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are disregarded, since they are only the neces-, view of Rev. Codes, $ 8028, subd. 2, declaring sary means of accomplishing a justifiable and that the jury are not bound to decide against a lawful end. They fall, it is true, within the presumption or other evidence satisfying their words of the statute; but as they are free from minds. the imputation of fraud, and produce no ben- (Ed. Note.--For other cases, see Carriers, efit to the debtor at the expense of the credi- cent Dio SS 1118 11901140 1152 1160 1167 tors, they are not embraced within its meaning, | 1179, 1100, 1217, 1233, 1244. 1248, 1315-1325 : and are justly excluded from its operation. It | Dec. Dig. 320.) makes no difference, therefore, that the debtor is in failing circumstances, that suits are threat

3. CARRIERS 318 - PERSONAL INJURIES — ened. that judgments exist against him, or that! SUFFICIENCY OF EVIDENCE-"WRIST-DBOP." executions against him are momentarily ex

Evidence in a passenger's action for perpected. Under any or all of these contingencies

sonal injury when his train was derailed held he has the full and absolute right to dispose of

to show a causal connection between the derailhis property for the payment of his debts. The

ment and his wrist-drop and minor injuries and fact therefore that the assignment is made for

| to establish liability for the damages approprithe purpose of avoiding the preference that

ate thereto; the term “wrist-drop" meaning might otherwise be obtained by legal process in

a form of paralysis of the hand and wrist rea race of eager diligence by disappointed credi- .

11. sulting from an affection of the nerve which sup tors does not make the assignment invalid. I plies the muscles of the forearm, wrist, and Şuch is generally the motive to the making of na

Å hand. such an assignment."

[Ed. Note. For other cases, see Carriers,

Cent. Dig. 88 1270, 1307-1314; Dec. Dig. Although the English and some American 18.1 decisions support a contrary view, it is be

4. NEGLIGENCE em 134 – EVIDENCE – SUFFI. lieved that the better considered American CIENCY-CIVIL ACTION. authorities support the doctrine announced It is sufficient to make out a prima facie in the excerpt last above quoted. Hoffman v. / case if the plaintiff can show that the injury 18

more naturally to be attributed to the negligence Mackall, 5 Onio st. 124, 04 Am. Dec. 31: alleged than to any other cause. Nicholson v. Leavitt, 6 N. Y. Super. Ct. 252; (Ed. Note.-For other cases, see Negligence, Id., 6 N. Y. 510, 57 Am. Dec. 499; Malcolm Cent. Dig. $8 267-270, 272, 273; Dec. Dig. v. Hall, 9 Gill (Md.) 177, 52 Am. Dec, 688; 1

134.] Mayer v. Hellman, 91 U. S. 496, 23 L Ed. | 5. DAMAGES O62—MITIGATION-OPERATION. 377; also, cases already cited from note to

The rule that an injured person must use

ordinary diligence to effect a cure and minimize Burrill on Assignments, supra.

the damages does not require an injured passen[5] No fraud or bad faith is alleged in the ger, after one unsuccessful operation, to submit answer, and where, as in this case, plaintiff

to a major operation and risk failure in that as

well, in order that damages caused by the car sets out in the complaint the sources of his

rier's negligence may be reduced. title and alleges possession under it, it is nec- (Ed. Note. For other cases, see Damages, essary, if defendants wish to show fraud in Cent. Dig. 8$ 119–131; Dec. Dig. 62.) the transactions, that they allege that fact in the answer. 20 Cyc. 748, and cases cited

Appeal from District Court, Meagher Coun

ty; J. A. Matthews, Judge. in note; Seeleman v. Hoagland, 19 Colo. 231, 34 Pac. 995. This case was tried before the

Action by Joseph H. Freeman against the opinion in Pelton v. Sheridan was rendered,

Chicago, Milwaukee & St. Paul Railway Comand we think that the learned and experienc

pany and another. Judgment for plaintiff, ed judge erred in taking it away from the

and defendants appeal. Affirmed. jury.

Shelton & Furman and A. J. Verheyen, all The judgment will be reversed, and the of Butte, and L. D. Glenn, of Harlowton, for cause remanded for further proceedings not appellants. Jones & Jones, of Harlowton, inconsistent with this opinion.

and Purcell & Horsky, of Helena, for respond.

ent. MOORE, C. J., and BURNETT and BEAN, JJ., concur; BENSON, J., taking no part in SANNER, J. The respondent, plaintis be the consideration of this case.

low; brought this action to recover for per

sonal injuries alleged to have been suffered (52 Mont. 1)

by him while a passenger on one of the trains FREEMAN v. CHICAGO, M. & ST. P. RY.

of the appellant railway company in conseCO. et al. (No. 3586.)

quence of the derailment thereof. The ques(Supreme Court of Montana. Jan. 24, 1916.)

tions presented are whether negligence on the 1. CARRIERS 316-DERAILMENT-PRESUMP

part of appellants was shown; whether such TION OF NEGLIGENCE.

negligence was the proximate cause of the inAs to a passenger injured when the car injuries complained of; whether the damages which he is riding is derailed, the derailment | awarded are excessive; whether the verdict raises a presumption of negligence. [Ed. Note. For other cases, see Carriers,

is contrary to law; and 'whether errors of Cent. Dig. $$ 1261, 1202, 1283, 1285–1294; Dec.

law prejudicial to the appellants were comDig. Ow316.)

mitted at the trial. 2. CARRIERS C320 - PASSENGERS - NEGLI [1, 2] 1. It is not disputed that the respondGENCE-QUESTION FOR JURY.

| ent was a passenger for hire, and that the Where the derailment of a train raises a la

a car in which he rode was derailed. This presumption of negligence, the utmost effect of the carrier's evidence tending to show the con-raises a presumpuon of nezigence. Hoskins

raises a presumption of negligence. Hoskins trary was to raise a question for the jury, in /v. Northern Pac, Ry. Co., 39 Mont, 394, 102 Pac. 988; Pierce v. Great Falls & C. Ry. Co., , examination the surgeon dissected the nerve 22 Mont. 445, 56 Pac. 867. If the evidence from the callous, the purpose being to allow presented by appellants tended to show the the nerve to regenerate if it would, but the contrary, its utmost effect was to raise a wrist-drop remains and will remain unless question for the jury. Rev. Codes, 8028, something further is done. We think this subd. 2; 3 Thompson on Negligence, § 2773. shows a causal connection between the derailSome contention is made that the presump ment and the wrist-drop, as well as the minor tion of negligence arising from the derail- | injuries complained of, and to establish liament is not available to respondent, because bility for the damages appropriate thereto. he presented evidence tending to show the True, the evidence does not absolutely exclude cause of the derailment. The record does not the possibility of any other cause of the wristshow that the cause of the derailment was drop; but courts cannot attain to scientific established. Hence the respondent was not, demonstration, and the rule of absolute exeither as a matter of pleading (Hoskins v. clusion prevailing in criminal cases does not Northern Pac. Ry. Co., supra) or as a matter apply to civil actions. "It is sufficient to of proof (Cassady v. Old Colony St. Ry., 184 make out a prima facie case if the plaintiff Mass. 156, 68 N. E. 10, 63 L. R. A. 285), de- can show that the injury is more naturally prived of the benefit of the presumption. to be attributed to the negligence alleged than

(3] 2. The derailment occurred on June 30, to any other cause." Andree v. Anaconda C. 1913, at Harlowton. The injuries imputed | Min. Co., 47 Mont. 554, 133 Pac. 1090. to it by the complaint are that the respondent [6] 3. We quite agree with counsel for apwas bruised, shocked, and wounded; that pellants that, if we ignore the wrist-drop, his right arm and right ankle were bruised the damages awarded would be grossly exand broken; that other injuries theretofore cessive. But the wrist-drop cannot be igsustained by him and from which he was then nored, for it means the loss of the right hand; recovering were greatly aggravated; that unless the respondent can be relieved, he is his injuries are permanent; and that, be worse off than if he had suffered amputation. cause of them, he has sustained great bodily | It is argued that this may not be considered, and mental suffering, and is incapacitated for because Dr. Keistler believes that an opera. business. The evidence produced in his be- tion will relieve him, So Dr. Keistler behalf tends to show these facts; He is a ranch- lieved in October, when an operation was perer, and at the time in question was 52 years formed for that purpose without result; and old. On the preceding 16th of May he met he also says: “An operation at this time with an accident which resulted in the break- might produce complete recovery, and it ing of his right arm above the elbow, and a might not.” In any case the operation is not “Pott's fracture” of the right ankle. For a simple one, but a “major operation, one these he sought and received such medical that involves delicate structures and the imtreatment that at the time of the derailment port of which is more serious." We recoghe was in a fair way to complete recovery ; nize the rule that an injured person must his arm and ankle giving him no trouble. In use ordinary diligence to effect a cure and thus the derailment he was thrown bodily against to minimize the damages (Tiggerman v. City the side of the car, striking against his right of Butte, 44 Mont. 138, 119 Pac, 477; Allen elbow, and thereafter his elbow was found v. Bear Creek Coal Co., 43 Mont. 269, 115 to be sore and discolored, his arm hurt, his Pac. 673); but it would be carrying this rule ankle sprained, his head bruised, he suffered to an absurd extreme to hold that a man who loss of sleep and much pain from both ankle has submitted to one operation, which failed, and arm, and two or three weeks later be must take such chances with his life and gan to lose control of his wrist and hand. his health as may be involved in a second, This loss of control has since become total, risking failure in that as well, in order that showing an affection of the nerve which sup- the damages caused by another's negligence plies the muscles of the forearm, wrist, and may possibly be reduced (Watson on Damag. hand, creating a form of paralysis known to es, 186; Martin v. Pittsburgh Ry. Co. [Pa.) surgeons as "wrist-drop.” The course of this 86 Atl. 299, 48 L. R. A. (N. S.) 115; Blate v. nerve leads close to the elbow, and the con- Third Ave. Ry. Co., 44 App. Div. 163, 60 N. dition of wrist-drop could have resulted, and Y. Supp. 732; McNamara v. Railway Co., it is reasonably probable that it did result, 133 Mo. App. 645, 114 S. W. 50). So, considfrom the impact of the arm against the side ering the wrist-drop as well as the minor inof the car as stated above.

juries sustained by the respondent, taking [4] A surgical examination of the respond- some cognizance of the pain and anguish necent in October, 1913, disclosed that the nerve essarily entailed thereby, and noting the rein question had become imbedded in a callous spondent's expectancy of life and his loss of surrounding the point of the old fracture. earning capacity, in connection with the cost No such condition was indicated in the mid- of an annuity to recoup the same, we cannot dle of June, and was not probable as matters pronounte the award so excessive as to shock then stood. It could have been caused by ex- the conscience; we do not even think it should cessive motion or too early use of the arm, I be scaled. Lewis v. Northern Pac. Ry. Co., but there is nothing to show that such was, 36 Mont. 207, 92 Pac. 469; White v. Chicago, or probably was, the cause. At the October | etc., Ry. Co., 49 Mont. 419, 143 Pac, 561; Mul

154 P.-58

lery v. Great Northern Ry. Co., 50 Mont. 408, ,4. MASTER AND SERVANT 112-SAFE PLACE 148 Pac, 323.


