death of the intestate was caused by defendant's negligence in failing to maintain a reasonably safe track, and in carelessly leaving the switch open; and he demands a recovery of damages for the benefit of the widow, under the provisions of the act of Congress providing for recovery in such cases, where the deceased was engaged in the work of interstate commerce. The defendant denies the claim, says the engineer was himself guilty of negligence, and that the right of action, if any, is barred by the statute of limitations. Further reference to the pleadings will be made in a later paragraph of the opinion.

At the close of the testimony, defendant's motion for a directed verdict was denied. The jury returned a verdict for damages in plaintiff's favor, and a special finding to the effect that the switch had been left open by the employes and agents of the defendant.

Spellman was an experienced engineer, and had been in the employ of the defendant for 22 years. At the time of his death, he was about 61 years old, had been married about 35 years, and was the father of three children, all of whom survived him, and had arrived at their majority. Prior to the bringing of this action, the children, being all the heirs at law of the deceased, united in a writing by which they assigned and transferred to the widow any and all interest which they had in the estate of their father, including therein all their right and interest in the claim for damages on account of his death.

Concerning the circumstances immediately attending the derailment of the engine, it is conceded that the switch was unlocked and partly open, causing the wheels to leave the track. The following cut is made from a photograph of the switch stand, and its inspection will make clear the situation.

From the top of the stand arose a rod or staff, only partially shown in the cut. At the top of the staff was a lamp for use at night, and below the lamp, a red arrow or pointer.

When properly set for the main line, the switch was held in place by an iron plunger at the lower end of the staff, dropped into an opening of the frame or body of the stand. This opening was square in form, and the plunger was squared to fit into it. A lever or handle was attached to the upper end of the plunger, which lever, when the switch was closed, hung down upon the side of the stand. To work the switch, the operator lifted the handle, raising the plunger out of the socket; then, by swinging the lever horizontally, the switch points or ends of the movable switch rails were carried around into connection with the main or side track, as might be desired. The mechanism of the stand was so adjusted that, when the switch was set for either line, the plunger would fit into the socket; but when lifted out, it required a swing of 90 degrees of the lever to bring it into position for the other connection, and allow the plunger to again fit the socket. When in position for either track, the plunger, being in the socket, held the rails in connection; but if the lever, being lifted, was swung to any extent less than 90 degrees, the plunger, not being in position for the socket, would rest on the top of the stand, and could not effectually prevent movement of the switch points. The staff carrying the lamp and arrow was so attached to the stand as to turn with the horizontal movement of the lever; and, when the switch was fully opened for the side track, the arrow signal stood at right angles to the main track, and served as a warning to train men approaching on the main line; but when the switch was set for the main line, the signal stood parallel with that line, and was invisible to the train men. It should also be said that the switch stand was provided with a padlock, by which, when not in use, or unattended by a switchman, the lever could be secured to the side of the stand, as a protection against interference or misuse by unauthorized persons. It is obvious from the foregoing statement that if, as both parties seem to concede, the

switch was unlocked and the plunger lifted and resting out of place, the warning signal would not be fully displayed to the main track, the obscurity being in proportion to nearness of the lever to the main track connection. It was the opinion of railroad men, expressed on the trial, that the plunger, when in place, even though unlocked, could not be thrown out of the socket by the jar or vibration of passing trains; but it would seem clear to the nonexpert mind that, if the plunger was out and resting on the top of the stand when the engine was wrecked, the extent of the opening or displacement, as found by the witnesses after the wreck occurred, would not necessarily indicate the exact position of the switch points when the engine struck them. In other words, assuming that the switch was partly open and freed from the restraining effect of the plunger when in place, it would appear quite possible that the extent of the disconnection and displacement of the switch points may have been materially increased or diminished by the impact of the engine as it struck and passed over the defect in the track. feature of the situation was material in its bearing upon the circumstance, to which we shall again refer, that another engine had passed this switch in safety but a short time before the accident. It is also to be considered as bearing upon the extent to which the danger signal was displayed, and therefore upon the question whether the deceased was in the exercise of due care. The fireman, who alone was with the deceased at the time of the accident, says that, as they approached the switch, at a distance of about 200 feet, he discovered something wrong with the target, and called the attention of the engineer, who looked, and applied the air brake, but too late to make the needed stop. He says:

This

"The rail was what I took to be half and half-the switch was lined up for neither one or the other."

I. Such being the admittedly defective condition of the place at the time deceased arrived with his train, we

have

1. RAILROADS:

negligence: res ipsa loquitur: derailing of engine: burden of proof.

first to ask whether there is evidence to take the case to the jury upon the question of the defendant's alleged negligence. That such evidence does appear, we have no doubt. Even if we should disregard matters of fact upon which there is a conflict in the evidence, the circumstances upon which there is no dispute-that the switch, upon the proper placement and maintenance of which depended the safety of every passing train, was in the exclusive charge and control of the defendant and its agents; that it stood unattended, unlocked and open, in a position to create a death trap into which an approaching train, freighted with living persons, was liable to plunge; that the intestate's engine was in this manner derailed and he himself fatally injured; that accidents of this nature do not ordinarily occur if due care be used by the railway company, its agents and employes; and that defendant was in duty bound to exercise all reasonable care to furnish a safe track over which to operate its enginesmake up a record from which a jury may properly draw an inference that there was a breach of defendant's duty in this respect. In other words, it makes a case for the application of the maxim res ipsa loquitur, as the same is now generally understood and applied, and constitutes a prima-facie showing sufficient to sustain a verdict in plaintiff's favor. This rule is entirely consistent with the fundamental proposition of the law of negligence: that, in order to recover on account of the want of due care on the part of a defendant, the plaintiff assumes the burden of proof, and that proof of the mere fact of his injury is insufficient to sustain a finding in his favor. In all cases, he must offer competent evidence, from which the jury may fairly and justly find the defendant wanting in the the proper measure of care. This he is not required to do by direct, positive evidence of eyewitnesses to the alleged negligent act, but it is sufficient to make a case for the jury on this question if he shows facts from which a reasonable inference of the alleged negligence may be drawn.