STATE TRUST CO. v. KANSAS CITY, P. & G. R. CO. et al.; FORDYCE et al. v. BRADLEY, 111 F. 769

SHERBY, Circuit Judge, after stating the case as above, delivered the opinion of the court. The intervener admits that if he had stopped on the north track, and stayed there till the engine passed, he would not have been injured. He knew the movements of the engine that were to be made, and was familiar with the tracks. He attempted, he says, to reach the switch platform, so that the engine might pass him there. He should have remained in a place of safety. In walking thoughtlessly along the track, over which he knew the engine was coming, lie was guilty of culpable negligence.

He took the chances of getting to the switch platform before he would meet the engine. To quote Mr. Justice Field in Railroad Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542: “No railroad company can be held for a failure of experiments of that kind, if one chooses, in such a position, to take risks, lie must bear the possible consequences of failure.” Accepting, therefore, the theory of the intervener, that there was not a walk parallel with and near the railroad track where the accident occurred, it was culpable negligence in him to walk on the track; meeting the approaching engine, and in plain view of it.

Railroad Co. v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014. If, on the other hand, it be true, as testified to by several witnesses, that there was a plank walk near to, and parallel with, the roadbed, opposite the place where the accident occurred, the intervener should have walked on it, and not on the roadway. Assuming these witnesses to speak the truth,—and they are not positively contradicted by the intervener in his testimony,—it is difficult to understand why the intervener did not walk on the plank way, or why he did not step out on it, so as to leave the- road free for the engine to pass.

The circumstances strongly indicate that he attempted to get on the moving engine. The evidence tends to show that he fell so near the engine (if not under it) that it would not have been possible for the engineer, after his fall, to have prevénted the injury. No fair construction, we think, can be given the evidence that would free the intervener from negligence which contributed to his injuries. The judgment must be reversed, and the cause remanded, with instructions to enter a judgment dismissing the intervening petition. Reversed.