-NEGLIGENCE-FAILURE TO FENCE TRACK. 4. It is suggested that the verdict is con

The failure of a railroad company to fence trary to the court's instructions numbered its tracks may render it liable for the death of a 6, 7, 12, and 13, and therefore is against law.conductor from the derailment of a car due to We find no argument specifically directed to consi

rected to collision with a cow on the track. this proposition, but careful consideration of

[Ed. Note. For other cases, see Master and

Servant, Cent. Dig. 88 212, 213, 218-223; Dec. it fails to disclose wherein such contrariety | Dig. 112.1 exists. 5. The other assignments of error are pro


RAILROAD CONDUCTOR-FAILURE TO FENCE cedural, and none of them, in our opinion, TRACK-NEGLIGENCE-QUESTION FOR JURY. command a reversal of this case.

Where, in an action for the death of a railThe judgment and order appealed from are road conductor from derailment of a car due to

collision with cow on track. it appeared that affirmed.

defendant's track was not fenced, that cattle Affirmed.

were permitted to run at large, that there was

some public domain in the vicinity of the acBRANTLY, C. J., and HOLLOWAY, J.,

cident and an unobstructed access to defendant's

right of way and track, and that cattle frequentconcur.

ly came upon the track, and encounters between

em and moving trains were not unusual, all of

which defendant knew prior to the accident, the (51 Mont. 565)

question whether defendant's failure to fence ALEXANDER V. GREAT NORTHERN RY. the track constituted actionable negligence was

for the jury. Co. (No. 3574.)

[Ed. Note. For other cases, see Master and (Supreme Court of Montana. Jan. 20, 1916.) Servant, Cent. Dig. &$ 1001, 1006, 1008, 1010

| 1015, 1017-1033, 1036-1042, 1044, 1046-1050; 1. COMMERCE 27INTERSTATE COMMERCE

Dec. Dig. 286.)

6. MASTER AND SERVANT 217-INJURY TO Where the allegations of the complaint in CONDUCTOP — ASSUMPTION OF RISK-Backan action for death of a railroad conductor from ING OF TRAIN. derailment of a car showed that the action was Evidence in such case that the train was brought under the federal Employers Liability backing, and that defendant's division superinAct (Act Cong. April 22, 1908, c. 149, 35 Stat. tendent had given oral instructions that trains 65 (U. S. Comp. St. 1913, $S 8657-8665)), proof should proceed with the engine foremost, did not that the company was engaged and decedent preclude recovery on the ground that decedent employed in interstate commerce at the time of had assumed the risk, where it did not appear the accident was indispensable to the right to that such instructions had been communicated recover under such act.

to deceased, and it did appear that the backing [Ed. Note.--For other cases, see Commerce,

of work trains was permitted by custom and Cent. Dig. $ 25; Dec. Dig. 27.)

defendant's general rules.

[Ed. Note.-For other cases, see Master and 2. COMMERCE 27—“INTERSTATE COMMERCE" | Servant, Cent. Dig. 88 574-600; Dec. Dig.

Where a railroad conductor was killed from

17. MASTER AND SERVANT Om 289-DEATH OF derailment of a car while he was in charge of

CONDUCTOR OF WORK TRAIN-CONTRIBUa work train operating over a branch line whol

TORY NEGLIGENCE--QUESTION FOR JUBY. ly within the state, and it appeared that hi

Where in an action for the death of a conduty with the train was to load ties and take

ductor of a work train from derailment of a the loaded cars to some convenient siding on car., due to collision with a cow on the track the branch line from which they would later be while the train was being run with the cars taken by other trains to defendant's tie-treating

in front of, and the tender behind, the engine, plant within the state, after which they woulå at a rate of 10 or 12 miles an hour, the evidence be transported and used in construction work on left it in doubt whether there would have been lines within or without the state as they might

less danger if the tender had been in front, and be needed, decedent was not employed in inter

the cars behind, and whether, if the danger state commerce at the time of the accident, and would have been less,, decedent knew thereof, hence the action was not sustainable under the and whether it would have been safer to have federal Employers' Liability Act.

made the “flying switch" necessary to the trans

position, decedent was not chargeable with con[Ed. Note.-For other cases, see Commerce,

tributory negligence as a matter of law in the Cent. Dig. $ 25; Dec. Dig. Om27.

selection of the more dangerous of two availFor other definitions, see Words and Phrases, able methods of running the trains. First and Second Series, Interstate Commerce.]

