Perrin v. Union Pac. R. , 201 Utah 405 ( 1921 )

GIDEON, J.

The respondent, as administratrix of the estate of Arthur 0. Perrin, deceased, brought this action to recover damages for his death. The damages are sought for the benefit of herself as the widow, and one minor child, Florence W. Perrin.

At the time of the accident, appellant was engaged in interstate commerce, and deceased was in its'employ as a rear brakeman. Recovery is therefore sought under the federal Employers’ Liability Act (35 U. S. St. L. 65, c. 149; U. S. Comp. St. §§ 8657-8665). Two trials were had. The first resulted in a verdict in favor of appellant. Thereafter the district court granted a new trial. That ruling is assigned as error on this appeal. The record of the first trial is preserved in the bill of exceptions, and is therefore before 1 this court for review. Hirabelli v. Daniels, 44 Utah, 88, 138 Pac. 1172. The complaint charged negligence on the part of the appellant: (1) That' appellant, in violation of its duty, negligently and carelessly backed its train and the cars between which the deceased had gone' for the purpose of connecting the air hose, a duty imposed upon him by his employment, without giving timely or any warning of its intention to move the train; (2) that appellant, in violation of its duty, negligently and carelessly failed to keep the appliances of the cars, particularly the handhold of the angle cock of the air hose of the car where the deceased was working, in a state of repair, and permitting the same to become defective and insufficient. The answer denied negligence. As an affirmative defense defendant pleaded contributory negligence and assumption of risk.

The court, in its instructions upon the first trial, limited the consideration of the jury to one ground of negligence, namely, Did. appellant after deceased went between the cars, move the train without giving the deceased notice of its intention to do so, and, if so, did the same constitute negligence upon which respondent could recover? Two of the grounds claimed for a new trial were: (a) Errors in law occurring at the trial; (b) insufficiency of the evidence to justify the verdict. The district court, as indicated by an entry in the record, was of the opinion that it had erred in not submitting to the jury both grounds of negligence alleged in the complaint and in limiting the consideration of the jury to .one ground only.

Appellant contends that at the first trial no error was committed that justified the granting of a new trial. It is argued that the mere fact that the court may have committed errors of law, or that the verdict was not, in the judgment of the court, what it should have been under the evidence, .does not authorize granting a new trial; that there was testimony in the record from which the jury could reasonably conclude that the respondent had failed to establish her right to recover, and it was therefore error on the part of the district court to grant a new trial.

Reliance is had upon the opinion of this court in Hirabelli v. Daniels, supra, to support appellant’s contention. In the Hirabelli Case the district court granted a new trial for the reason that the jury had, in the judgment of the court, determined the damages in an amount less than the court thought the evidence warranted, and this court held that an abuse of discretion. Mr. Justice Straup, speaking for the court, said:

“We are indeed slow to interfere with, a ruling granting or refusing a new trial on questions relating to damages, hut a court on the measure of general damages cannot tie a jury to only pain suffered, and when they follow and obey that instruction, then set the verdict aside, not for a misdirection, hut on the ground that they disregard or misconceived the instructions and rendered a verdict which the court thinks does not adequately compensate the plaintiff for his general damages.”

In the present case the district court granted a new trial for the reason that it had limited the consideration of the jury to one ground of negligence. The complaint charged two acts of negligence, and there was testimony, in the judgment of the court, tending to establish both. The new trial was granted, not because the jury had disregarded or misconceived the instructions and rendered a verdict which the court did not think adequately compensated respondent, but rather for a “misdirection,” or a failure to instruct upon an issue presented by the pleadings. The court was of the opinion that such issue had some support in the testimony. However, as this court is of the opinion that there was no testimony at either trial tending to prove that the condition of the angle cock was the cause of or contributed to the injury, no opifiion is expressed as to whether granting a new trial would have been an abuse of discretion if there had been no other grounds authorizing or justifying such action. There are other reasons which, in our judgment, warranted the court in granting the motion.

At the first trial the plaintiff requested the following instruction,:

“You are instructed that in the absence of evidence there is a presumption that the deceased, Arthur C. Perrin, used due care in and about the work that he was engaged in. when he was killed; and that he did all that was reasonably required of him for his protection while so engaged.”

It is contended that the foregoing request is not a correct statement of law, and the refusal to give an erroneous instruction is never ground for granting a new trial, although the litigant may have been entitled to an instruction relating to tbe subject of the request. It is argued, that the last clause of the above instruction does not state the law, and it would have been error'to give the instruction as requested. ,Just in what way, the instruction is erroneous is not very clearly stated in counsel’s brief. The instruction is applicable only in the absence of evidence as to just how the accident happened. There was no eyewitness. It is only in such cases that litigants are entitled to this or a like instruction. There seems to be no difference between the" general instruction that the deceased “used due care in and about the work he was engaged in when he was killed,” and the additional elaúse, “and that he did all that was reasonably required 2 of Mm for his protection while so engaged.” The exercise of due care necessarily implies the doing of what is reasonably required. That clause, at most, is but a reiteration of the first part of the instruction. The court refused to give the instruction. We are of the opinion the plaintiff was entitled to this or some similar instruction. The rule of law stated is not found in any other instruction given.

Moreover, at_fche first trial the engineer testified as follows:

“Q. Now, at the time the train, stopped, the light at the rear end of the train was still visible, as I understood you a little while ago? A. Yes, sir.

“Q. The lantern light, did you afterwards see it disappear? A. yes, sir.

“Q. And when, with reference to the time you stopped the train? A. Why, the train was stopped when it disappeared.

“Q. The train was stopped when it disappeared? A. Yes, sir.

“Q. And when, with reference to that stoppage, did it disappear? A. Well, I don’t know. I didn’t pay- any attention. It disappeared right away.

“Q. Now, when you say the train was stopped do you mean the entire train was stopped, or that the engine was stopped and the car next to you? A. As far as I know, the whole train was stopped.”

That testimony was nowhere contradicted. After the train became stationary it could only move by some act of the engineer, either some movement of the engine or-by releasing the air on the brakes, thereby permitting the slack of the ears to run out. In either event the defendant could be charged with negligence by reason of the fact that the engineer knew the deceased had gone, between the cars. It was 3,4 the duty and privilege of the district court, in considering the motion for a new trial, to' determine whether the jury had given due weight to this uncontradicted testimony. If in the court’s judgment the jury had failed to give such weight to the testimony as it was entitled to receive, it was no abuse of discretion to grant a new trial. Rison v. Harris, 50 Okl. 764, 151 Pac. 584. Our statute relating to new trials is taken from the California Code. Consideration of the weight of evidence on motions for new trial is peculiarly within the province of the trial courts, as has frequently been held by the Supreme Court of that state. Sherman v. Mitchell, 46 Cal. 577; Bjorman v. Ft. Bragg Redwood Co., 92 Cal. 500, 28 Pac. 591; Garton v. Stern, 121 Cal. 347, 53 Pac. 904; In re Martin, 113 Cal. 479, 45 Pac. 813; Holtum v. Germania Life Ins. Co., 139 Cal. 645, 73 Pac. 591. To the same effect is the great weight of authority. 29 Cyc. 1011, note.

Appellate courts will not set aside an order granting a new trial unless there is an apparent abuse of discretion. Valiotis v. Utah-Apex M. Co., 55 Utah, 151, 184 Pac. 802; Hirabelli v. Daniels, supra; Van Dyke v. Ogden Sav. Bank, 48 Utah, 606, 161 Pac. 50; Salt Lake Inv. Co. v. Stoutt, 54 Utah, 100, 180 Pac. 182; Fitger v. Guthrie & Co., 89 Minn. 330, 5 94 N. W. 888; 20 R. C. L. 227. There was no abuse of discretion in granting a new trial. Therefore this assignment of error cannot prevail.

Respondent was permitted to file an amended complaint. It is alleged that appellant is engaged in interstate commerce as a common carrier by railroad between Ogden, Utah, and Omaha, Neb.; that the deceased was at the time of the accident, to wit, on September 22, 1916, employed by appellant in such commerce as brakeman upon one of its trains; that at said time the appellant was transporting over its road, at or near a station known as Red Desert, in the state of Wyoming, a certain car equipped with power train brakes, which, together with other cars likewise so equipped, made up a train of railway cars at that time operated by appellant in said commerce; that the appellant negligently, and contrary to the acts of Congress, permitted the said power train brakes upon said ear to become defective and inoperative, and that the same were not maintained in accordance with the provisions of said acts; that at the time of the accident, in the discharge of his duty as brakeman, the deceased went between the said defectively maintained car and the caboose of the train for the purpose of connecting up the air hose of said car with the air hose of the caboose on said train, and that, while the deceased was so engaged, the appellant so negligently and carelessly maintained and operated its train that, as a result thereof, the said deceased was seriously injured and died from the effect of such injury.

