TOULMIN, District Judge.
Clifford H. Ritch, the plaintiff below, recovered a judgment against the defendant (plaintiff in error here) in an action for damages on account of personal injuries alleged to have been sustained on December 16, 1908, by reason of a collision in the railway company’s yards near Atlanta, Ga., caused by the negligence of the company’s agents and employes, and without fault on the part of plaintiff below, and alleging that said injuries could not have been avoided by exercise of ordinary care on his part.
The only question presented by the assignment of errors is whether or not the court below erred in refusing defendant’s motion to direct a verdict in its favor, made at the close of the evidence, on the grounds':
“(1) That the evidence fails to show the negligence alleged against this defendant.
‘‘(2) Thai; the evidence! shows negligence on the part of plaintiff and shows that plaintiff was himself at fault.”
Following are, in substance, the facts shown by the evidence: Ritch was engaged in performing the duties of switchman and flagman in the yards of the Southern Railway Company, near Atlanta, Ga., and on December 16, 1908, about 5 o’clock a. m., under such employment,’ was on the end sill of a coal car at the rear end oí a switching train of -27 cars and engine moving from the “South Yards” to the “Inman Yards”,of the company, a distance of five or six miles. Said switching train had stopped, on the main line of the railroad, at or near Howell’s Station, which was a mile or more from “Inman Yards,” in order to switch these cars to another track, and proceed thence to their destination. The train was so stopped from five to ten minutes; the several witnesses varying as to the exact time. The plaintiff stated that they stopped, but is uncertain as to the time. The conductor of Pitch’s train testified that they had to “bleed off the air” from these cars at such stop in order that the cars might roll in at Howell’s and that such process consumed from four to six'minutes, and the engineer of the train makes it front seven to ten minutes. It was soon after the cars had started to roll in order to make the switch, and while yet on the main line, that another train going in the same direction, called the “Hoodlum” or “Shuttle” train, collided with the rear end of the train on which Ritch was riding, he being on the end sill of the rear car, resulting in the injuries complained of. This Hoodlum train was one operated in the yards on a regular schedule posted by bulletin and known to the emplovés for the purpose of carrying* the latter from one part of the premises to another, as their work required. Its engineer [720]*720testified that Ritch’s train passed his at Simpson street about 5 o’clock, where his train was standing on the south main line awaiting orders to proceed on the north main line to Inman, the same track and direction that the switching train pursued; that he knew Ritch’s train would have to stop at Howell’s Station; that the Hoodlum train left Simpson street at 5:03 a. m., following Ritch’s train, and struck the latter about one mile farther on at about 5:10 a. m.; that it was a dark and foggy morning, and he did not see this train until within about two car lengths of it; that he was on the look-out approaching Howell’s, did not see a red light ahead of him, but did see a white light which he thought was on another track close by; that the track was straight at this point; and that his train had the right of track over the switching train.
The plaintiff, Ritch, testified that he first saw the Hoodlum train when it crossed the Atlanta, Birmingham & Atlantic crossing, he being half a mile ahead of it then, and that he knew it was coming along the track on which his train was, and that his train had to get out of the way; that he could see straight down the track, and that, “I let it run into me, and never knew it was there until it hit me. It was my duty to stay back there.” He stated that the rear, end of his train was 13 or 1-1 car lengths from Howell’s Station, and had not gotten to that station when hit. When asked, “Why weren’t you looking out for this train?” he answered:
“Wliy, the train was moving and on a perfectly straight track, and nothing in the way to keep the engineer from seeing my light, nothing in the world between us and his tender, and I was just so.sure he would stop, knew that he would stop. It was a stop for all trains.”
He testified that he also had to look out for signals from the front switchman, and had to couple the engine to his car at the proper time. He stated that he knew rule 99 of the company, which, together with rules 589 and 590, he stated was in force at the time. Said rules were introduced in evidence, and are as follows:
“99. When a train is stopped at an unusual point or is delayed at a regular stop over three minutes, or when it fails to make its schedule time, the flagman must immediately go back with danger signals to stop any train moving in the same direction. * * * ”
“589. (In regard to flagman) It is their especial duty to protect the rear of the train in strict accordance with the rules, and they must allow nothing to interfere with the prompt and efficient discharge of this duty.-
“590. They must obey the signal from the engineman prescribed by the rules, but must never wait for such signal or for orders from the conductor when their trains need protection.”
He further testified .that he was furnished with a red light and torpedoes at the time; that—
“I was supposed to take charge and protect the rear of that train, and was given that lantern to do it; but I was not supposed to flag a train there on that straight track. * * * We were not supposed to flag in the yard , limits on a straight track. In the yard limits, if my train is standing on a curve, I always step back around to give the man a showing. * * * The rule covers flagging, where he should use the flag when occupying the main line. It does not make any difference between a curve and a straight track. I made the difference myself.”
[721]*721It appeared that Ritch, in his application for employment, obligated himself to study the rules governing employés, and on the trial of this case showed familiarity with the rules 'applicable to the situation. The evidence showed that Ritch remained on the rear end of his train until hit, and did not comply with the rules as to going back, when his train was previously stopped on the main line and flagging any approaching train.
The general yardmaster of defendant company testified that there was a bulletin (which was in evidence) posted, through his order, in conspicuous places, calling the attention of employés to the schedule and operation of this Hoodlum train; that such train had rights by special instructions over all trains except first class, which were passenger trains, and was so regarded by employés.
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TOULMIN, District Judge.
Clifford H. Ritch, the plaintiff below, recovered a judgment against the defendant (plaintiff in error here) in an action for damages on account of personal injuries alleged to have been sustained on December 16, 1908, by reason of a collision in the railway company’s yards near Atlanta, Ga., caused by the negligence of the company’s agents and employes, and without fault on the part of plaintiff below, and alleging that said injuries could not have been avoided by exercise of ordinary care on his part.
The only question presented by the assignment of errors is whether or not the court below erred in refusing defendant’s motion to direct a verdict in its favor, made at the close of the evidence, on the grounds':
“(1) That the evidence fails to show the negligence alleged against this defendant.
‘‘(2) Thai; the evidence! shows negligence on the part of plaintiff and shows that plaintiff was himself at fault.”
Following are, in substance, the facts shown by the evidence: Ritch was engaged in performing the duties of switchman and flagman in the yards of the Southern Railway Company, near Atlanta, Ga., and on December 16, 1908, about 5 o’clock a. m., under such employment,’ was on the end sill of a coal car at the rear end oí a switching train of -27 cars and engine moving from the “South Yards” to the “Inman Yards”,of the company, a distance of five or six miles. Said switching train had stopped, on the main line of the railroad, at or near Howell’s Station, which was a mile or more from “Inman Yards,” in order to switch these cars to another track, and proceed thence to their destination. The train was so stopped from five to ten minutes; the several witnesses varying as to the exact time. The plaintiff stated that they stopped, but is uncertain as to the time. The conductor of Pitch’s train testified that they had to “bleed off the air” from these cars at such stop in order that the cars might roll in at Howell’s and that such process consumed from four to six'minutes, and the engineer of the train makes it front seven to ten minutes. It was soon after the cars had started to roll in order to make the switch, and while yet on the main line, that another train going in the same direction, called the “Hoodlum” or “Shuttle” train, collided with the rear end of the train on which Ritch was riding, he being on the end sill of the rear car, resulting in the injuries complained of. This Hoodlum train was one operated in the yards on a regular schedule posted by bulletin and known to the emplovés for the purpose of carrying* the latter from one part of the premises to another, as their work required. Its engineer [720]*720testified that Ritch’s train passed his at Simpson street about 5 o’clock, where his train was standing on the south main line awaiting orders to proceed on the north main line to Inman, the same track and direction that the switching train pursued; that he knew Ritch’s train would have to stop at Howell’s Station; that the Hoodlum train left Simpson street at 5:03 a. m., following Ritch’s train, and struck the latter about one mile farther on at about 5:10 a. m.; that it was a dark and foggy morning, and he did not see this train until within about two car lengths of it; that he was on the look-out approaching Howell’s, did not see a red light ahead of him, but did see a white light which he thought was on another track close by; that the track was straight at this point; and that his train had the right of track over the switching train.
The plaintiff, Ritch, testified that he first saw the Hoodlum train when it crossed the Atlanta, Birmingham & Atlantic crossing, he being half a mile ahead of it then, and that he knew it was coming along the track on which his train was, and that his train had to get out of the way; that he could see straight down the track, and that, “I let it run into me, and never knew it was there until it hit me. It was my duty to stay back there.” He stated that the rear, end of his train was 13 or 1-1 car lengths from Howell’s Station, and had not gotten to that station when hit. When asked, “Why weren’t you looking out for this train?” he answered:
“Wliy, the train was moving and on a perfectly straight track, and nothing in the way to keep the engineer from seeing my light, nothing in the world between us and his tender, and I was just so.sure he would stop, knew that he would stop. It was a stop for all trains.”
He testified that he also had to look out for signals from the front switchman, and had to couple the engine to his car at the proper time. He stated that he knew rule 99 of the company, which, together with rules 589 and 590, he stated was in force at the time. Said rules were introduced in evidence, and are as follows:
“99. When a train is stopped at an unusual point or is delayed at a regular stop over three minutes, or when it fails to make its schedule time, the flagman must immediately go back with danger signals to stop any train moving in the same direction. * * * ”
“589. (In regard to flagman) It is their especial duty to protect the rear of the train in strict accordance with the rules, and they must allow nothing to interfere with the prompt and efficient discharge of this duty.-
“590. They must obey the signal from the engineman prescribed by the rules, but must never wait for such signal or for orders from the conductor when their trains need protection.”