[Ed. Note.-For other cases, see Master and 3. MASTER AND SERVANT 264-INJURY TO

Servant, Cent. Dig. 88 1089, 1090, 1092-1132; SERVANT-PLEADING-RECOVERY,

Dec. Dig. Om 289.] That the complaint in an action for the 8. MASTER AND SERVANT 240-INJURY TO death of a railroad conductor from derailment

SERVANT - CONTRIBUTORY NEGLIGENCE of car declared under the federal Employers'

CHOICE OF MORE DANGEROUS WAY. Liability Act did not preclude recovery under While contributory negligence will be im. the state law on sufficient pleadings and proof, l.puted as a matter of law to an employé who where defendant, with knowledge of its right, I knowingly chooses an obviously dangerous way did not ask for removal of the cause to the fed- of performing his duty, instead of one which is cral court, but, instead, submitted to the state

safe, or less dangerous, unless his choice was court's jurisdiction by seeking a dismissal. justified by emergency, contributory negligence

(Ed. Note.-For other cases, see Master and will not be imputed merely because of a mistake Servant, Cent. Dig. 88 861-876; Dec. Dig. O lin judgment, as appears from after events, where 264.]

he made such choice as a reasonably prudent man might have made under all the known or against the company, upon which verdict obvious circumstances.

judgment was duly entered. From that judg[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 751–756; Dec. Dig. Om

ment, as well as from an order denying it a 240.)

new trial, the company has appealed. 9. MASTER AND SERVANT 217-INJURY TO

A reversal is sought upon four grounds, CONDUCTOR OF WORK TEAIN-ASSUMPTION | viz. : (1) The complaint alleges, but the proof OF RISK-KNOWLEDGE OF DANGER.

| does not establish, that Hall was employed Where the conductor of a work train was in interstate commerce at the time of his killed from derailment of a car, due to collision with a cow, the fact that decedent knew that

death; (2) no actionable negligence on the the right of way was not fenced did not pre- | part of the appellant is alleged or proved; clude recovery as a matter of law because of as (3) the evidence shows a clear case of assumed risk, where it did not appear that he

sumed risk; and (4) substantial errors of knew of the presence of cattle in the vicinity, or the likelihood of their entering on the track,

ntering on the track. law prejudicial to the appellant occurring at though he might with reasonable care have dis the trial. covered these things; it not being enough to [1, 2] 1. The allegations of the complaint make out a case of assumption of risk that the injured party knew of the things from which

stamp the case as brought under the proviharm might come, but being essential that he sions of the federal Employers' Liability appreciate the danger from which he suffered Act, and, to maintain it as such, evidence [Ed. Note.-For other cases, see Master and

| that at the time concerned the company was Servant, Cent. Dig. 88 574-600; Dec. Dig. Ons 217.)

engaged and the decedent was employed in

interstate commerce was indispensable. 10. TRIAL Om 140—QUESTION FOR JURY-CREDIBILITY OF WITNESS.

North Carolina R. R. Co. v. Zachary, 232 U. Where a witness on cross-examination made s. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. a material change in his testimony as to a state Cas. 1914C, 159. The facts established touchment made to him by a person since deceased,

ing this phase of the case are: The defendshortly before the occurrence of an accident, that he did not know whether his affidavit, made

ant company is a common carrier whose main a few days after the accident, mentioned such line extends from St. Paul, Minn., to Pustatement, and where there was no other evi

get Sound, Wash., traversing this and other dence as to the statement having been made by deceased, the question of his credibility was for stay

states. It owns and operates a branch line the jury.

called the Marion branch, running from its [Ed. Note. For other cases, see Trial, Cent. main line at Columbia Falls through KalisDig. $$ 334, 335; Dec. Dig. Om 140.]

