know whether he wanted to give one or not, but it is my duty to be on the lookout, although I do not have to look in his direction all the time, when my right shoulder struck the scale box, and I fell down between the scale box and the cars, and I was dragged and badly injured. We had probably eight or ten cars at the time, and I was riding properly and hanging out a little from the car, which is proper, and I was on the north side of the car, which is also proper, so as to signal the engineer."

The employé who built the scales testified as follows:

"It is my business to know how much a car passing on a side track will clear the scale box, and these tracks at this place are standard gauge apart, and the scale box is standard, and as I had to put the scale box there to facilitate business and for convenience, I had no more room because the lever of the scale is a certain length to get the fulcrum. The tracks are standard, and are not farther apart, because there is no more room to put them farther apart.

"The distance that I put this scale box from track No. 2 is standard, and is considered a safe and proper distance in putting in scales where the tracks are standard guage apart.

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"I am bound to put my scales in according to the length of the lever, and if tracks are already there and are standard distance apart I have a uniform and standard distance from the tracks.

"We have side tracks at most places on each side of the scales. The tracks in this yard are standard guage apart, and where ground is scarce we have to economize in space, but where ground is plenty the tracks can be farther apart."

The evidence for the company also showed that the scales in question had been erected a number of years prior to the happening of the accident and after tracks Nos. 1 and 2 were built. The superintendent of terminals of the defendant company testified that "south of track No. 4 there is a space left for four or five more tracks." The same witness also stated that the customary position of a switchman while riding on a car and ladder "is to swing out from the car with his body," and that "a well-developed man cannot safely pass by the scale box on track No. 2, while riding on a side of a car on the ladder, if he hangs out from the car."

There was evidence that at other yards than the one in question the distances from the side of a standard box car to adjoining scale boxes varied from sixteen inches to one hundred and sixty-eight inches.

Testimony was introduced tending to show that the plaintiff, before he was hurt, knew of the proximity of the scale box to track No. 2. Concerning his employment and knowledge of the location of the scales, plaintiff testified that he had made one trip as extra brakeman in the service of the railway company in January, 1900; that in December, 1901, as brakeman, he made about one trip between El Paso and Toyah; that he had worked in the El Paso yards, as extra switchman, two nights and three days in January, 1902, and went to work there regularly as switchman on February 1, 1902. He denied any recollection of ever having worked on track No. 2 during his employment in January, 1902, and, referring to his employment in the early days of February, 1902, plaintiff says: