153 FEDERAL REPORTER.

person; whereas, in truth and in fact, he was applying to purchase the land on speculation and under a prior agreement to convey the title to the defendants Williamson & Gesner as soon as he acquired it from the government. It is manifest, therefore, that the motive of the respective parties to the transactions in question was of prime importance in the inquiry, and it was to that point only that the court below allowed the evidence now under consideration, being careful, both in admitting it and in the instructions to the jury, to limit the evidence to the question of motive and to the defendants Williamson & Gesner. In so doing, we think the court below committed no error. In Wood v. United States, 16 Pet. 343, 10 L. Ed. 987, Mr. Justice Story, speaking for the Supreme Court, said:

"Where the intent of the party is matter in issue, it has always been deemed allowable as well in criminal as in civil cases to introduce evidence of other acts and doings of the party of a kindred character, in order to illustrate or establish his intent or motive in the particular act directly in judgment."

See, also, Moore v. U. S., 150 U. S. 57, 14 Sup. Ct. 26, 37 L. Ed. 996; Olson v. U. S., 133 Fed. 849, 67 C. C. A. 21; Wolfson v. U. S., 101 Fed. 434, 41 C. C. A. 422.

It is assigned for error that the trial court erred in its rulings in respect to the testimony of a number of witnesses for the government as to what their intention or understanding was when making their verified statement in respect to the land applied for, and when making their final proof in respect to the disposition of the land after they should acquire it from the government. All of such testimony was directly responsive to the allegations of the indictment, under which it was clearly competent for the prosecution to prove that the various entrymen swore falsely in respect to the material matters stated in their preliminary application for the land, and in their final proof, and that the real intention of all of the parties concerned was the obtaining of the government title to the land by means of such perjuries for the benefit of Williamson & Gesner. We see no error in the rulings of the trial court in the respects complained of; and, in respect to the charge of the court to the jury, a careful consideration of it satisfies us that it was eminently fair, and covered every aspect of the case in a very lucid manner. There was, therefore, no error

in refusing any requested instruction,

The facts of the case were, as a matter of course, for the determination of the jury.

The judgment is affirmed.

ST. LOUIS & S. F. R. CO. v. DEWEES.*

(Circuit Court of Appeals, Eighth Circuit. April 24, 1907.)

No. 2,360.

L TRIAL-QUESTION FOR COURT OR JURY-NEGLIGENCE-DIRECTION OF VERDICT. It is undoubtedly true that cases are not lightly to be withdrawn from the jury, and that ordinarily negligence is so far a question of fact that it should be submitted to and determined by them; but it is equally true that when the evidence and the inferences to be reasonably drawn *Rehearing denied June 10, 1907.

from it are undisputed, or are of such conclusive character that the exercise of a sound judicial discretion would permit the court to give effect to but one verdict, the case may and should be withdrawn from the jury and a verdict directed for the plaintiff or the defendant, as the one or the other may be proper.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, §§ 377, 379.] 2. MASTER AND SERVANT-RULES-OBEDIENCE BY SERVANT.

Where the duties of a servant in given circumstances are particularly specified in the unambiguous and reasonable rules of the master, of which the servant has knowledge and to which he has assented by entering and continuing in the service, his nonobservance or disobedience of them at a time when they are capable of observance is negligence as matter of law, and is not to be judged by the undefined and varying requirements of ordinary care.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 759-775.]

3. SAME-RULES-REASONABLENESS-VIOLATION-NEGLIGENCE.

Rules of a railroad company requiring the engineer to keep a careful lookout for signals, to stop the train when a signal is not understood, or is imperfectly displayed or absent from its usual place, and expressly requiring that he "must know," when approaching a switch, that it is in proper position, are reasonable and valid. And where the engineer, in approaching a known switch, at which designated and known signals were customarily displayed to indicate whether the switch was closed or open, either took proper observations, learned that the switch was open, and took chances upon being able to go safely through the same at great and unwarranted speed, or, knowing that he was approaching the switch, and not knowing whether it was closed or open, took chances on its being in proper position, and so drove into the switch when it was open, whereby the train was wrecked and he was killed, held, he was guilty of contributory negligence, preventing a recovery for his death.