The answer to the amended complaint denied the acts of negligence. The appellant further alleged that the deceased assumed the risks and dangers- of the employment and that the injury was caused through his own negligence.

There is little, if any, dispute as to- the facts. The accident happened at or about the hour of 9:30 p. m. The deceased was employed as a rear brakeman on a freight train traveling east on the line of appellant’s railway in the state of Wyoming. The train arrived at Red Desert station about the hour indicated. The train was composed largely of coal cars. At a station west of Red Desert four or five additional cars, known as outfit ears, were placed in the train immediately ahead of the caboose. These cars were to be left at Red Desert. For that purpose a stop was made and the caboose disconnected from the train. The caboose was left standing on the main track. The outfit cars were placed on a siding. The remaining cars were pulled onto the main line and the engineer proceeded to back the train to couple onto the caboose. The deceased took his station at the east or front end of the caboose. The conductor, one Mr. Marti, was some 9 or 10 car lengths further east. The train was backing slowly toward the caboose, and when within about 20 or 30 feet of same the deceased, as part of his duty, gave a “slow down” or “stop” signal, indicating to the engineer that the rear of the train was approaching the caboose. Accordingly, the engineer applied the air brakes, gradually slacking the speed, and slowly pushed the cars back until the rear car came in contact with the caboose. The application of the air upon the brakes is controlled by the engineer operating a lever, and in that way the amount of force is controlled. A separate or independent set of brakes controls the engine, in no way connected with the air on the brakes upon the cars. The engineer testified that when the train came to a stop he immediately released the brakes on the cars and set the brakes on the engine. At the time of, or shortly after, giving the stop signal, and about the time the train became stationary, the light by which the deceased gave the signal to the engineer disappeared, apparently going between the cars. The conductor saw the light disappear. Both the engineer and conductor kept watching for a “proceed” signal. It was the duty of the deceased to give this signal as soon as he had connected the air hose of the caboose with the car immediately ahead and opened the angle cock. After a reasonable time, two or three minutes, and no one appealing, and no signal being given, the conductor walked to the rear of the train to ascertain the cause of the delay. Upon arrival there he found the deceased lying across the south or right rail of the track with the east or front wheel of the rear truck of the coal car, immediately ahead of the caboose, upon his body. The deceased was unable to speak and died a few minutes later. The conductor immediately gave the engineer a “back up” signal so as to remove the wheels of the truck from the body of the deceased. Upon the train moving, the conductor opened the angle cock between the caboose and the ear ahead. The effect of opening the angle cock was to apply the air on the brakes, and that in turn stopped the train instantly. The conductor found the air hose between the caboose and the car ahead connected but the angle cock was not open. The lantern which the deceased had at the time he gave the signal to slow down was found standing upright near the center of the track, still burning, some three or four feet east of the body of deceased. The distance from the rear of the car to the front wheel of the rear truck is 12 or 15 feet.

There is much testimony as to what effect releasing the brakes would have upon letting out what is designated the “slack” of the train. On each drawbar connecting the couplings with the body of the car is a spring which compresses and recoils, controlled by the movement of the train. In backing the train, where the engine pushes against the cars, this “slack” is taken in, or'the cars become bunched, and remain that way while the train is moving backwards, or while stationary if the brakes are set. The testimony is that there could be as much as 6 inches slack in each car. There were approximately 33 cars in this train, making it possible for the train to move 15 feet in letting out the slack. Necessarily, that would be controlled by the extent the cars had become bunched in the backward movement.

After the accident the train was moved forward and set out on a side track where it remained until some time after midnight. A special crew came from Rawlins, Wyo. and the train was taken to that place, arriving there about 7 o’clock on the following morning. At that time it -became the duty of the brakeman who accompanied the train from Red Desert to disconnect the caboose from the car immediately ahead. He testified that he found the angle cock of the air hose difficult to operate, to such an extent that it was necessary in cutting- off the air to strike the handle which controlled the valve with a hammer or brake rod.

At the close of the testimony appellant moved for a directed verdict upon the following grounds: (a) That there was no proof of any act of negligence alleged in the complaint, or otherwise; (b) assuming the angle cock was out of repair, it was not shown that said defect was the proximate cause of the injury; (c) whatever condition existed which caused the injury was a condition known to the deceased, the dangers of which he assumed; (d) assuming that the defective condition of the angle cock was the proximate cause of the death, there is ryo proof that appellant knew, or, by the exercise of ordinary care could have known, of such condition. The court denied the motion. The refusal of the court' to grant the motion, and its refusal to give a peremptory instruction to find a verdict for defendant, constitute tbe principal errors relied on for a reversal.

There was no direct evidence as to just how the accident happened. It was the duty of the deceased to go between the cars, after coupling was made and the train became stationary, to connect the air hose and open the angle cock between the train'and the caboose. Under the facts disclosed by this record, the respondent was entitled to the presumption that the deceased was, at the time of the accident, in 6, 7 the exercise of ordinary care. Lewis v. Rio Grande Western Ry. Co., 40 Utah, 483, 123 Pac. 97. That presumption alone would entitle the respondent to have the question of contributory negligence submitted to the jury if there is evidence in the record tending to prove negligence on the part of the appellant.

The testimony, considered in connection with the physical conditions found at the place at the time of the injury, establishes conclusively that the accident resulted from one of four conditions or state of facts: (1) Either the deceased went between the cars while the train was still in motion, connected the air hose while the train was still moving, set the lantern down in an upright position, and was then knocked over or tripped and fell while the train was still moving; or (2) the deceased went between the cars while the train was still moving, made the connection of the air hose, was either knocked over or tripped, and in falling the lantern was in some way knocked from his grasp and fell to the ground in an upright position near the center of the track; or (3) deceased went between the cars while the train was still in motion, succeeded in making the coupling of the air hose, set the lantern down at the time the train became stationary, and left it in an upright position for the purpose of opening the angle cock, and the train afterwards moved and deceased was knocked under the wheels, resulting in death; or (4) the deceased went between the cars after the train became stationary, placed his lantern on the ground either before' or after making the coupling of the air hose, and the train then moved and the injury resulted. If either the third or fourth state of facts existed, then negligence is shown on the part of defendant. If the first or second state of facts is as reasonable or probable under all the circumstances, and conditions surrounding the accident, then it is the duty of the court to hold that there is an absence of proof of negligence in the record, or any fact upon which negligence can be inferred.

This court, in harmony with the weight of authority, is committed to the rule that—

“If the probabilities are equally balanced that the accident was produced by a cause for which the defendant is responsible or by one for which he is not, the plaintiff must fail.” Tremelling v. Sou. Pac. co., 51 Utah, 189, 170 Pac. 83.

To hold that the first or second state of facts is as reasonable or probable, under the conditions and circumstances disclosed by the record, as the third or fourth, 8 is to run counter to the physical facts described by the witnesses, and in addition to that it ignores the presumption, to which the respondent is entitled, that the deceased was in the exercise of ordinary care in the performance of his duty at the time of the accident. The location of the lantern, the fact that the lantern was standing upright and was still burning, the position of the body, if not conclusive proof, is, at least, strongly suggestive and argumentative that the probabilities are that deceased .went between the cars after the train became stationary. The same state of facts, in our judgment, meet the argument of appellant that there is nothing in the record to show that the train moved after it became stationary, and subsequent to coming in contact with and being coupled to the caboose. It is true the conductor testified he did not observe any movement of the tr-ain. That testimony was at most but negative. Had it been positive, the jury might have disregarded it, especially if found to be contrary to what the physical facts tended to prove.

The respondent relied upon, and had a right to rely upon, the physical facts to show that the appellant was negligent as charged in the complaint. In Dodge v. Toth, 9 95 Conn. 75, 110 Atl. 454, the Connecticut Supreme Court of Errors, in discussing the evidence in a damage case, says:

“This witness named Barter, was one of the occupants of the automobile. His testimony was interpreted by the court, and perhaps correctly, as showing that Dodge was walking on his left-hand side of the road. With this interpretation in mind, the court said that the plaintiff offered no evidence in support of her allegation that the deceased was walking on his right-hand side of the highway, and, furthermore, that if the jury disbelieved Barber, as they were privileged to do, the result would be that the case would be barren of evidence tending to show due care on the part of Dodge. Underlying this statement of reasons is a serious disregard of the existence or importance of the physical facts in evidence attending the accident which the plaintiff relied upon and had the right to rely upon to show that Dodge was without fault.”

It is, in our judgment, idle to argue that there is no proof that the train moved after deceased went between the cars. It is likewise idle to contend that the train did not move after deceased had coupled the air hose. The location of the lantern and the position of the body of deceased both conclusively prove the contrary. The duty of the deceased required him to go between the cars, when they became stationary, to connect the air hose and open the angle cock. Going . between the cars while the train was in motion was not 10 in the exercise of reasonable care in the performance .of his duty. The deceased did go between the cars and did connect the air hose. The proof shows that in order to do that it was necessary for him to bring the two ends of the air hose together; that the air hose on the coal car was on the right-hand side of the coupling on that car, and the air hose on the caboose was on the left-hand side of the coupling on that car. It was therefore necessary for deceased to reach over or under the coupling in order to bring the ends of the air hose on the two cars together. It may be that can be accomplished by an expert railroad man while the train is in motion, but it hardly seems probable, and it would be in disregard of reasonable care to do so. In any event, to justify refusing to submit the question of negligence on that issue to a jury, the court must hold, as matter of law, that it was just as reasonable and probable that the deceased placed bis lantern upon the ground while the train was in motion, or that it fell from his hands in an upright position while the train was moving, as it is that he placed the lantern upon the ground at a time when the train was standing still. It was the duty of the deceased, after connecting the air hose and opening the angle cock, to transmit a signal, by way of waving or other movement of the lantern, indicating to the engineer and conductor that the train was ready to go forward. Notwithstanding that duty, and the fact that it was to be accomplished by waving the lantern, it is argued that the deceased may have placed his lantern upon the ground while the train was still moving. To assume that the deceased did or may have done that would be to assume that his conduct was contrary to that of a reasonable man placed in such circumstances.

The engineer stopped the train by the application of the air brakes. It should be remembered that so long as the air on the brakes was not released the train could not move. Therefore, if the train moved after becoming stationary, it could only do so by one of two ways, either by the engineer releasing the brakes on the train and permitting the slack to run out, or by some movement of the engine. It is in the testimony that the train did stop. The air on the train was not released until after the train came to a full stop. The engineer testified to that fact. The engineer also received the stop or slow down signal. It is not clear from his testimony on the second trial whether he received the signal from the conductor as relayed to him, or whether he saw the signal as given by the deceased, but that he received the signal and immediately applied the air is without dispute. The engineer, as an experienced railroad man, knew that when the train stopped it was the duty of the deceased to go between the cars and connect the air hose and open the angle cock. When that was accomplished it was his duty to. give the signal indicating that the train was ready to proceed. The conductor testified that at about the time the train became stationary the lantern light disappeared, apparently going between the cars. It must be held, therefore, that not only tbe conductor, by reason of actually seeing tbe lantern disappear, but tbe engineer, by reason of bis expert knowledge of railroading, is charged with knowledge of tbe fact that tbe deceased was between tbe cars in tbe discharge of bis duty. Any act which would permit tbe train to move while deceased was in that position would be an act of negligence on tbe part of tbe defendant.

It is strenuously argued on behalf of appellant, both in the original brief and in tbe brief on rehearing, that there is no proof of negligence on tbe part of appellant; that negligence is never inferred or presumed; that until there is some testimony showing negligence tbe court has no right to indulge in presumption or inferences, and in doing so is departing from tbe rule that has been frequently recognized by this court. Numerous cases are cited from this and other courts bolding generally that it is incumbent upon tbe plaintiff in a damage case to prove negligence, and that 11 negligence can never be presumed or inferred. We have no intention of departing from that rule, but it is likewise true that positive or direct proof of negligence is not required, but tbe same may be inferred from tbe circumstances surrounding tbe accident.

The Supreme Court of Oregon, in Geldard v. Marshall, 43 Or. 438, 73 Pac. 330, says:

“In an action by a servant against his master to recover damages for an injury, the burden of proof is on the plaintiff to show the negligence charged, and the mere happening of the accident is ordinarily not sufficient. * * * But it is not necessary that there should be positive proof of negligence. It, like any other fact, may be inferred from the circumstances. There may be, and are, cases in which the master’s negligence is clearly inferable, although there is no positive proof thereof. The rule is that if two inferences may be legitimately drawn from the facts in evidence, one favorable and the other unfavorable to the defendant, a question is presented which calls for the opinion of the jury.”

That rule of law received the approval of this court in Dearden v. Railroad, 33 Utah, 147, 93 Pac. 271. The court, at page 152 of 33 Utah, 93 Pac. 272, says:

“However, it is not essential, before a fact is made evident, that its existence be established by positive or conclusive evidence, especially when it pertains, as here, only to the identity of a thing. If such were the case, the rule of evidence permitting the drawing of inferences and the deducting of facts from other facts is rendered useless.”

The same rule of law again received the approval of this court in the recent case of Johnson v. Silver King Con. M. Co., 54 Utah, at page 34, 179 Pac. 61. See, also, Calvin v. Brown & McCabe, 53 Or. 598, 101 Pac. 671. The court, therefore, did not err in denying the motion for directed verdict or'in refusing to give the peremptory instruction to return a verdict for defendant.

A majority of this court are of the opinion that no testimony is found in the record that the defective condition of the angle cock, if it was defective, contributed to or caused the injury. If it be conceded that there is testimony tending to show that the angle cock was in a defective condition, it is not shown that the deceased attempted to open the same, or that its condition in any way contributed to or caused the accident.

No request was made to the district court to withdraw that issue from the consideration of the jury. No instruction was asked advising the jury that there was no evidence in the record upon which a judgment on that issue could be supported. No assignment is found in the record complaining of such issue having been submitted. It is first suggested in the petition for rehearing. It is therefore argued on behalf of respondent that any error the district court may have made in submitting that issue to the jury is not 12 before this court for review. This court is not authorized, either by statutes or rules of the court, to review any ruling of the district court unless error is assigned designating or specifying the alleged error.

In Teakle v. Railroad, 32 Utah, at page 284, 90 Pac. 405, 10 L. R. A. (N. S.) 486, the court says:

“If the court erred in directing a verdict, such ruling ought to have been assigned, in order to authorize us to review it. The assignment of error is the foundation upon which rests the right of the appellate court to review the errors imputed to the trial court, and this court has repeatedly held that only such errors as are assigned will be reviewed, unless it is something which goes to the jurisdiction of the court.”

Again, in Andrews v. Free, 45 Utah, at page 508, 146 Pac. 556, it is said:

“If the defendants are right in their contention, then should the case have been withheld from the jury? Por the actionable negligence is predicated on an alleged failure of the defendants to furnish him a safe place to work. Whether a duty was or was not imposed on the defendants as a master to furnish a safe place to work was for the court. If, on the undisputed evidence, as is argued, no such duty was imposed, then should the case have been withheld? But to impute error to the court in such particular required a motion or request on that ground to so withhold the case. No such motion was interposed.”

See, also, Van Cott et al. v. Wall, 53 Utah, 282, 178 Pac. 42; Sargent v. Union Fuel Co., 37 Utah, 392, 108 Pac. 928; Smith v. Nelson, 23 Utah, 512, 65 Pac. 485.

The motion for a directed verdict is not based upon the theory that there was no evidence authorizing the submission of the defect to the jury. The error of the court, if error was committed in submitting the question of the defective angle cock to the jury for consideration, is not before this court for review.

Error is also assigned for certain statements made by counsel in arguing the case to the jury, to which statements appellant noted an exception. The court was not requested to withdraw the remarks or to instruct the 13 jury to disregard that part of the argument of counsel. Under the authority of Andrews v. Free, supra, any error, if error was committed in that regard, is not reviewable by this court.

As stated, the defendant was engaged in interstate commerce, and this action is brought under the congressional act known as the federal Employers’ Liability Act. By the third section of that act (U. S. Comp. St. § 8659) the fact that the deceased may have been guilty of contributory negligence would not bar recovery, but such fact could be 14 considered by the jury in reducing the amount which the respondent would otherwise be entitled to recover. The court, in its instructions, advised tbe jury that such is the law applicable to this case.

It is also contended that the deceased assumed the risk of the dangers incident to his employment. If it be conceded that the defendant has presented by its pleadings the issue of assumption of risk, it is a sufficient answer to that contention to say that, if the injury resulted from the negligence of the defendant, the deceased did not assume 15 the risk of such negligence. The injury in this case did not result from any usual and ordinary danger incident to the business or occupation in which the deceased was engaged. It resulted either from the neglect of the defendant in the operation of its train or from the contributory negligence of the deceased.

Some complaint is made of the failure of the court to give instructions requested by appellant and of certain instructions given. A careful examination of the instructions convinces us that the court fully and fairly instructed the jury upon the issues presented by the pleadings, and upon which there was testimony for-the consideration of the jury.

The former opinion of this court is recalled. This opinion will be published as the opinion of the court.

We find no reversible error in the record. The judgment is affirmed. Respondent to recover costs against appellant.

WEBER and THURMAN, JJ., concur.