
    AUGUSTA ARMBRECHT, ADMINISTRATRIX, RESPONDENT, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, APPELLANT.
    Argued March 19, 1917
    Decided June 18, 1917.
    Tn an action under the Federal Employers’ Liability act, it was open to the jury to infer from the evidence that the plaintiff’s intestate was engaged in removing snow from the tracks, both interstate and intrastate, of a railway; that the work had been only temporarily suspended; that the. men were told by the boss to go in a covered car as it was raining and freezing at the time; that to do so, they walked along the tracks because they couldn’t go otherwise, and decedent was struck and killed by a fast passenger train considerably behind time; that there was a failure to warn him that the passenger train was behind time and might be expected. Held, that it was for the jury to say whether the decedent was engaged in interstate commerce, whether there was negligence on the part of the railway company, and whether the decedent had assumed the risk.
    On appeal from the Hudson Circuit.
    For the appellant, Maximilian M. Stallman (Frederic B. Scott on the brief).
    For the respondent, Alexander Simpson.
    
   The opinion of the court was delivered by

Swayze, J.

This is an action under the Federal Employers’ .Liability act. 'There was evidence from -which the jury-might infer that the deceased was engaged in removing snpw from tlie tracks, both intrastate and interstate, at the Port Morris yard; -that after working for some time it became necessary to back .flic work train east gome four miles to Chester Junction for the purpose of getting hack to the Port Morris yard on the westbound tracks; that more snow was to be removed; that the train was held some mininos at Chester Junction; that the men were told by tlie Hiose” to so in the covered car as it was raining and freezing at the lime; that to do so, they walked along the tracks because they couldn’t go otherwise; that a fast passenger train came along considerably behind time, struck the men on the track and killed plaintiff’s intestate; that there was no warning that it was behind time and might he expected.

The trial judge left it to the jury to say whether the deceased was engaged in interstate commerce and whether there was negligence on the part of the defendant. We think the evidence required him to take this course. The fact that there was a temporary cessation in the work of removing snow, and a temporary rest from work, did not require a finding that the decedent at the moment of the accident was not engaged in interstate commerce; nor do wo think that the fact- that lie was about to take refuge from the storm in the covered ear makes any difference. That was a mere incident of the employment which did not thereby change its general character. The work was the removal of snow from railway tracks, interstate as well as intrastate; it had merely suffered a temporary interruption due to the necessities rU traffic on a busy railway, and in some degree to the incleim ency of the weather. It is enough to refer to New York Central Railroad v. Carr, 238 U. S. 260, and to Shanks v. Delaware, Lackawanna anid Western Railroad, 239 Id. 556, as showing the line of cleavage between the cases. Other cases are cited in the opinion in the Shanks case. What we have said is enough to distinguish the present case from Minneapolis and St. Louis Railroad Co. v. Winters, 242 Id. 353, and to bring it within the principle of Louisville and Nashville Railroad Co. v. Parker, Id. 13. Other recent cases on one side or the other of the line are Erie Railroad Co. v. Welsh, Id. 303; Illinois Central Railroad Co. v. Peery, Id. 292.

The question of negligence is more difficult. The failure of the engineer of the passenger train to blow a whistle until too late for any good .does not indicate negligence, since lie could not be-supposed to anticipate that men would lie. walk'ingon the track at that point. But we think the failure to warn the men that the passenger train was behind time and might be expected, is sufficient to sustain the verdict, since the jury might have believed the evidence that the boss told the men to go to the covered car and that there was. no way to go except along the track. This disposes also of the question of the assumption of risk, bio doubt a railroad employe, or anyone else, assumes the risk of walking on the track, but it does not follow that he assumes the risk of being struck by a train which lie may well think had gone by. The request to charge did not embody all the pertinent facts. We find it difficult to understand what the judge had in mind when he told the jury that they might take into consideration the speed of the passenger train in considering the other charges of negligence, but as he had just charged that the speed of tiie train did not present a question of negligence, because the company liad the right to exercise its judgment-in that respect, we think no harm could have been done the defendant by that portion of the charge which is made a ground of appeal.

The judgment is affirmed, with costs.

For affirmance—The Chancellor, Garrison, Swayzk, Bergen, Mintprx, Kalisch, Black, White, Heppenileimer, Williams,-Taylor, Gardner, JJ. 12.

For reversal—None.  