in which the suit was pending, and the court below was bound to take notice of such a statute, as well as of the principles of the common law. Stephens on Pleading, 347. The declaration was, before amendment, one under which, by the pleading and practice in the Tennessee courts, the plaintiff was entitled to rely upon the provisions of the statute. Railroad v. Pratt, 85 Tenn. 9, 1 S. W. 618. The amendment, by adding a count specially declaring under the statute, was not, therefore, a departure in law or fact from the cause of action stated in the declaration as originally filed, because the plaintiff could have relied upon statutory negligence, as well before as after the amendment. The case is clearly distinguishable from Union Pacific R. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983, for this reason, as well as for other reasons which need not be alluded to.

The crossing where this collision occurred was not designated by a signboard, as required by the first paragraph of section 1574, Shannon's Code Tenn. Unless so designated, the company is not obliged to blow the whistle or ring the bell. Railroad v. McDonough, 97 Tenn. 255, 37 S. W. 15; Southern Ry. Co. v. Elder, 81 Fed. 791, 26 C. C. A. 615. The plaintiff below was permitted, over objection, to prove that the defendant nevertheless customarily blew for this crossing, and "that they now blow all the time." He had before testified that upon this particular occasion the whistle was not blown or the bell rung. At the time that this evidence was offered the plaintiff admitted that he did not rely upon the failure of the defendant to whistle as a ground for recovery, but desired to prove that it customarily did whistle, for its bearing upon the matter of his own conduct in going upon the crossing at the time and under the conditions shown by the evidence. The evidence was thereupon admitted. The court was asked to exclude any evidence of the habit of the company to whistle since the accident, but this was denied.

The negligence of the plaintiff is not a bar to a recovery of damages for an injury, where the requirements of the Tennessee statute, heretofore cited, have been disobeyed. In such cases negligence of the plaintiff must operate to mitigate the damages, but does not defeat the action. Western & Atlantic R. Co. v. Roberson, 61 Fed. 592, 9 C. C. A. 646. The evidence admitted tending to show a settled cus-tom to blow at this crossing, if known to the plaintiff, would have some bearing upon the degree of plaintiff's negligence if he undertook to cross without stopping or looking before crossing the track at grade, and under proper instruction guarding against other use was admissible. But it was clearly not competent to show the custom of the company after the collision, for that could have had no influence upon plaintiff's conduct.

For the errors indicated, the judgment must be reversed, and remanded for a new trial.

CHICAGO GREAT WESTERN RY. CO. v. RODDY.

(Circuit Court of Appeals, Eighth Circuit. July 18, 1904.)

1. TRIAL-DIRECTION OF VERDICT.

No. 2,000.

When the evidence leaves the material facts admitted or undisputed, and when the evidence leaves the material facts and the deductions from them of such a conclusive character that the exercise of a sound judicial discretion would permit the court to give effect to but one verdict, it is its duty to instruct the jury to return it.

When there is a substantial conflict in the evidence relating to the material facts, and when fair and rational minds may well draw different conclusions from established facts, the court should submit the issues to the jury.

2. INJURY TO RAILROAD EMPLOYÉ-DIRECTING VERDICT.

A rainstorm of extraordinary severity prevailed at Elma from 6 to 7 in the evening, and washed out the roadbed three-quarters of a mile south of that station. The sectionmen in charge of the section south from Elma and a telegraph operator were there. The heaviest portion of the storm ceased about 7, but lighter rain followed. The plaintiff, an engineer, was running north from Oelwein to Elma. He left Oelwein at 5. There was no storm south of New Hampton 15 miles from Elma. He passed that station at 7:30. Culverts and creeks were full of water, and low grounds were flooded at New Hampton and Alta Vista, a station four miles south of Elma. About 800 feet south of the washout a band of Italian trackmen attempted to warn the plaintiff of his danger, which they had discovered. But he did not observe their signals, or did not understand them. Neither the sectionmen nor the telegraph operator took any steps to patrol the track to discover its condition or to warn the enginemen of their danger before the plaintiff ran into the washout a few minutes past 8 in the evening, although they were at Elma, an hour had passed after the heaviest rain had ceased, and the washout was within a mile of the station.

Held, neither the absence of negligence of the sectionmen and telegraph operator, nor the contributory negligence of the plaintiff, was so clear that it was the duty of the court to give a peremptory instruction for the defendant.

3. CHARGE-REFUSAL OF REQUEST EMBODIED IN CHARGE.

Where a rule or principle of law is clearly declared by the court in its general charge, it is not error to refuse to repeat it in the words of counsel. 4. CHARGE-REFUSAL OF REQUEST CONTAINING SOUND AND UNSOUND PROPOSI

TIONS.

Where a request for an instruction contains several propositions of law, any one of which is unsound, it is not error to refuse it. (Syllabus by the Court.)

In Error to the Circuit Court of the United States for the District of Minnesota.

John L. Erdall (A. G. Briggs and F. B. Kellogg, on the brief), for plaintiff in error.

Daniel W. Lawler (Frank Arnold, on the brief), for defendant in

error.

Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges.

1. See Trial, vol. 46, Cent. Dig. § 377.

SANBORN, Circuit Judge. This is an action for damages for a personal injury which the plaintiff below, John J. Roddy, alleged was inflicted upon him by the negligent failure of the Chicago Great Western Railway Company to give him timely warning of a washout of the roadbed, which was caused by an unusual storm of rain. The railway company denied the alleged negligence, and averred that the plaintiff was guilty of negligence which contributed to his injury. At the close of the evidence a motion was made by the defendant, and denied by the court, to instruct the jury to return a verdict for the railway company, and a judgment for the plaintiff followed. The denial of this motion is the alleged error in which counsel for the company seem to place the most confidence, and it presents the usual question whether the evidence so conclusively failed to show causal negligence on the part of the railway company, or so clearly disclosed negligence on the part of the plaintiff which contributed to the injury, that it was the duty of the court, in the exercise of a sound judicial discretion, to withdraw the issues in the case from the jury.

There is always a preliminary question for the judge before a case can be properly submitted to the jury, and it is, not whether or not there is any evidence, but whether or not there is any substantial evidence, upon which a jury may properly render a verdict in favor of one of the parties to the action. If there is no such evidence to sustain a verdict in favor of one of the parties, it is the duty of the court to direct the jury to return a verdict against him. imposed upon the court in every case where the evidence and the This duty is rational deductions from it are undisputed, or of such a conclusive character that the exercise of a sound judicial discretion would compel a refusal to give effect to a contrary verdict. Southern Pacific Co. v. Pool, 160 U. S. 438, 440, 16 Sup. Ct. 338, 40 L. Ed. 485; Patton v. Texas & Pacific Railway Company, 179 U. S. 658, 660, 21 Sup. Ct. 275, 45 L. Ed. 361, and cases there cited. The exercise of this judicial discretion requires the direction of a verdict in every case in which the substantial evidence leaves the material facts and the just deductions from them admitted, undisputed, or so conclusively established that all reasonable men, in the exercise of an honest and impartial judgment, may fairly draw but one conclusion from them. On the other hand, if the facts are in dispute, and there is a conflict in the substantial evidence relative to their existence, or if from the established facts the minds of rational men might well draw different conclusions, it is the duty of the court to submit the disputed issues to the jury. Chicago Great Western Ry. Co. v. Price, 38 C. C. A. 239, 243, 97 Fed. 423, 427, 428, and cases there cited.

At the close of the trial of this case there was evidence tending to establish these facts and circumstances: Roddy was the engineer on a freight train of the defendant which was running north from Oelwein, in the state of Iowa, toward St. Paul, in the state of Minnesota. He left Oelwein at about 5 in the afternoon of May 19, 1902. He stopped at New Hampton, a station 15 miles south of Elma. He left New Hampton about 7:30 in the afternoon. He passed through Alta Vista, a station four miles south of Elma, about 8 in the

