■JENKINS, Circuit Judge,
after this statement of the'case, delivered the opinion of the court.
Whether the lessor railway company is relieved from liability for injuries resulting from the negligent operation of the road by the lessee is a question upon which courts may be said to be not wholly at agreement, although the supposed disagreement is more seeming than real. Unquestionably, a railroad company cannot without legislative authority lawfully lease its line of railway, and in such case cannot, by in fact so doing, relieve itself of any liability flowing from the manner of its operation; and this because the leasing was without authority of law, and the lessee stands in the relation of agent of the lessor, acting for the lessor, and binding the lessor by every act done in the management of the road. Where there is due authority of law for the leasing of a railway, the company cannot, by leasing its line, discharge itself of those responsibilities which are imposed upon it by the law of its incorporation, and cannot relieve itself from liability in the discharge of those positive duties which it owes to the public, and have been specially imposed by its charter. It is, however, a different question when the lessor company is sought to be made liable for the negligent management of the road which it was authorized to lease, and of which management it had no control. In such case we perceive no ground of public policy which should impose such liability upon the lessor company with respect to injuries resulting to individuals from the negligent operation of the railway. ’ The subject has been much discussed, and some of the cases are characterized by lack of discrimination between liability for duties absolutely imposed by law upon the lessor company and duties arising from ■ the manner of the operation of trains.
We think the distinction is well stated by tne supreme court of Kansas in Railway Co. v. Curl, 28 Kan. 622, in an opinion delivered by Judge Brewer, then of that court, now associate justice of the supreme court of the United States. It is there said, in response to a contention that, where the statute authorizes the lease by one railway company to another of its track, the lessor company is not responsible for injuries caused by the torts of the lessee company:
“To a certain extent this proposition is true. If the injury results from negligence in the handling of trains or in the omission of any statutory duty connected with the management of the road, matters in respect to which the lessor company could, in the nature of things, have no control, then the lessee company will alone he responsible; but, when the injury results from the omission of some duty which the lessor itself owes to the public in the first instance, — something connected with the building of the road-then we think the company assuming the franchise cannot divest itself of responsibility by leasing its track to some other company. Thus, for instance, in the case at bar, the defendant was charged with the duty of placing sufficient cattle guards before it either used this track which it constructed, or permitted any one else to use it; and it cannot divest itself of responsibility for injuries resulting from such omission by leasing its track to some other company. The injury resulted directly from its own wrong, and not from any mere negligence on the part of the St. Louis & San Francisco Railroad Company. It cannot relieve itself by contracting with some other party to discharge its statutory duty.”
[283]*283The whole subject is elaborately and ably reviewed by Judge Lurton, of the Sixth circuit, in the case of Arrowsmith v. Railroad Co., 57 Fed. 165. Substantially all the cases bearing upon the question are there assembled and carefully reviewed and distinguished. It would be useless to repeat here the history and analysis of the cases which have so satisfactorily been had in that case. We adopt fully that opinion upon the question.
The lease of the railway here in question was authorized by lav/. The statutes of Illinois f? Starr & 0. § 43, p. 1921) grants full authority to lease the railway in question. It is, however, said that the lessor remains liable because the statute provides no special exemption from liability in cases like these. In answer to this contention, we quote with approval the language of Judge Lurton in the case above referred to:
“Where obligations are imposed by charter or statute law upon a railroad company Tor the protection and advantage of the general public not having contract relation with it, it may very well be sa.id that a general authority to lease out its road, which contains no provision exempting it from such public obligations, will not absolve it from liability. So, if a railway be In such condition that it Is a nuisance when leased out, by reason of the absence of something necessary to Its safe operation, or the presence of something dangerous to its safe operation, and this nuisance bo continued by the lessee, both the lessor and lessee would be liable, — the one as having created, and the other as having continued, a nuisance. But to say that, after the lessor has, by authority of law, transferred the control and management of its road to another, he shall, unless specially exempted, remain liable for all the torts and contracts of the lessee, is to ignore the contract of lease and the legislative sanction under which, it was made. The state, on grounds of public policy, may well refuse its consent to the transfer; but, if it consent, then there is no public policy to authorize the courts to say that the responsibility for the future management and operation of the road has not been exclusively imposed upon the lessee, as the lawful substitute for the company owning the road.”
We are of opinion, therefore, that the court below should have granted the request to direct the jury to find a verdict in favor of the lessor, the Chicago & Northern Pacific Railroad Company, and that its final direction oí a verdict in favor of the defendants generally was correct so far as it applied to the Chicago & Northern Pacific Railroad Company, and in that respect must he affirmed.