pell, Batavia, and Kila to Marion, and from 11. MASTER AND SERVANT 295-INJURY TO this branch a shorter branch or tributary SERVANT-ASSUMPTION OF RISK-CHOICE OF

connects Kalispell with Somers. This Marion WAYS-INSTRUCTIONS. In an action for the death of the conductor

branch, with its tributary, lies wholly withof a work train, an instruction on assumption in Montana, but it is the source as well as of risk based on the choice of ways was prop- the ultimate destination of both interstate erly refused, where it permitted the decedent's choice of ways to be judged in the light of the

and intrastate traffic. The decedent was event, and did not indicate that the choice must killed while in charge of one of defendant's have been of a method obviously dangerous or work trains; his particular duty with such more dangerous than its alternative.

train being to load ties from various places [Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 1168-1179; Dec. Dig. Om

along the branch where they had been left 295.)

by the persons who had cut the same, and

to take the cars so loaded to Kalispell or Appeal from District Court, Flathead | leave them at Kila or other convenient sidCounty; J. E. Erickson, Judge.

ing. From such places of deposit the ties Action by J. C. Alexander, administrator

would later be taken by other trains to the of the estate of John P. Hall, deceased,

defendant's. tie-treating plant at Somers, against the Great Northern Railway Com

whence, after treatment to increase their pany. From judgment for plaintiff, defend durability, they would be sent to various ant appeals. Affirmed.

points upon the main line or branches of the See, also, 149 Pac. 1080.

appellant or its affiliated companies within Noffsinger & Walchli, of Kalispell. and or without this state as might be required Veazey & Veazey, of Great Falls, for ap- for construction, renewals, or repairs. pellant. Logan & Child, of Kalispell, and

Did the work of the decedent constitute Walsh, Nolan & Scallon, of Helena, for re

employment in interstate commerce? The spondent.

answer may be found, we think, in the decisions of that great tribunal whose pro

nouncements are final in matters of this SANNER, J. On October 11, 1911, John

| kind, and particularly in Pedersen v. DelaP. Hall, a conductor in the service of the

ware, L. & W. R. Co., 229 U. S. 146, 33 Sup. Great Northern Railway Company, was kill

Ct. 648, 57 L, Ed. 1125, Ann. Cas. 1914C, 153, ed near Batavia, in Flathead county, this

cited by the respondent, where the following state, as the result of a derailment of his

criterion is suggested: 1 caboose consequent upon a collision of his

"Was that work being done independently of train with a cow. This action, brought to

the interstate commerce in which the defendant recover for his death, resulted in a verdict I was engaged, or was it so closely connected

Om For other cases see same topio and KEY-NUMBER in all Key-Numbered Digests and Indexes

therewith as to be part of it? Was its perform-, court might be in order. In such a situaance a matter of indifference so far as that | tion, however, the defendant must assert commerce was concerned, or was it in the nature of a duty resting upon the carrier ?”

its right, under penalty of waiver, by filing

a petition to remove at the first opportunity. Interdependence to some extent pervades

Powers v. Railway Co., 169 U. S. 92, 18 Sup. all activity, and it is true, for instance, that

Ct. 264, 42 L. Ed. 673; Kansas City, etc., Ry. an interstate railroad cannot perform its

Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. functions without fuel or without ties; but

306, 34 L. Ed. 963; Golden v. Northern Pac. this does not justify the inference that per

Ry. Co., 39 Mont. 435, 104 Pac. 549, 34 L sons hired by it to mine coal or to cut ties

R. A. (N. S.) 1154, 18 Ann. Cas. 886; Demp are employed in interstate commerce. Dela

ster v. Oregon Short Line R, R. Co., 37 Mont. ware, L. & W. R. Co. v. Yurkonis, 238 U, S.