evening, without stopping, and he ran into a washout, which derailed his engine and seriously injured him, a few minutes after 8 o'clock, at a place about three-quarters of a mile south of the station of Elma. An unusually heavy rain storm prevailed at Elma and for a distance of 15 miles south of that station from 6 until 7 that afternoon, and lighter rain followed between 7 and 8. This storm was so extraordinary that one of the witnesses testified that he never saw it rain harder, so unusual that the telegraph operator at Elma remained at the station for an hour before he ventured forth for his supper, and all men seem to have taken shelter until 7 o'clock in the evening. Roddy was traveling south of the storm when it passed, and the only notice he received of its character was from the flooded condition of the country from New Hampton to Elma, and from the acts of the pedestrians he passed. At New Hampton there was so much water that it would not pass through a large culvert, and it backed up against the roadbed and covered several acres of land. At Alta Vista it carried away sidewalks, rose from 8 to 10 feet higher than usual, and within 2 or 3 feet of the railroad bridge which spanned. a creek, overflowed the banks of the creek, and covered the surrounding fields. It did not, however, reach the ties of the railroad or interfere with the operation of the train at this point. At Alta Vista one of the witnesses motioned to the plaintiff as he passed over the bridge and pointed to the high water, but he did not attempt to stop the train. When Roddy came within a few hundred feet of the washout, he met and passed a band of Italian laborers who had been engaged in repairing the roadbed and track at Elma, and who were returning to Alta Vista, where they boarded and spent the nights. He had met and passed these men on other days. They were not the sectionmen in charge of this part of the railroad, and Roddy was aware of this fact. They had discovered three washouts in the roadbed on their way south from Elma at about 8 in the evening, and their foreman had instructed Mascolene, one of their number, to go south and stop Roddy's train, while he went back to Elma to notify the telegraph operator. Mascolene was carrying two lighted lanterns. He testified that he saw Roddy's train coming and "went to flag it, but it was so windy the lanterns went out"; that he was then on the ends of the ties; that he motioned to Roddy to stop the train with his arm, and called to him to the same effect, but that the train went on and he jumped into the ditch. Several of the Italians corroborated this evidence, and testified that they also signaled and called to the engineer to stop his train. Roddy and his fireman testified that they saw the Italians, but that they did not see or hear any signal to stop; that they did not recognize in the calls and gesticulations of the Italians anything different from their usual outcries and motions when they passed the train. At this time it was not so dark that the engineer could not see these trackmen and their movements, it was between daylight and dark, the headlight of the engine was burning, and the signal lights at Elma were lighted. The storm struck Elma at 6 in the afternoon. Several of the sectionmen whose duty it was to care for the condition of a section of five miles of this railroad extending south from Elma were at

the station there between 6 and 7:45 that evening. The rules of the company required that all hands should be detailed during heavy storms to watch the road, that every precaution should be taken to prevent accident, and that agents, telegraph operators, and bridge and section men should telegraph the train dispatcher information as to severity of storms and extent of damage done, and that they should impart information to train and engine men. There was no evidence that the telegraph operator or sectionmen at Eima detailed any one to examine or watch the track south of that station, or that they took any steps to ascertain its condition or to warn the crew on Roddy's train of any defects in it during the two hours between the time when this storm struck that station and the derailment of the train three-quarters of a mile south of it. There was ample time. between 7 in the evening, when the heaviest of the rain had passed, and the accident, more than an hour later, for the sectionmen to have patrolled this track, found the defects, sent a telegram to Alta Vista, and covered the track south of the washout with flagmen, torpedoes, and other danger signals. Under the statutes of Iowa railroad companies are liable for injuries inflicted by the negligence of the fellow servants of the victims, and the evidence in this case fails to lead our minds to the conclusion that all reasonable men in the exercise of an impartial judgment would be compelled, or would be likely, to conclude, in the light of the rules of the company, of the unusual virulence of the storm, and of the responsible nature of the duties intrusted to them, that the telegraph operator and the sectionmen at Elma exercised ordinary care to patrol this track, to ascertain and to warn the enginemen who were operating trains upon it of the danger from it, when, without making any effort to do either, they permitted Roddy to run into the pit in the roadbed within a mile of their station an hour after the heavier part of the storm had ceased.

Did the evidence conclusively establish the contributory negligence of the plaintiff? It was his duty to operate his engine with care, and to keep a constant and vigilant lookout upon the track to detect and avoid danger. The rules of the company required him to watch track, bridge, and watchmen to see the signals they were required to give, and, when circumstances rendered it necessary, to reduce speed to avoid unnecessary risk. In case of an extraordinary rainstorm or high water they imposed upon him the duty to stop his train and send a man ahead to examine embankments, bridges, trestles, culverts, and other portions of the road liable to damage, before passing over, to make careful inquiry at all stopping places to ascertain the extent and severity of the storm, and, in case of doubt as to safety in proceeding, to place his train on a siding and to remain there until it was safe to go on. Roddy did not reduce, but he probably increased, the speed of his train. He did not stop and send a man ahead to examine any embankment or bridge. He did not inquire as to the severity of the storm. He either did not observe or he did not understand the signals of the Italians for him. to stop, if these signals were given. Was this course of action conclusive evidence of his failure to exercise ordinary care? In the determination of this question the alleged warning of the Italians