The court below directed a verdict for all of the defendants, upon the ground that, as matter of law, the appellant was shown to have been guilty of contributory negligence, so that, notwithstanding the conceded negligence in the management of the train, there could be no recovery. In the federal courts, contributory negligence is an affirmative defense, the burden of which is cast upon the defendant, unless upon the plaintiff’s case such contributory negligence is clearly established; and it is to he passed upon by a jury unless, upon uncontradicted evidence, such negligence is clearly established. When, however, the proof is not convincing upon the question of contributory negligence, and the fact must he arrived at upon inferences concerning which reasonable men may honestly differ, the court will not invade the province of the jury and withdraw the case from their consideration. Railroad Co. v. Meyers, 18 [284]*284U. S. App. 569, 582, 10 C. C. A. 485, and 62 Fed. 367; Railroad Co. v. Austin, 24 U. S. App. 336, 12 C. C. A. 97, and 64 Fed. 211.
Applying these principles to the case in hand, we cannot say that the conduct of the plaintiff, was so clearly negligent that the court was authorized to withdraw the case from the consideration of the jury. The plaintiff was lawfully upon the premises in the discharge of his duties.
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■JENKINS, Circuit Judge,
after this statement of the'case, delivered the opinion of the court.
Whether the lessor railway company is relieved from liability for injuries resulting from the negligent operation of the road by the lessee is a question upon which courts may be said to be not wholly at agreement, although the supposed disagreement is more seeming than real. Unquestionably, a railroad company cannot without legislative authority lawfully lease its line of railway, and in such case cannot, by in fact so doing, relieve itself of any liability flowing from the manner of its operation; and this because the leasing was without authority of law, and the lessee stands in the relation of agent of the lessor, acting for the lessor, and binding the lessor by every act done in the management of the road. Where there is due authority of law for the leasing of a railway, the company cannot, by leasing its line, discharge itself of those responsibilities which are imposed upon it by the law of its incorporation, and cannot relieve itself from liability in the discharge of those positive duties which it owes to the public, and have been specially imposed by its charter. It is, however, a different question when the lessor company is sought to be made liable for the negligent management of the road which it was authorized to lease, and of which management it had no control. In such case we perceive no ground of public policy which should impose such liability upon the lessor company with respect to injuries resulting to individuals from the negligent operation of the railway. ’ The subject has been much discussed, and some of the cases are characterized by lack of discrimination between liability for duties absolutely imposed by law upon the lessor company and duties arising from ■ the manner of the operation of trains.
We think the distinction is well stated by tne supreme court of Kansas in Railway Co. v. Curl, 28 Kan. 622, in an opinion delivered by Judge Brewer, then of that court, now associate justice of the supreme court of the United States. It is there said, in response to a contention that, where the statute authorizes the lease by one railway company to another of its track, the lessor company is not responsible for injuries caused by the torts of the lessee company:
“To a certain extent this proposition is true. If the injury results from negligence in the handling of trains or in the omission of any statutory duty connected with the management of the road, matters in respect to which the lessor company could, in the nature of things, have no control, then the lessee company will alone he responsible; but, when the injury results from the omission of some duty which the lessor itself owes to the public in the first instance, — something connected with the building of the road-then we think the company assuming the franchise cannot divest itself of responsibility by leasing its track to some other company. Thus, for instance, in the case at bar, the defendant was charged with the duty of placing sufficient cattle guards before it either used this track which it constructed, or permitted any one else to use it; and it cannot divest itself of responsibility for injuries resulting from such omission by leasing its track to some other company. The injury resulted directly from its own wrong, and not from any mere negligence on the part of the St. Louis & San Francisco Railroad Company. It cannot relieve itself by contracting with some other party to discharge its statutory duty.”
[283]*283The whole subject is elaborately and ably reviewed by Judge Lurton, of the Sixth circuit, in the case of Arrowsmith v. Railroad Co., 57 Fed. 165. Substantially all the cases bearing upon the question are there assembled and carefully reviewed and distinguished. It would be useless to repeat here the history and analysis of the cases which have so satisfactorily been had in that case. We adopt fully that opinion upon the question.
The lease of the railway here in question was authorized by lav/. The statutes of Illinois f? Starr & 0. § 43, p. 1921) grants full authority to lease the railway in question. It is, however, said that the lessor remains liable because the statute provides no special exemption from liability in cases like these. In answer to this contention, we quote with approval the language of Judge Lurton in the case above referred to:
“Where obligations are imposed by charter or statute law upon a railroad company Tor the protection and advantage of the general public not having contract relation with it, it may very well be sa.id that a general authority to lease out its road, which contains no provision exempting it from such public obligations, will not absolve it from liability. So, if a railway be In such condition that it Is a nuisance when leased out, by reason of the absence of something necessary to Its safe operation, or the presence of something dangerous to its safe operation, and this nuisance bo continued by the lessee, both the lessor and lessee would be liable, — the one as having created, and the other as having continued, a nuisance. But to say that, after the lessor has, by authority of law, transferred the control and management of its road to another, he shall, unless specially exempted, remain liable for all the torts and contracts of the lessee, is to ignore the contract of lease and the legislative sanction under which, it was made. The state, on grounds of public policy, may well refuse its consent to the transfer; but, if it consent, then there is no public policy to authorize the courts to say that the responsibility for the future management and operation of the road has not been exclusively imposed upon the lessee, as the lawful substitute for the company owning the road.”
