
    HUMPHREYS v. DAVIS, Agent.
    No. 3878.
    Decided July 21, 1923.
    (217 Pac. 693.)
    Master and Servant — Failure to Sound Warning op Engine’s Approaching on Skeleton Track at Ash Pit Held not Proximate Cause op Injury to Ash Pit Man. Where .the skeleton track heside an ash pit was not designed to stand or walk on, and no person could reasonably he expected to be on it, and deceased, an ash pit man, had been warned to keep off, and the only conclusion from the evidence was that he got up on the track from the pit immediately in front of the approaching engine and after the tank obstructed the hostler’s view, it could not be said that the failure to ring the bell or blow the whistle constituted negligence or was the proximate cause of the accident.
    Appeal from District Court, Third District, Salt Lake County; M. L. Ritchie, Judge.
    Action by Thomas H. Humphreys, administrator of the estate of John ~W. Scheidegger, deceased, against James E. Davis, as Agent of the President of the United States. Judgment for defendant, and plaintiff appeals.
    AFFIRMED.
    
      J. I). Sheen and Clio C. Tanner, both of Salt Lake City, for appellant.
    
      George II. Smith, J. V. Lyle, and R. B. Porter, all of Salt Lake City, for respondent.
   CHERRY, J.

Plaintiff’s intestate, John W. Scheidegger, while employed in interstate commerce by the Director General of Railroads, was run over and killed by a locomotive on February 12, 1920, at the cinder pit in the yard of the Oregon'Short Line Railroad at Kemmerer, 'Wyo. This action was brought by. his representative to recover damages for his death, under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665).

The deceased was 23 years old, and had been employed as an ash pit man for three months next previous to his death. The cinder pit, where the accident occurred is described as a standard double cinder pit, 50 feet long, consisting of a depressed track running from the level of the ground into an excavation. Over this track ears are run into the pit to be loaded with cinders. On each side of and elevated above the depressed track is a cement platform 6 feet in width on which the ash pit man works. The platforms are about on a level with the floor of a cinder car when standing in the pit. At both ends of the platform there are concrete steps, which are the only means designed for entering or leaving the pit. On the outside of the platforms, on a level with the surface of the yard, and about 3y2 feet higher than the platforms, are skeleton tracks, on which engines are placed when ashes are to be dumped into the pit. The skeleton tracks are supported by concrete pillars, sufficiently far apart to permit the ashes to be shoveled from under the skeleton tracks, the rails of the skeleton tracks are kept in place by. steel I-beams, about three inches wide at the top, and about one foot below the rails. The skeleton tracks are not designed to walk or stand upon. The duty of the ash pit man is to stand on the platform and shovel the ashes from under the skeleton track into the ash car. The pit is so constructed and such tools and appliances are supplied that there is no necessity for the ash pit man to go over or between the rails of either skeleton track.

At the time of his employment deceased .was instructed as to his duties and place of work, and particularly warned of the danger of, and cautioned to avoid getting on, the skeleton tracks. A few days later he was seen working on the tracks when he was again told of the danger and admonished to keep off. He replied, ‘ ‘ I know it; I won’t do it any more. ’ ’

The circumstances of the accident, as disclosed by - the plaintiff’s evidence, were, in substance, that the deceased went to his work at 7 a. m. on February 12, 1920, and was killed an hour later. A few minutes before the accident the hostler walked past the ash pit and saw the deceased working on the platform in the cinder pit. The hostler went to engine 535, a short distance away, and backed it slowly on the west skeleton track to the pit for the purpose of dumping ashes into the pit. He testified that he kept a constant lookout but did not see deceased. A stationary fireman, looking from a distance of 50 or 60 yards, saw deceased a few minutes before the accident working on the platform in the pit. He looked again but could not see deceased and turned away for a few seconds, when looking again he saw deceased on tbe I-beam between tbe rails, of tbe west skeleton track in tbe act of raising up, facing tbe engine, with tbe engine directly upon him. He made an effort to jump. His foot apparently slipped causing him to fall over backwards on tbe west rail where one wheel of tbe tank passed over bis body.

Two brakemen on a passing freight train testified that a few seconds before tbe fatal accident they saw deceased on tbe platform in tbe pit shoveling ashes. No one saw deceased on tbe track until tbe tank of tbe engine was immediately upon him.

Tbe hostler testified positively that before backing up on to tbe ash pit be looked and saw tbe track was clear, got up on tbe engine, rang tbe bell, and went back slowly. After getting started be blew tbe whistle three times while backing up. He drifted slowly and just about stopped when be beard somebody “boiler.” He stopped instantly and got off tbe engine and found deceased under tbe back part of tbe tank.