335, 96 Pac. 717. This the appellant did not 439, 35 Sup. Ct. 902, 59 L. Ed. 1397; Bravis

do; instead, and with the knowledge of its v. Chicago, M. & St. P. Ry. Co., 217 Fed. 234,

right to have the cause removed, it submit133 C. C. A. 228. In the chain of events by

ted to the jurisdiction of the state court in which the standing timber should be connect

which the trial occurred, by seeking a dised with the appellant's roadbed the deced

missal for variance as well as for failure ent was one step nearer to the latter than

| to show the breach by it of any legal duty the man who furnished the ties; but consid

to the decedent under either state or federal ering that the decedent had nothing to do

law. with the ties further than to load them upon

[4, 5] 2. The negligence charged in the cars, leaving the cars so loaded at convenient

complaint is the failure of appellant to fence sidings to be removed by others, that the

its track at and near the place where Hall ties so loaded were not to be marketed or

was killed, and thus to exclude cattle, the used, but were to be taken to Somers and

presence of which upon the track was likely made ready for use, that no one knew when,

to cause derailment of its trains, and in perwhere or how they would ultimately be used,

mitting its trains to be run over said track and that, so far as exigency or duty is shown,

while the same was so unfenced. The ques. the appellant's interstate commerce might go

tions raised upon the pleadings and the evi. on unaffected whether these ties were gath

dence are whether, under any circumstances. ered or not, the connection of his work with

a railway company can owe any duty to its such commerce still appears to have been

train operatives to shield them from whatrather remote. No case has been called to

ever danger the presence of cattle upon its our attention which in its facts closely re

track may cause, by fencing such track, and, sembles the one at bar; but in Illinois C.

if so, whether facts sufficient were made to Ry. Co. v. Behrens, 233 U. S. 473, 34 Sup.

appear in this case to establish prima facie Ct. 646, 58 L Ed, 1051, Ann. Cas. 1914C, 163,

the existence of such duty. The appellant it was held that employment in interstate

vigorously denies that any such duty ever commerce was not shown where the fireman

exists, while the respondent contends that of a switch engine operating within the city

such duty may exist, and in the present inof New Orleans was killed while moving

stance did exist, not in virtue of the fencing cars loaded with intrastate freight, notwith

statute of this state (Rev. Codes, § 4308). standing that his general duties had to do

which was enacted for the benefit of stockwith cars of all classes, often commingling

owners (Nixon v. Montana, etc., Ry, Co., 50 those loaded with interstate freight and

Mont. 95, 145 Pac. 8), but in virtue of appel. those empty or loaded with freight of an

lant's common-law obligation to exercise orintrastate character, or rapidly passing from

dinary care to furnish its employés with a one class to the other. Accepting this as

reasonably safe place in which to work. As authoritative, we are impelled to the view

regards the general proposition, the authorithat the decedent was not at the time of his

ties are by no means harmonious, but we death employed in interstate commerce, and

think the better reasoning supports the retherefore the action was not sustained under

spondent's position. Speaking broadly, the the federal Employers' Liability Act.

obligations of a railway to its employés are [3] It does not follow from this however,

not different in principle from those of other that the appellant was or is entitled to a

masters to their servants, and when the place reversal. It is now settled that, where the

of work to which the servant is detailed is complaint declares under the federal law,

: the track or roadway of the master, the duty failure to sustain it under such law is not

404 to exercise reasonable diligence to keep it fatal, but recovery may still be had under

safe should and does arise. Indeed, little, it the state law, if the pleadings and proof are

e any, difficulty is found in the application of sufficient under the state law. Wabash R.

this rule where defects in the track or roadR. Co. v. Hayes, 234 U. S. 86, 34 Sup. Ct.

way or inanimate obstructions are involved, 729, 58 L. Ed. 1226; Jones v. C. & 0. Ry.

and we cannot see why any should arise Co., 149 Ky. 566, 149 S. W. 931. We recall

from the mere fact that the obstruction is but one respect in which a defendant can

animate be seriously prejudiced in such a situation,

“Unless a railway track is fenced, cattle are and that is where, by reason of diverse citi

liable to stray upon it from adjacent fields and

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