THAYER, Circuit Judge.
This is an action for personal injuries which resulted in the death of R. E. Kilpatrick, at Shawnee, in the Territory of Oklahoma, on February 13, 1897. Minnie Kilpatrick, the plaintiff below and the plaintiff in error here, who was the wife of the deceased, sues for herself and as next friend for her minor children, Ethel Kilpatrick and Robbie Kilpatrick, basing her right to sue on sections 435 and 436 of the Eaws of Oklahoma Territory, which provide, in substance, that, when the death of a person is caused by the wrongful act or omission of another the personal representatives of the deceased may maintain an action therefor against the wrongdoer if the deceased might have maintained an action had he lived; and that such action may also be brought by the widow, or, where there is no widow, by the next of kin, provided no personal representative has been appointed. It was charged in the complaint [12]*12that R. E. Kilpatrick was in the employ of the Choctaw, Oklahoma & Gulf Railroad Company at the time of his death, acting in the capacity of a brakeman on one of its freight trains; that at the time and place of his death it became necessary for the deceased to go between two freight cars standing on the defendant’s track, and to uncouple them while the train to which they were attached was moving slowly; that, by reason of the negligence of the defendant company, the coupling pins, coupling links, coupling chains, cranks, and means provided for coupling and uncoupling the two cars, had, through the defendant’s negligence, been permitted to become defective, broken, and out of repair, so that the cars could not be uncoupléd without going between the cars while they were in motion; that as he stepped in between the two cars for the purpose of uncoupling them, being at the time in the exercise of due care, his foot was caught and became wedged between what is known as the “guard rail” and the “main rail” at a point where the space between the main rail and the guard rail was only about two inches in width; and that, by reason of his foot being caught and so held, he was run over, and his leg. and body were so crushed and mangled that he died within half an hour thereafter. It was further alleged in the complaint that the defendant company had caused a guard rail at the place in question to be so laid, alongside of the main rail, that there existed at each end of the guard rail an open and unblocked space about four inches in width; that this space gradually decreased in width from each end of the guard rail for about six inches until it reached a point where the space between the main rail and guard rail was not over two inches wide; that the laying of the guard rail in this manner, without blocking it, rendered the track at that point unsafe and dangerous, as the defendant company knew, or by the exercise of ordinary care ought to have known, long prior to the accident in question; and that for years prior to the accident, as the-defendant company well knew, there was in use a plain and simple device for preventing the feet of railroad employés from becoming wedged between the two rails, such device being a block or wedge of wood placed between the guard rail and the main rail at each end of the guard rail, which wedge or block, when inserted, will effectually prevent a person’s foot from becoming wedged between the two rails; but that, notwithstanding such knowledge on the part of the defendant company, it negligently failed and omitted to make-use of such a device or insert such a block. While the complaint alleged that the coupling appliances on one of the cars in question were broken and out of repair, yet in the course of the trial it was stipulated by the plaintiff’s attorneys that the failure to block the frog in the defendant’s track was the proximate cause of the injury complained of, and that the plaintiff would rely for a recovery solely upon the failure of the defendant company to block the frog, and that he would not rely for a recovery upon the other ground stated in the complaint, that the coupling appliances were out of repair. At the conclusion of all of the testimony, the trial court directed the jury to return a verdict in favor of the defendant company, which was accordingly done, and the judgment subsequently rendered in. [13]*13favor of the defendant was affirmed on appeal by the United States Court of Appeals for the Indian Territory. 64 S. W. 560.
The case appears to have been decided, both at nisi prius and on appeal by the United States Court of Appeals in the Indian Territory, upon the ground that it was ruled by the decision of the Supreme Court in Southern Pacific Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530, 38 L. Ed. 391; and in that view we feel constrained to concur. In the Seley Case the Supreme Court, after describing the method which is sometimes employed of blocking the frogs of switches by filling the angle between the guard rail and main rail with a piece of wood or iron, referred to the fact that the evidence in that case plainly showed that on other great railroad systems in the West the unblocked frog was generally used, and that there was evidence tending to show that the unblocked frog is the better form, as the blocked frog is liable to become broken and cause the derailment of trains. It thereupon held that the following instruction contained a correct declaration of law applicable to the case, and should have been given:
“The jury are instructed that if they find from the evidence that the railroad companies used both the blocked and the unblocked frog, and that it is questionable which is the safest or most suitable for the business of the railroads, then the use of the unblocked frog is not negligence, and the jury are instructed not to impute the same as negligence to the defendant, and they should find for the defendant.”
The court then referred to several cases (especially Randall v. Baltimore & Ohio Railroad, 109 U. S. 478, 482, 3 Sup. Ct. 322, 27 L. Ed. 1003, and Washington & Georgetown Railroad v. McDade, 135 U. S. 554, 570, 10 Sup. Ct. 1044, 34 L. Ed. 235) in which it had been held substantially that neither railroad corporations nor employers generally are bound to supply “the best and safest or newest” of appliances, but are justified in using such appliances and devices as are in common use, and are considered ordinarily safe and reasonably well adapted to the purposes to which they are applied, and concluded, in view of such decisions and the evidence in the case showing that unblocked frogs were in use on many railroads throughout the country, that it was “plain that the defendant was entitled, not merely to the instruction” aforesaid, “but that, upon the whole evidence, the prayer for a peremptory instruction in the defendant’s favor ought to have been granted.” This decision, therefore, as we construe it, clearly decides that so long as many railroads of the country use the unblocked frogs, believing such frogs to be ordinarily safe, and less liable to get out of order and occasion derailments than blocked frogs, negligence cannot be imputed to a railroad company simply because it uses unblocked frogs.
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THAYER, Circuit Judge.
This is an action for personal injuries which resulted in the death of R. E. Kilpatrick, at Shawnee, in the Territory of Oklahoma, on February 13, 1897. Minnie Kilpatrick, the plaintiff below and the plaintiff in error here, who was the wife of the deceased, sues for herself and as next friend for her minor children, Ethel Kilpatrick and Robbie Kilpatrick, basing her right to sue on sections 435 and 436 of the Eaws of Oklahoma Territory, which provide, in substance, that, when the death of a person is caused by the wrongful act or omission of another the personal representatives of the deceased may maintain an action therefor against the wrongdoer if the deceased might have maintained an action had he lived; and that such action may also be brought by the widow, or, where there is no widow, by the next of kin, provided no personal representative has been appointed. It was charged in the complaint [12]*12that R. E. Kilpatrick was in the employ of the Choctaw, Oklahoma & Gulf Railroad Company at the time of his death, acting in the capacity of a brakeman on one of its freight trains; that at the time and place of his death it became necessary for the deceased to go between two freight cars standing on the defendant’s track, and to uncouple them while the train to which they were attached was moving slowly; that, by reason of the negligence of the defendant company, the coupling pins, coupling links, coupling chains, cranks, and means provided for coupling and uncoupling the two cars, had, through the defendant’s negligence, been permitted to become defective, broken, and out of repair, so that the cars could not be uncoupléd without going between the cars while they were in motion; that as he stepped in between the two cars for the purpose of uncoupling them, being at the time in the exercise of due care, his foot was caught and became wedged between what is known as the “guard rail” and the “main rail” at a point where the space between the main rail and the guard rail was only about two inches in width; and that, by reason of his foot being caught and so held, he was run over, and his leg. and body were so crushed and mangled that he died within half an hour thereafter. It was further alleged in the complaint that the defendant company had caused a guard rail at the place in question to be so laid, alongside of the main rail, that there existed at each end of the guard rail an open and unblocked space about four inches in width; that this space gradually decreased in width from each end of the guard rail for about six inches until it reached a point where the space between the main rail and guard rail was not over two inches wide; that the laying of the guard rail in this manner, without blocking it, rendered the track at that point unsafe and dangerous, as the defendant company knew, or by the exercise of ordinary care ought to have known, long prior to the accident in question; and that for years prior to the accident, as the-defendant company well knew, there was in use a plain and simple device for preventing the feet of railroad employés from becoming wedged between the two rails, such device being a block or wedge of wood placed between the guard rail and the main rail at each end of the guard rail, which wedge or block, when inserted, will effectually prevent a person’s foot from becoming wedged between the two rails; but that, notwithstanding such knowledge on the part of the defendant company, it negligently failed and omitted to make-use of such a device or insert such a block. While the complaint alleged that the coupling appliances on one of the cars in question were broken and out of repair, yet in the course of the trial it was stipulated by the plaintiff’s attorneys that the failure to block the frog in the defendant’s track was the proximate cause of the injury complained of, and that the plaintiff would rely for a recovery solely upon the failure of the defendant company to block the frog, and that he would not rely for a recovery upon the other ground stated in the complaint, that the coupling appliances were out of repair. At the conclusion of all of the testimony, the trial court directed the jury to return a verdict in favor of the defendant company, which was accordingly done, and the judgment subsequently rendered in. [13]*13favor of the defendant was affirmed on appeal by the United States Court of Appeals for the Indian Territory. 64 S. W. 560.
The case appears to have been decided, both at nisi prius and on appeal by the United States Court of Appeals in the Indian Territory, upon the ground that it was ruled by the decision of the Supreme Court in Southern Pacific Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530, 38 L. Ed. 391; and in that view we feel constrained to concur. In the Seley Case the Supreme Court, after describing the method which is sometimes employed of blocking the frogs of switches by filling the angle between the guard rail and main rail with a piece of wood or iron, referred to the fact that the evidence in that case plainly showed that on other great railroad systems in the West the unblocked frog was generally used, and that there was evidence tending to show that the unblocked frog is the better form, as the blocked frog is liable to become broken and cause the derailment of trains. It thereupon held that the following instruction contained a correct declaration of law applicable to the case, and should have been given:
“The jury are instructed that if they find from the evidence that the railroad companies used both the blocked and the unblocked frog, and that it is questionable which is the safest or most suitable for the business of the railroads, then the use of the unblocked frog is not negligence, and the jury are instructed not to impute the same as negligence to the defendant, and they should find for the defendant.”
The court then referred to several cases (especially Randall v. Baltimore & Ohio Railroad, 109 U. S. 478, 482, 3 Sup. Ct. 322, 27 L. Ed. 1003, and Washington & Georgetown Railroad v. McDade, 135 U. S. 554, 570, 10 Sup. Ct. 1044, 34 L. Ed. 235) in which it had been held substantially that neither railroad corporations nor employers generally are bound to supply “the best and safest or newest” of appliances, but are justified in using such appliances and devices as are in common use, and are considered ordinarily safe and reasonably well adapted to the purposes to which they are applied, and concluded, in view of such decisions and the evidence in the case showing that unblocked frogs were in use on many railroads throughout the country, that it was “plain that the defendant was entitled, not merely to the instruction” aforesaid, “but that, upon the whole evidence, the prayer for a peremptory instruction in the defendant’s favor ought to have been granted.” This decision, therefore, as we construe it, clearly decides that so long as many railroads of the country use the unblocked frogs, believing such frogs to be ordinarily safe, and less liable to get out of order and occasion derailments than blocked frogs, negligence cannot be imputed to a railroad company simply because it uses unblocked frogs. According to the doctrine so enunciated, it seems that railroad companies are at liberty to determine for themselves, in the light of their experience, which form of frog is preferable, so long as both forms are in common use, and that it is not competent for a jury to hold a railroad company guilty of negligence because it adopts one form of frog in preference to another.
Applying the doctrine enunciated in that case to the case in hand, the judgment below must be permitted to stand, since it is shown [14]*14by the testimony, without substantial contradiction, that only about 25 per cent, of the railroads in the United States have adopted the practice of blocking their frogs, while the remaining roads, believing it to be the better or safer practice, leave their frogs unblocked. Counsel for the plaintiffs in error urge with great force that the question whether an unblocked frog is a dangerous contrivance, and more liable' to occasion loss of life and limbs than blocked frogs, is in its nature and essence a question of fact to be determined by the testimony of railroad employés, who, in the discharge of their duties as trainmen, are daily brought in contact with both kinds of appliances, and who thus become familiar with the comparative risks which are encountered by .the use of each. They further urge that as this is a question of fact it is within the legitimate province of a jury to determine it, and also within the province of a jury to hold a railroad company accountable for a want of ordinary care amounting to culpable negligence if it fails to block its frogs, provided the triors of the fact are satisfied by the evidence that unblocked frogs are so far dangerous and liable to entrap trainmen that they ought not to be used. We feel constrained to hold, however, that this view has not met with the approval of the Supreme Court, but is expressly overruled in the case above cited, the rule enunciated being, as above stated, that so long as both kinds of frogs are in use on railroads, and many roads prefer those that are unblocked, and it is questionable which is the safest or most suitable appliance for the business of railroads, a jury cannot impute negligence to a company which uses one of these appliances in -preference to the other. It results from this authoritative statement of the law that the judgment below must be affirmed, and it is so ordered.