He further testified .that he was furnished with a red light and torpedoes at the time; that—
“I was supposed to take charge and protect the rear of that train, and was given that lantern to do it; but I was not supposed to flag a train there on that straight track. * * * We were not supposed to flag in the yard , limits on a straight track. In the yard limits, if my train is standing on a curve, I always step back around to give the man a showing. * * * The rule covers flagging, where he should use the flag when occupying the main line. It does not make any difference between a curve and a straight track. I made the difference myself.”
[721]*721It appeared that Ritch, in his application for employment, obligated himself to study the rules governing employés, and on the trial of this case showed familiarity with the rules 'applicable to the situation. The evidence showed that Ritch remained on the rear end of his train until hit, and did not comply with the rules as to going back, when his train was previously stopped on the main line and flagging any approaching train.
The general yardmaster of defendant company testified that there was a bulletin (which was in evidence) posted, through his order, in conspicuous places, calling the attention of employés to the schedule and operation of this Hoodlum train; that such train had rights by special instructions over all trains except first class, which were passenger trains, and was so regarded by employés. He stated that the fact that a train was operating in the yards caused no suspension of the rules regarding flagging, and that, although as a matter of practice it was not customary for a flagman to run back the number of telegraph poles mentioned in rule 99, still, by the rules and instructions, under the circumstances shown by this case, the flagman’s duty required him to take a red light and go back from the train some distance, and place a torpedo on the track, the whole object being to insure safety; that it was the duty of the flagman to protect the rear of his train, to do which he would take a red light, get down off the end of the train, and go back far enough to save it from collision.
The Code of Georgia of 1895 (vol. 2, § 2323) provides as follows (relative to railroad companies):
“If the person injured is himself an employé of the company, and the damage was caused by another employé, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar by the company to the recovery.”
The construction placed upon this provision by the Supreme Court of Georgia has established the rule in that state that, as a condition precedent to a recovery by the injured employé, he himself must be free from fault or negligence contributing “in any appreciable degree’’ to his injury; but that, if plaintiff’s negligence contributes in such degree to his injuries, the statute denies him a right of recovery. Georgia R. & Banking Co. v. Hicks, 95 Ga. 301, 22 S. E. 613; Southern Railway Co. v. Salmon, 132 Ga. 753, 65 S. E. 70; Little v. Southern Railway Co., 120 Ga. 347, 352, 353, 47 S. E. 953, 66 L. R. A. 509, 102 Am. St. Rep. 104.
In the case of Savannah, Florida & Western Ry. Co. v. Folks, 76 Ga. 527, the Supreme Court held:
“Where the undisputed evidence shows that an engineer of a railroad company violated its rules furnished for his government in respect to passing switches and turnouts, and in respect to the speed at which trains should be run, and the precautions to be used by engineers to prevent collisions, and that a collision was occasioned in whole, or at least in large part, from his negligence in this regard, and that such collision caused his death, a recovery by his widow against the railroad for his homicide was contrary to law .and unsupported by the evidence, whether or not there was also negligence on the part of the company’s employe on- the other train with which the collision occurred.”
[722]*722Also, in the case of Parker v. Georgia Pacific Railway Co., 83 Ga. 539, 10 S. E. 233, it was held that:
“Failure of a railroad employé to extricate himself from a perilous situation brought on by the negligence of a eoemployé. when he could do so by the use of ordinary care, will bar his right to recovery.”
In the case of Central Railroad Co. v. Lanier, 83 Ga. 592-593, 10 S. E. 280, the Supreme Court, defining the word “fault,” states as follows :
“It means that nothing should have been done that ought not to have been done by the party complaining, and that he should not have omitted anything that he ought to have done.”
Under the state of facts shown by the record, and the law applicable thereto, there seems to be no doubt but that the collision could have been avoided and Ritch’s injuries prevented, had he obeyed the rules prescribed by the company for his government under the conditions shown. It was his manifest duty to have gone back a sufficient distance and flagged the approaching train when his train had stopped on the main line for more than the time allowed by the rules, and thus prevent injury to the company’s employes and property, but, failing-in this, he could, by the exercise of ordinary care, have escaped from any perilous situation in which he might have been placed, and thus avoided his own injuries.
The rules ignored and violated in this case are not only essential for the protection of the railroad company’s property, but are also in the interest and for the protection of the traveling public. If they were better observed, we should hear of fewer rear-end collisions sq frequently resulting in loss of lives and personal injuries. The violation of such reasonable and important rules should neither be ignored nor approved by trial courts and juries. We think the court below should have given the general-charge in favor of the defendant railway company.
The judgment of the Circuit Court is reversed and the cause remanded, with instructions to grant a new trial.