An engineer testified that just before going into the boiler room, from which be immediately thereafter witnessed tbe accident, he heard a whistle which sounded like the whistle on engine 535, although be was not positive of tbe engine from which tbe whistle came.

Plaintiff produced other witnesses on tbe question of whether signals were given of tbe approach of tbe engine at the time of tbe accident, one of whom stated that he was on another engine 150 yards away and that no bell was rung or whistle blown on tbe engine moving to tbe cinder pit that be could see or hear. He stated that tbe signals might have been given but that be was looking towards tbe engine and he did not bear or see them. He admitted on cross-examination that be stated shortly after tbe accident, “I couldn’t tell whether or not be rang the bell, because there were four or five bells ringing at that time.” The other witnesses on this subject testified that they had no recollection of bearing any signals given, but could not say none were given as they were not paying attention to tbe matter. At the time of tbe accident, numerous other engines with bells ringing were moving about tbe yards in tbe vicinity of tbe cinder pit.

At tbe conclusion, of tbe evidence defendant moved tbe court to direct a verdict for defendant upon tbe grounds that no negligence bad been shown, and that under tbe evidence tbe deceased bad, as a matter of law, assumed tbe risk of bis injury and death. Tbe motion was granted, and from tbe judgment entered on tbe verdict plaintiff appeals.

Two main questions are presented and argued, viz: (1) Was there sufficient evidence of defendant’s negligence to be submitted to tbe jury? and (2) Did tbe evidence establish, as a matter of law, that deceased assumed tbe risk of tbe accident which resulted in bis death ?

Tbe first question must be answered in tbe negative, which disposes of tbe appeal and of tbe necessity of. considering tbe second question.

Tbe only ground of negligence relied upon is tbe alleged failure of tbe hostler to give warning of the approach of tbe engine. Tbe evidence on this subject was tbe affirmative and positive evidence of tbe hostler, partially corroborated by another witness, that tbe bell was rung and tbe whistle blown .when tbe engine started. Other witnesses testified that they beard no signals given, but could not say none were given.

Under tbe rule announced in Jensen v. O. S. L. R. R. Co,, 59 Utah, 367, 204 Pac. 101, and cases cited, it is extremely doubtful if tbe evidence that no signals were given was sufficient to be submitted to tbe jury, but tbe point is not controlling and need not be decided.

Tbe track in question was not designed to stand or walk upon. No person could reasonably be expected to be upon it. Deceased bad been twice warned to keep off of it. Immediately prior to moving tbe engine on tbe pit tbe hostler saw deceased at work on tbe platform below tbe track in a safe place. Tbe deceased knew from the very nature of tbe situation that engines- would frequently move to and from tbe pit on tbe skeleton track. Before starting tbe hostler looked and saw tbe track was clear. While backing be kept a constant lookout. His view was unobstructed, except for tbe short distance directly in front of tbe tank of tbe engine. He saw no one. The only possible conclusion is that deceased got up on tbe skeleton track from tbe pit, immediately in front of tbe approaching engine, and after the tank bad obstructed tbe hostler’s view. Tbe engine was moving very slowly. Tbe deceased was facing tbe engine and attempted to jump, showing that be saw it. In tbe vicinity were numerous other engines moving and bells ringing. Under these circumstances it cannot be said, if tbe facts were proved, that tbe failure to ring tbe bell or blow the whistle constituted negligence or was tbe proximate cause of the accident. Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758; N. & W. Ry. Co. v. Gesswine, 144 Fed. 56, 75 C. C. A. 214; Connelley v. Penn. R. Co., 201 Fed. 54, 119 C. C. A. 392, 47 L. R. A. (N. S.) 867; Willever v. D., L. & W. R. Co., 87 N. J. Law, 348, 94 Atl. 595; Ginnochio v. I. C. R. Co., 155 Mo. App. 163, 134 S. W. 129; Gabal v. St L. & S. F. R. Co., 251 Mo. 257, 158 S. W. 12; Precodnick v. Lehigh Valley R. Co., 74 N. J. Law, 566, 65 Atl. 1047; Jones v. Virginia R. Co., 74 W. Va. 666, 83 S. E. 54, L. R. A. 1915C, 428; C., R. I. & P. R. Co. v. McIntire, 29 Okl. 797, 119 Pac. 1008; Hines v. Pershin (Okl. Sup.) 215 Pac. 599.

Judgment affirmed.

WEBER, C. J., and GIDEON and THURMAN, JJ., concur.

FRICK, J., did not participate herein.  