We are of opinion, therefore, that the court below should have granted the request to direct the jury to find a verdict in favor of the lessor, the Chicago & Northern Pacific Railroad Company, and that its final direction oí a verdict in favor of the defendants generally was correct so far as it applied to the Chicago & Northern Pacific Railroad Company, and in that respect must he affirmed.
The court below directed a verdict for all of the defendants, upon the ground that, as matter of law, the appellant was shown to have been guilty of contributory negligence, so that, notwithstanding the conceded negligence in the management of the train, there could be no recovery. In the federal courts, contributory negligence is an affirmative defense, the burden of which is cast upon the defendant, unless upon the plaintiff’s case such contributory negligence is clearly established; and it is to he passed upon by a jury unless, upon uncontradicted evidence, such negligence is clearly established. When, however, the proof is not convincing upon the question of contributory negligence, and the fact must he arrived at upon inferences concerning which reasonable men may honestly differ, the court will not invade the province of the jury and withdraw the case from their consideration. Railroad Co. v. Meyers, 18 [284]*284U. S. App. 569, 582, 10 C. C. A. 485, and 62 Fed. 367; Railroad Co. v. Austin, 24 U. S. App. 336, 12 C. C. A. 97, and 64 Fed. 211.
Applying these principles to the case in hand, we cannot say that the conduct of the plaintiff, was so clearly negligent that the court was authorized to withdraw the case from the consideration of the jury. The plaintiff was lawfully upon the premises in the discharge of his duties. He was not a trespasser, and had lawful right to be there, subject, of course, to the duty of exercising ordinary care with respect to his own safety. After instructing Roth with respect to the message, with which he charged him on his return, at which time he was looking to the west, and saw no train approaching, he turned to the east, and proceeded from 45 to 60 feet upon the ends of the ties of the track without again looking for a train. For part of this distance, he was obliged to go upon the ties, in order to pass the switch stand. It is said he should have kept a constant lookout to the west; that the duty of watching for a train was a continuing one, and cannot be put aside; and that, immediately upon passing the switch, he should have walked in the space between the two leads of tracks. It may not be denied that the dark and foggy character of the night, and the dangerous locality, imposed upon him great care; but can the court say that, as matter of law, it was contributory negligence to walk from 45 to 60 feet upon that track without looking behind him, and at what point can the court draw the legal line in that respect, on one side of which shall be care, and on the other negligence? If the plaintiff’s testimony be true, in the, discharge of his duty he had become acquainted with the ordinary usage of that track, and he knew that the regular freight had gone out some time before, and that no other train was to be expected before 10 o’clock that night. If we may believe his testimony, he did not know that the earlier train was composed of two sections, and he had no reason to expect any train upon that track at that time on that night. Under such circumstances, we are unable to say, as matter of law, that he was required to turn and look to the westward during every 10 or 20 seconds of time, and that failure so to do constituted negligence. That is a question properly within the province of a jury. And so it is, under the facts here developed, with respect to the question whether he should have walked in the space between the two tracks, and not upon the ties. In one view of his testimony, — and, in determining the question before us, we áre obliged to view the evidence in the light most favorable to the contention of the plaintiff, — he had only passed upon the ties beyond the switch some 15 or 20 feet. Oan the court say that, as matter of law, it was contributory negligence not to have left the ties within that distance? There was a train passing on the K. C. lead. The space of 8 feet between the two leads was narrowed some 2£ feet by the overhanging cars of that train. How can the court say, as matter of law, that it was contributory negligence not to walk nearer to that moving train than 51- feet, in view of the fact that the plaintiff had no reason to expect any train upon the W. C. [285]*285lead? We do nof design to assert the proi>ositioii of fact stated as veritable; truth. Huch is not the province of the court. _We say that the evidence of the plaintiff', if credited, tends to establish those facts; and upon those facts there are inferences to be drawn which it is not the duty of the court to indulge, but which lie peculiarly within the province of the jury. Upon the case made by the plaintiff, reasonable men might honestly and fairly differ upon the question whether he exercised, on that dark and foggy night, and under the circumstances surrounding him, that care which an ordinarily prudent man would exercise under like circumstances. Such being the case, the question was one peculiarly within the province of a jury to determine.
We are of opinion that the court below erred in withdrawing the case- from the jury. The judgment will bo affirmed as to the Chicago & Northern Pacific Railroad Company. In all other respects it will be reversed, and the case remanded, witli directions to award a new trial as against the other defendants to the record.