OPINION
By ROSS, J.
Appeal on questions of law from the court of common pj,eas of Hamilton county.
The action was brought by the .executrix of an employee of the defendant Railway company. As executrix, she seeks to recover compensation for the loss occasioned by. the negligent killing of her husband by the defendant; such compensation being proportionate to the pecuniary loss of his legal dependents.
The suit is predicated upon, the provisions of The Federal Employers’ Liability Act (Title 45; ections 51-59, U. S. Code) and also the nrovisions of- the Automatic Coupler Section of the Federal Safety Appliance Act (Title 45, section 2, U. S. Code).
[658]*658In the petition it is alleged that the decedent, Healy, while engaged as an employee of the defendant and in the course of his employment as an “air inspector” of ' railroad cars, employed in interstate commerce by the defendant, and while repairing and adjusting the couplers (.not air couplers) of two freight cars, was injured by the negligence of the defendant’s employees in the following particulars:
(1) The defendant was operating freight cars not equipped with couplers which would couple by impact, in violation of the Automatic Coupler Section of the Federal Act, supra.
(2) In failing to place a blue flag at the south end of a “cut of cars”, the decedent having employed himself in work upon a coupler of a freight car located on the same track some forty feet north of the north end of such cut of cars.
(3) The employees of the defendant backed such “cut of cars” northwardly, when the custom of the yards entitled the decedent to believe that the movement would be from the north instead of from the south. That is, that the north “cut of cars” would be backed southwardly into the south “cut of cars”, rather than the south “cut of cars” backed or pushed northwardly into the north cut of cars. There were 49 cars in the south “cut of cars”. The decedent was working on the 50th car, which was the south car in the north “cut of cars”, consisting of 27 cars. Both south and north “cuts of cars” were located, on track 17.
(4) The defendant’s employees used a “road engine” instead of a “switch engine” in backing the south “cut of cars” northwardly on track 17.'
(5) The • defendant’s employees failed to warn the decedent, by use of whistle, of the proposed movement of the south “cut” of 49 cars northwardly, and he was caught between the 49th car at the north end of the south “cut of cars” and the 50th car the south car of the north cut of 27 cars, and injured, so that he died in a few hours thereafter.
(6) The defendant -failed to cause one of its employees 10 take a position upon the north end of the north (49th) car, when moving the south “cut of cars” northwardly.
(7) The defendant’s employee, who caused the south “cut of cars” to be moved northwardly, railed to await a signal from the decedent Healy that he was ready to have the south “cut of cars” moved northwardly.
It is the contention of the plaintiff that the evidence produced at the trial, which extended over one week, sustains all ■ of the assignments of negligence. It is the contention of the defendant that the evidence sustains no one of such assignments and develops that the decedent employee was guilty of negligence, which was the direct proximate and sole cause of the injuries which caused his death. The defense of contributory negligence was not pleaded by the defendant, but was put in issue by the evidence.
There are certain facts about which there is no dispute.
The yards of the defendant railway extend in a general north and south direction. The main line is on the extreme west. The switch tracks also run in a general northerly direction, extending north from a track on their southern extremity, in which they terminate, which terminal track runs in a general northwesterly iirection into the main line. The switch tracks are numbered from west to east. Thus, No. 16 is west of No. 17.
On the day upon which Healy was injured, at about 1:25 P. M., the employees of the defendant were engaged in making up a freight train consisting of 95 freight cars a caboose and a road engine. Forty-nine of these cars were located on the south end of track No. 17, but extended to the south end of such track, so that they did not “clear” the track into which track No. 17 led.
Immediately north of this cut of 49 cars, on track No. 17, there was a space, about a car length — forty feet. — and then ■ a cut of. 27 cars on the north portion of track No. 17. Another cut of 19 cars -was to be moved on track No. 16, [659]*659northwardly and then backed . southwardly into the north 'end of the cut of 27 cars-.
It is the contention of , the plaintiff that the decedent Heaiy had just reason to believe that the movement would then continue southwardly backing the.two cuts thus joined into the cut of 49 cars on the south end of track No. 17 — and that he was taken by surprise when the south cut was pushed northwardly oy a road engine instead of a switch engine, no warning-signal being given of this movement. .