4. SAME SPECIAL TRAIN Orders-Effect.

A wrecked train, of which intestate was the engineer being unable to conform to the regular schedule, was being run under special telegraphic orders directing it to run late, according to a special schedule therein given. The train dispatcher who issued the order testified that it "simply set the train back"; and a general rule of the company, of which the engineer had knowledge, required him to run "steadily and uniformly, adhering as closely to time as due regard for safety permits." Held, that such special orders should be construed merely to require the engineer to adhere to them as closely as due regard for safety permitted, and did not abrogate the standing rules of the company requiring engineers, on approaching switches, to know that they are in proper position, etc.

5. NEGLIGENCE--Contributory NEGLIGENCE PREVENTING RECOVERY.

One cannot-nor can one standing in his stead-recover damages for an injury to the commission of which he has directly contributed; and it matters not whether that contribution consists in his participation in the direct cause of the injury, or in his omission of duties which, if performed, would have prevented it. If his fault, whether of omission or commission, has been a proximate cause of the injury, he as also one standing in his stead-is without remedy against another, also in the wrong.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, § 84.] Adams, Circuit Judge, dissenting.

In Error to the Circuit Court of the United States for the District of Kansas,

James Black (I. P. Dana, L. F. Parker, and W. F. Evans, on the brief), for plaintiff in error.

W. R. Biddle (Hubert Lardner, on the brief), for defendant in er

ror.

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District Judge.

VAN DEVANTER, Circuit Judge. This was an action under a Kansas statute by a widow to recover damages of a railroad company for the death of her husband, Charles A. Dewees, alleged to have been caused by the negligence of the company and its employés. The plaintiff obtained a verdict and judgment, and the defendant has brought the case here; its chief contention being that there was error in refusing its request for a directed verdict. In Kansas the fellow-servant rule of the common law has been abrogated as respects employés of railroad companies. Gen. St. Kan. 1901, § 5858.

At the time of his death, Dewees was a locomotive engineer in the service of the railroad company, and was driving the engine of a northbound passenger train called the "Meteor." While proceeding at a speed of 50 or 60 miles an hour, the train was wrecked in the circumstances here stated; he and the fireman being among those who lost their lives. The accident occurred at Godfrey, a small station in Kansas, at which a passing track of considerable length lies east of the main track and is connected therewith at either end by a switch. A.northbound freight train had become temporarily stalled on the main track between these switches, and they had been opened to permit other trains to use the passing track while the blockade of the main track continued. The passing track was adequately constructed for the purposes for which it was designed and used, but, as was well known, it was not designed or used to carry trains running at great speed. Three trains, a north-bound passenger and two south-bound freights, made the passage in safety. The Meteor was the fourth train to approach while the blockade continued, and was wrecked in consequence of running through the open switch at the south end of the passing track, and onto that track, at the great speed before named. East of the switch was an upright switch stand 7 feet in height. At its top was a red disk 16 inches in diameter, which, when the switch was closed, could not be seen from along the track, and, when the switch was open, presented one red face to the south and the other to the north. Above the disk

was a lamp with four faces, two green and two red. When the switch was closed, one green face was to the south and the other to the north, and, when the switch was open, the red faces took the places of the green ones. The accident occurred at 4:54 in the morning, when it was dark, windy, and a little foggy. Whether the lamp in the switch stand was lighted, and whether the rear brakeman of the stalled train made use of certain prescribed signals to advise the Meteor of the existing situation, as was required by the rules of the railroad company, were subjects in respect of which the evidence was quite conflicting; so, for the present purposes, it must be assumed that the lamp was not lighted, that the prescribed signals were not given by the brakeman, and that this negligence was a proximate cause of the accident. We turn, there

fore, to that phase of the case which relates to the conduct of Dewees. Among the rules prescribed by the railroad company for the operation of its trains, with which Dewees was familiar and of which he carried a copy, were these:

"General Notice.

Obedience to the rules is essential to the safety of passengers and employés, and to the protection of property. * * 19 (27) A signal imperfectly displayed, or the absence of a signal at a place where a signal is usually shown, must be regarded as a stop signal, and the fact reported to the trainmaster."

**(106) In all cases of doubt or uncertainty the safe course must be taken and no risks run."

"(267) Conductors and enginemen are cautioned against reckless running. They must run steadily and uniformly, adhering as closely to time as due regard for safety permits."

"(358) They [the enginemen] must keep a careful lookout on the track for signals and obstructions; look back frequently and know that their train has not parted, obey all signals, even if considered unnecessary; stop and inquire respecting signals not understood. * * *

(359) When approaching switches the engineer must know that they are in proper position.

"(412) The company does not require or expect its employés to incur any risk, from which, by the exercise of their judgment and by personal care, they can protect themselves, but enjoins upon them and demands that they shall take time and use the means necessary to, in all cases, do their duty in safety."

