POSEY et al. v. TEXAS & P. RY. CO., 102 F. 236

PAEDEE, Circuit Judge, after stating the facts as above, delivered the opinion of the court. From the view we taire of the case, it is only necessary to consider the first assignment of error, which complains of the peremptory instruction of .the trial judge'to the jury-to find for the defendant. The evidence’ on both sides is all contained in the record, and we have di-" gested it.

The evidence showed th'at' thé deceased’, John Posey, an' employe of the defendant, was on the defendant’s train, deadheading back from Big Springs to Toy ah; that his so being on the train, while in violation of the rules of the company, was in accord with custom and usage in regard to employes situated as Posey was at the time, and while so on the train he was not subject to the performance of any duties, and therefore was not a fellow servant of the other employes of the defendant, who were operating the train.

There was evidence tending to show that the employes of the defendant actually operating the train were careless in switching at Barstow, in that the connections were made with unnecessary violence; but it is doubtful whether there was sufficient evidence to warrant the finding, as an affirmative fact, that tlie defendant was guilty of negligence in any way contributing to the death of John Posey.- The learned counsel for the plaintiff in error very strenuously contend that the evidence warranted the finding by the jury that John Posey was a lawful passenger on the defendant’s (rain, and that tiie defendant was guilty of negligence which caused the death of said John Posey, and that there was evidence on these points justifying the submission of them to the jury.

Conceding this to be the case, on this review it still remains that the peremptory instruction given by the judge to find for the defendant was correct, because the said John Posey was himself guilty of negligence which contributed directly to the accident resulting in his death. As a passenger on the train, or even as an employé of the defendant, going from one place of duty to another, but not engaged in operating the train he was traveling on, his place on the train was in the caboose.

It is perfectly clear that, if he had been in the caboose, he would not have suffered any serious injury from any of (he unnecessary violence used in switching at Barstow. The evidence is undisputed that from Big Springs to Barstow, the said John Posey rode upon the engine, and that when the train reached Barstow, between 2 and 3 o’clock in the morning, the said Posey, learning that switching was to be done at that place, left the engine, with the avowed purpose of going to the caboose.

What route lie took, and whether lie was run over and killed in crossing between the cars, or in endeavoring to climb on some car or the caboose, does not appear. What is certain is that, as a passenger or quasi passenger on the train, and while the train was switching in the nighttime at Barstow, he was gniliy of negligence in going around, about, or through the train.

We note that there was some evidence tending to show that he was standing by or sitting on the railing of the platform of the caboose at the time a coupling was being made, and that by the coupling he was knocked over onto the track, where three cars passed over him. We think this merely conjecture, but, if it be taken as a fact, it is siill dear that John Posey was in fault, contributing to his own injury, because the place was dangerous, particularly with reference to the switching operations going on, and he voluntarily took it, and with it all tne risks and damages accompanying.

The judgment of the circuit court is affirmed.