Three men, two besides Heaiy, were engaged as inspectors in making up the train. They all left a shanty near track 17 at about the same time. Each was; assigned to a particular section of the train. Later comment upon the evidence will indicate what the evidence shows were their duties. The men separated and started to their several stations. Heaiy, when he reached • the 50th car, the south car of the north cut, became interested in something about the mam coupler — the device which holds the cars together. While he was engaged in this undertaking — later reference to the record will indicate what the evidence was as to this — a road engine was caused to move northwardly until-.it struck the south car of the south cut and then pushed the cut northwardly on track 17 over the interval of forty feet 'between car' 49 and 50. Heaiy, apparently, was unaware of this movement behind him and was caught between these two cars and was mortally -injured. No signal was given as a warning of this movement and Heaiy was not .told that it was • intended or contemplated. No flag was placed at the south 'end of the south -‘cut of cars” and no employee was placed upon the north end of the south “cut of cars” as it was pushed northwarcdy. Heaiy was not asked whether he was ready for the movement, of the cars and gave no indication that he was -ready.
The ’ decedent was survived by his widow and five children, only one of whom was a minor at the date of the filing- of the petition. As. the triol was had just one year lacking two days after the filing of the petition, it may be. presumed that at the time of trial all the decedent’s children-.were adults.
The death of the decedent was directly due to the injuries received when, crushed between the cars.
The Supreme Court of Ohio has definitely stated the rules governing an action brought under the provisions of the Federal Employers' Liability Act in Bevan v N. Y. C. & St. L. Rd. Co., 132 Oh St 245. As a guide to the application.; of the law to the evidence which we are now about to consider, it may be helpful here to quote from the syllabus of the "levan case. The 1st, 2nd, 4th, 5th,- and 6th paragraphs of the syllabus are:
• “1. In an action -properly- brought under the Federal Employers’ Liability Act (Title 45, Sections 51 to 59, U. S.
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OPINION
By ROSS, J.
Appeal on questions of law from the court of common pj,eas of Hamilton county.
The action was brought by the .executrix of an employee of the defendant Railway company. As executrix, she seeks to recover compensation for the loss occasioned by. the negligent killing of her husband by the defendant; such compensation being proportionate to the pecuniary loss of his legal dependents.
The suit is predicated upon, the provisions of The Federal Employers’ Liability Act (Title 45; ections 51-59, U. S. Code) and also the nrovisions of- the Automatic Coupler Section of the Federal Safety Appliance Act (Title 45, section 2, U. S. Code).
[658]*658In the petition it is alleged that the decedent, Healy, while engaged as an employee of the defendant and in the course of his employment as an “air inspector” of ' railroad cars, employed in interstate commerce by the defendant, and while repairing and adjusting the couplers (.not air couplers) of two freight cars, was injured by the negligence of the defendant’s employees in the following particulars:
(1) The defendant was operating freight cars not equipped with couplers which would couple by impact, in violation of the Automatic Coupler Section of the Federal Act, supra.
(2) In failing to place a blue flag at the south end of a “cut of cars”, the decedent having employed himself in work upon a coupler of a freight car located on the same track some forty feet north of the north end of such cut of cars.
(3) The employees of the defendant backed such “cut of cars” northwardly, when the custom of the yards entitled the decedent to believe that the movement would be from the north instead of from the south. That is, that the north “cut of cars” would be backed southwardly into the south “cut of cars”, rather than the south “cut of cars” backed or pushed northwardly into the north cut of cars. There were 49 cars in the south “cut of cars”. The decedent was working on the 50th car, which was the south car in the north “cut of cars”, consisting of 27 cars. Both south and north “cuts of cars” were located, on track 17.
(4) The defendant’s employees used a “road engine” instead of a “switch engine” in backing the south “cut of cars” northwardly on track 17.'
(5) The • defendant’s employees failed to warn the decedent, by use of whistle, of the proposed movement of the south “cut” of 49 cars northwardly, and he was caught between the 49th car at the north end of the south “cut of cars” and the 50th car the south car of the north cut of 27 cars, and injured, so that he died in a few hours thereafter.
(6) The defendant -failed to cause one of its employees 10 take a position upon the north end of the north (49th) car, when moving the south “cut of cars” northwardly.
(7) The defendant’s employee, who caused the south “cut of cars” to be moved northwardly, railed to await a signal from the decedent Healy that he was ready to have the south “cut of cars” moved northwardly.
It is the contention of the plaintiff that the evidence produced at the trial, which extended over one week, sustains all ■ of the assignments of negligence. It is the contention of the defendant that the evidence sustains no one of such assignments and develops that the decedent employee was guilty of negligence, which was the direct proximate and sole cause of the injuries which caused his death. The defense of contributory negligence was not pleaded by the defendant, but was put in issue by the evidence.
There are certain facts about which there is no dispute.
The yards of the defendant railway extend in a general north and south direction. The main line is on the extreme west. The switch tracks also run in a general northerly direction, extending north from a track on their southern extremity, in which they terminate, which terminal track runs in a general northwesterly iirection into the main line. The switch tracks are numbered from west to east. Thus, No. 16 is west of No. 17.
On the day upon which Healy was injured, at about 1:25 P. M., the employees of the defendant were engaged in making up a freight train consisting of 95 freight cars a caboose and a road engine. Forty-nine of these cars were located on the south end of track No. 17, but extended to the south end of such track, so that they did not “clear” the track into which track No. 17 led.
Immediately north of this cut of 49 cars, on track No. 17, there was a space, about a car length — forty feet. — and then ■ a cut of. 27 cars on the north portion of track No. 17. Another cut of 19 cars -was to be moved on track No. 16, [659]*659northwardly and then backed . southwardly into the north 'end of the cut of 27 cars-.
It is the contention of , the plaintiff that the decedent Heaiy had just reason to believe that the movement would then continue southwardly backing the.two cuts thus joined into the cut of 49 cars on the south end of track No. 17 — and that he was taken by surprise when the south cut was pushed northwardly oy a road engine instead of a switch engine, no warning-signal being given of this movement. .
Three men, two besides Heaiy, were engaged as inspectors in making up the train. They all left a shanty near track 17 at about the same time. Each was; assigned to a particular section of the train. Later comment upon the evidence will indicate what the evidence shows were their duties. The men separated and started to their several stations. Heaiy, when he reached • the 50th car, the south car of the north cut, became interested in something about the mam coupler — the device which holds the cars together. While he was engaged in this undertaking — later reference to the record will indicate what the evidence was as to this — a road engine was caused to move northwardly until-.it struck the south car of the south cut and then pushed the cut northwardly on track 17 over the interval of forty feet 'between car' 49 and 50. Heaiy, apparently, was unaware of this movement behind him and was caught between these two cars and was mortally -injured. No signal was given as a warning of this movement and Heaiy was not .told that it was • intended or contemplated. No flag was placed at the south 'end of the south -‘cut of cars” and no employee was placed upon the north end of the south “cut of cars” as it was pushed northwarcdy. Heaiy was not asked whether he was ready for the movement, of the cars and gave no indication that he was -ready.
The ’ decedent was survived by his widow and five children, only one of whom was a minor at the date of the filing- of the petition. As. the triol was had just one year lacking two days after the filing of the petition, it may be. presumed that at the time of trial all the decedent’s children-.were adults.
The death of the decedent was directly due to the injuries received when, crushed between the cars.
The Supreme Court of Ohio has definitely stated the rules governing an action brought under the provisions of the Federal Employers' Liability Act in Bevan v N. Y. C. & St. L. Rd. Co., 132 Oh St 245. As a guide to the application.; of the law to the evidence which we are now about to consider, it may be helpful here to quote from the syllabus of the "levan case. The 1st, 2nd, 4th, 5th,- and 6th paragraphs of the syllabus are:
• “1. In an action -properly- brought under the Federal Employers’ Liability Act (Title 45, Sections 51 to 59, U. S. Code) by an employee against his employer the rights and obligations of the parties depend upon r,hat act and applicable principles of common law as interpreted by the federal courts.
-. “2. Such act permits recovery from a-n employer on the Basis of negligence only, and the kind and amount of evidence required to establish it should be determined and measured by the ■standards approved and adopted by the federal courts.
“4. Where at the close of the employee’s case in chief all of the evidence produced amounts at the most'to a surmise or suspicion of negligence on the part of the employer, the latter is entitled to a directed verdict upon motion therefor.
“5. The employer is not an insurer of the employee’s .safety,- but is under the continuing duty to exercise ordinary care to furnish the latter a reasonably safe place to work under the ■ circumstances.
“6. Where upon til the evidence reasonable minds can come to but one conclusion, it is the duty of the court, if. requested, to direct a verdict accordingly.”
Motion for an instructed verdict was seasonably interposed- m the instant [660]*660case. It is assigned as error that such motion was overruled. This assignment we consider with the claim that the verdict is against the weight of the evidence, and contrary to the evidence, and that the decedent was guilty of contributory negligence.
If any of the alleged specifications of negligence, hereinbefore noted, are found to be sustained by substantial' evidence, and such negligence was proved to be the proximate cause of the decedent’s injuries and death, or if his injuries and death were proximately caused by a defective coupler, the verdict of the jury is sustained.
Section 53 of Title 45, U. S. Code provides:
“In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar' a recovery, but’ the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such ■ employee who may be injured or killed shall'be held to have been guilty of- contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”
One of the chief claims of the defendant is that the decedent 'in many respects violated the “Rules of the Operating Department” of the defendant’s system, which ■ ules are in evidence. The plaintiff also relies upon these rules in many respects as sustaining her claim for relief. It will, therefore, be necessary, and undoubtedly’tend to .clarify the situation, to -refer to these rules now in order that it may appear whether the parties were justified in- their conduct.
Rule 55 in the Supplement provides '•that no employee is required to work under a car without protection signals. The workmen doing the work are required to protect themselves by putting a blue flag at the ends of the car or cars. No one is permitted to interfere with the flag or remove it except the workmen required to place it.
Rule 158, again provides that the workman seeking protection shall place the blue flag and be the only person permitted to remove .t. Rule 26 in the Main Book is to the same effect.
The rules further provide that all employees are governed by the rules found in the rule books ■ Rule 31 provides a whistle must be sounded at all places where required by rule or law. There is no rule or law requiring a whistle to be sounded in the railroad yards when cars are being switched upon switch tracks.
Rule 103, provides that when cars are being pushed by an engine “except when shifting or making rap trains in yards a trainman must take a conspicuous position on the front of the leading car.” (Emphasis ours).
Rice, a witness for plaintiff, testified that while the two cuts of cars remained upon track' 17. a cut of cars was pulled north on track 16, súch cut to be dropped in at the- north end of the cuts on track 17, that he, Rice, as switchman, rode the front end of the cut moving north on track 16 until he reached a point opposite the gap in the cuts on track 17, when he, for the purpose of performing his duty to couple the cars in the gap, drpped off upon the far or west side of his cut of cars, and that as a flat car passed in front of him, he saw Healy doing something about the coupler knuckle on the 50th. car on track 17, as the remaining box cars passed him he was unable to warn Healy that the south cut on track 17 was moving slowly north. When the last car of his cut had passed him on track 16, he saw Healv crushed between the cars on track 17. Healy had 'his left hand ’upon the cut-off lever and his right hand on the grab iron on the end sill on the east side of the car. He took Healy- to a shed. He made no ■statement to-him except to'tell, him to [661]*661go on. back and finish the work making up the train.
This witness further stated he did not know what Healy was- doing. He stated that he later made the coupling between the two cars, which made the gap in which Healy was injured, and that the coupling kunckle was closed, so that it would not couple automatically and it was necessary for him to step over the rail to adjust the coupling. He further stated it was the duty of the repairman to protect himself with a blue flag. Healy was working with two other men, Farrell ara Waite, as repairmen. When a blue hag was needed for protection, the ’•epairman would signal to the men at fither end of the cut to place flags. The crew of switch-men in which Rice worked consisted of himself and McDine. a “head man”, and Fricke, the foreman of the crew.
A road engine was used to push the south cut of cars northwardly and Rice stated that such an engine was frequently used for such purpose. From five to twelve switch engines were used in the yards, and it was very seldom that these engines blew whistles.
It is obvious from this evidence that the several cuts were to be pushed together, and when the full train of ninety-five cars- was made up that, as was later done in this case, a blue flag was placed at either end and the repairmen proceeded to make any necessary connections or repairs required while protected by flags. Healys work upon the south end of the 50th car was therefore premature and unlooked for by the other fellow employees engaged in working upon the train. His action was unwarranted unless he had taken the precaution to see that he was protected by a blue flag. There was ho reason or rule forbidding the movement of the 'cuts at the time Healy was-hurt.
Witness Rice stated at page 55 of the bill of exceptions:
“A. ■ They whistle after the blue flag is taken down and he is given a signal from the air man that we are through ’with the tráck — they--are through with the train, then he wnistles.”
Another witness stated, pages 112-113:
“Q. Now who did the coupling?
A. The engine on he rear end.
Q. The engine didn't do it. It was the crew that was with the engine?
A. The crew with ne switch engine.
Q. That was-Mr. Rice and his crew?
A. I don’t, know who it was, switch engine crew.
A. It was their business to get the train all hooked Together?
A. From the rear end.
Q. Well, whichever end. Now what was the next thing ;o do?
A. Gets the car knocker.
Q. You will have to tell these ladies and gentlemen what The ‘car knocker’ is.
A. Might call them car inspectors.
Q. Mr. Healy was a knocker?
A. Whatever you ’all him, car inspector, car knocker.
Q. Was Mr. Healy a car knocker— do you know?
A. I don’t know.
Q. Don’t you know it? Do you know any of those car Knockers?
A. Yes, the man cnat got killed, yes, the car inspector.
Q. Or car inspector?
A. Yes.
Q. You railroad men call him ‘car knocker’?
A. That is a shorter method.
Q. Like they call engineers a ‘hog man’?
A. ‘Hog head’.
Q. You are a hog head, he is a car knocker. You have some very funny names in railroad business?
A. Lots of funny Things. That isn’t what they called him.
Q. Now after you were coupled to your train and the train was all coupled together, then vou said the car knockers took the train, took charge of it?
A. They put the h ue flag and take charge of it and we cut the air in and when .everything is ready they give the signal to put the air on, and when they have, looked it oyer, "ive you the signal to release. Whe.n. they get ready [662]*662they come over and take-the blue flag up, and you are clear to go.
Q. When the blue flag is on you know men are apt to oe in and around that train?
A. That engine' was standing still.
Q. Why is it on- there?
A. Protection Of the men working on the train.
Q. Who got under it?
A. Under, on top or anywhere else.
' Q. Now how do /ou know when those men, who are supposed to get under the train or oii top of it, as you say, are through, in the clear, how do you know that?
A. When they are what?
Q. How do you know they are off of the train when they get under, under the blue flag, how do you know when they are through?
A. When they come there .and take the blue flag off the engine.
Q. The car knocker takes it off?
A. Yes, the car inspector.
Q. When the blue flag is gone that indicates what, to you?
A.-’ He tells me all right.”
Noonan, a witness for the plaintiff stated, record page 216:
“Q. And they don’t couple them up right away always, do they?
A. Well, no.
Q. They may and they may not. If it is handy they push them all down and couple them?
A. Sometimes they don’t.
' Q. Sometimes they miss coupling because both knuckles are closed and they can’t couple?
A. That is right.
Q. Then what happens?
A. They have to pull them'' apart, reset them and couple them up.
Q. Reset the knuckles,' don’t they?
A. Yes:
Q. How do they do that?
■ A. - Lift" them' apart, open them out and reset them.
Q. What is called the release lever, —lock pin lever; — pull vhat on the side, jerk it up, that releases it and if not then they try again?
A. Yes.
Q. Now, Mr. Healy had no. business doing any thing-of • that kind?
A. No.
Q. That- is none of his work at all?
A. -.The switchman.
Q. The switchman and yard crew are charged with the 30b of coupling up the.-.cars, aren’t they?
A.. Yes.”
Farrell, another witness for the plaintiff, stated the same thing, record, page 134:
“Q. Now it is no part of. your job to couple any cars, is it?
A. No, that is not our job, only the coupling of .the hose.
Q. Yes. What I meant by that, is it y,our business to see the cars hooked together with these couplers? You haven’t anything ro do with that?
A. -No, sir.
. Q. That is the switchman’s job who handles the car?
A.- Yes, sir.”
No work would be started until the train was made up. and a blue flag posted. This.same witness stated, record, page 141:
“A. So I could start when-.the engine came, and the flag was up, I could start to work.”
And, on pages 148 and 149 of the record, Farrell stated:
• “Q. Before the cars were coupled in on track 16, that is ircm the north, Ire-fore they came in, you started to couple hoses, didn’t you?
A. -No. No.”
“Q. Just one question None of you men were supposed to get in or under any of these cars of this train until you knew a blue flag was out?
A. No, sir, that was always our orders.”
• On page 220 of the record; witness Nooflan states:
[663]*663“Q. So as they went down the train, they were expecting a road engine to couple up and to couple in the air line, to turn on the air when it was reauy?
A. Yes.”
Phelps, the lead brakeman with the road engine, stated it was not customary to have a man on the rear oí a cut of cars when moving in the yards.
Reviewing the evidence as applied to the several charges oi negligence, there is nothing in the record to substantiate the claim that there was a defective coupler or that Heaiy’s duties required him to repair the same, if there had been, or that his injurires and death were caused by any defective coupling device. All reference, therefore, to the Safety Appliance Act was irrelevant, and the court should not have charged thereon.
The first charge of negligence, therefore, was not substantiated by any evidence.
It appears also that if Healy for any reason decided to work upon the cars in such a manner as to expose himself to injury, it was his duty to see before doing so, that the cut of cars was protected by a blue flag. He made no effort in this direction and no one knew that he intended tc work under or between the cars. This disposes of the second charge of negligence.
There is nothing in the record to indicate that the operation of the road engine ?n pushing the cars on track 17 northwardly,' so that the car extending into the lead track, or track which cut all of the -witch tracks toward the southwest, should be pushed clear of the lead track, was not a movement which could be made in the absénce of a blue flag. None of the employees had any reason to believe that the train which was in the' process of making could not be made- up from either direction. The evidence ’Shows that the carón track 37 extended over into- the "lead' or track connecting ■ the several switch tracks; that the road engine could not get oy this obstruction. The yardmaster directed the engineer to push the car back into track 17. If Healy, intending to work on the 50th car had notified one of his fellow employees at the south end of the cut of cars, by signal, to place a blue flag at the south end of the cars, he would have been fully protected. This, not having been done, the yardmaster was fully justified in moving the cars north on track 17. The third and fourth charges of negligence, therefore, fail.
It' appears also, conclusively, that whistle signals are not required by the rules to be given in switching operations, and the evidence indicates clearly that the employees were not accustomed to their use, and that if they were used, no one would gain any advantage by reason of the many movements constantly going on . while various trains were oeing made up. This disposes of the fifth charge of negligence.
No rule or custom required a man to be stationed at the end of a cut of cars while a switching operation was in progress, during the ■ making up of a train. There is no foundation, therefore, for the sixth charge of negligence.
Healy ^having neither given nor caused to be given any signal that he was exposing his person to danger, no one was required to await any signal that he was out of danger, and the seventh charge of negligence is unsubstantiated by the evidence.
It is the contention of the plaintiff that even if error occurred as to one of the specifications of negligence, that under the two issue rule, the error is harmless. This position is not sustained by the authorities. 133 Oh St 297, holds that the several specifications of negligence are included in' but one issue and that of negligence.-
While it is the conclusion of the writer of -this opinion that there is shown no evidence of -negligence -on the part of • the. defendant-, my associ[664]*664ates follow me only to the extent of agreeing to a reyersal of the judgment of the trial court. As there is full concurrence, in this, the judgment will be reversed on the weight of the evidence, and'' the case remanded for a new trial.