The existence and location of the station, switch, and switch stand, the character and meaning of the signals usually displayed at the switch stand, and the proper use of the passing track, were well known to all experienced engineers on that part of the road. This was Dewees' first trip on the Meteor, but he was an experienced engineer, had driven engines over that part of the road almost daily for eight or nine years, was perfectly familiar with it, and was accustomed to determining his locality by familiar objects along the road, and by its grades, curves, and other features. As he approached the station from the south, he passed different fixed objects in plain view from his side of the engine, among them being the whistling sign one mile from the station and 4,100 feet from the switch. He heeded this sign by sounding the whistle for the station, and 3,000 feet from the switch he passed from a downgrade of 6 inches to an upgrade of 9 inches to every 100 feet, and from a straight line to a one degree curve to the left. The engine was a good one, and had a strong electric headlight which shone plainly upon all objects along the road before they were reached, and lighted up the switch stand and its surroundings so as to bring them within his range of vision when they were 1,200 feet away. The engine and cars were equipped with air brakes which gave him such control over the train that, by an emergency application of the air, it could be brought to a full stop in 1,000 feet, and, by a service application, could be brought to a speed of six miles an hour in 1,200 feet, although it could pass through the switch and over the passing track in entire safety at double or treble that speed. The switch was open, and therefore not in proper position for the train to proceed at great speed. The lamp in the switch stand did not show green, the signal for a closed switch. If lighted, it showed red, the signal for an open switch; and, if not lighted, there was an absence of a signal at a place where a signal was usually shown, which, as properly conceded in the

153 FEDERAL REPORTER.

instructions requested by the plaintiff, "was a warning." And whether or not the lamp was lighted, the red disk, 16 inches in diameter, was so turned as to show that the switch was open. While, as before said, it was dark, windy, and a little foggy, the evidence, including that for the plaintiff respecting the distances at which different lights and objects were seen at the time, makes it plain that, with the strong electric headlight on his engine, Dewees could have observed the conditions at the switch stand at any time after he came within 1,200 feet thereof. But, if the weather had prevented such observation, it would still be beyond question that he knew the relative location of the whistling sign, the switch, and the station, knew he had passed the whistling sign and at what speed he was running, did not know whether the switch was in proper position, and yet proceeded all the way to it at a speed of 50 or 60 miles an hour with the disastrous results before stated. He made no application of the air at his command, and his conduct was not induced by any false or misleading signals, for there was none. There was no evidence that any of the rules before set forth, or the use of the signal lamp at the switch, had been abandoned or fallen into disuse.

It is undoubtedly true that cases are not lightly to be withdrawn from the jury, and that ordinarily negligence is so far a question of fact that it should be submitted to and determined by them, but it is equally true that when the evidence and the inferences to be reasonably drawn from it are undisputed, or are of such conclusive character that the exercise of a sound judicial discretion would permit the court to give effect to but one verdict, the case may and should be withdrawn from the jury and a verdict directed for the plaintiff or the defendant, as the one or the other may be proper. Pacific Company v. Pool, 160 U. S. 438, 16 Sup. Ct. 338, 40 L. Ed. Southern 485; Patton v. Texas & Pacific Railway Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Chicago Great Western Ry. Co. v. Roddy, 65 C. C. A. 470, 131 Fed. 712. In our opinion this was such a case. The evidence reasonably permitted of either of two conclusions, but none other: One, that Dewees took proper observations, learned that the switch was open, and took chances on being able to go safely through the same and over the passing track at great speed; the other, that, knowing he was approaching the switch, and not knowing whether it was closed or open, he took.chances on its being in proper position. In either event he was culpably negligent. It is conceded. that negligence is necessarily deducible from the first conclusion, but that it is thus deducible from the second is questioned, and this upon the theory that his conduct must be judged by the standard of ordinary care, and that it cannot be said as matter of law that, in attempting to pass the switch without knowing whether it was closed or open, he failed to conform to this standard. The theory is not sound. His duties in the circumstances were not left to the undefined and varying requirements of ordinary care, but were particularly specified in the rules of the railroad company of which he had knowledge and to which he assented by entering and continuing in its service. An instruction giving effect to the theory so advanced was disapproved by. this court in Northern Pacific Ry. Co. v. Cummiskey, 70 C. C. A. 92, 97, 137 Fed. 508, 513, where it was said by Judge Hook: