has constitutional power to pass it, and that there is the wise precedent of the case of the statute providing for the court-made equity rules.

To any objection to its constitutionality, it may be said that in the very beginning the Supreme Court of the United States gave practical definition of the powers granted in the Constitution establishing courts of equity by adopting the English equity rules obtaining at the time of the ratification of the constitution. In the progress of the country, these rules, in many respects, became unsuited to our modern conditions. But the well known conservatism of the Supreme Court prevented, at least in some degree such modernization as was demanded by the changed conditions wrought during the flight of years. It is familiar to you that congress declared the Supreme Court should have power to create or formulate rules and generally to regulate the whole practice in equity and that rules have accordingly been made by that august tribunal and these rules became effective February 1, 1913, and they now constitute the written adjective law of the federal equity courts.

Because of the failure of the Conformity Statute and the bad effects of an antiquated, inadequate and unscientific procedure for law cases, the idea for this bill was originated by the American Bar Association and with the co-operation of eminent lawyers (a committee of that body), this bill was written and it was afterwards introduced into congress. It has received much consideration at the hands of the respective committees on the judiciary of the Senate and House of Representatives, and it has been favorably reported to the House. The respectful insistence is that

8

(8) By Mr. Webb, Chairman of the Judiciary Committee.

That congress can confer the duty upon the Supreme Court to establish rules of procedure for the district courts was settled almost at the beginning. It is not to be forgotten that Chief Justice Marshall said nearly a hundred years ago that "it will not be contended that congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But congress may certainly delegate to others, powers which the legislature may rightfully exercise itself. Without going further for examples, we will take the legality of which counsel for the defendant admit. The 17th section of the judiciary act, and the 7th section of the additional act, empower the courts respectively to regulate their practice. It certainly will not be contended, that this might not be done by congress. The courts, for example, may make rules directing the returning of writs and processes, the filing of declarations and other pleadings, and other things of the same description. It will not be contended, that these things might not be done by the legislature, without the intervention of the courts; yet it is not alleged that the power may not be conferred on the judicial department." Almost synchronizing with Chief Justice Marshall's utterance, Mr. Justice Thompson, speaking for the court, said that "Congress might regulate the whole practice of the courts, if it was deemed expedient so to do: but this power is vested in the courts; and (re

(9) Wayman v. Southard, 10 Wheat. 1, 41. (10) U. S. Bank v. Halstead, 10 Wheat. 51. See also Chick v. U. S., 195 U. S. 58; Nolten v. Moore, 178 U. S. 95; and Cap. Trac. Co. v. Hoff, 174 U. S. 1; and Vicksb. R. Co. v. Putnam, 118 U. S. 345

FEDERAL EMPLOYERS' LIABILITY АСТCONTRIBUTORY NEGLIGENCE.

BRIGHTWELL v. LUSK et al.

Kansas City Court of Appeals. Missouri. June 12, 1916. Rehearing Denied Nov. 27, 1916.

189 S. W. 413.

Under the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]), no degree of negligence of an injured servant, however gross or proximate as a matter of law, can bar a recovery.

JOHNSON, J. This is an action for personal injuries founded on the federal Employers' Liability Act. Defendants are the receivers of the St. Louis & San Francisco Railroad Company, an interstate carrier, and at the time of his injury, February 21, 1914, plaintiff was the foreman of a gang of section men employed in repairing a main track in defendants' switch yards in Kansas City. The men were raising low joints in the track and had been thus employed during the day. In this operation they raised the track on jacks, which supported it while they removed the soft material and filled the depression with cinders. Then they lowered the track, removed the jacks, and passed on to the next low joint. During the afternoon (the injury occurred at 4:30 p. m.) a switch engine working in that part of the yards had been run two or three times over the track where the repairs were being made. This track was called the "middle yard lead" and ran north and south. The engine worked in an area north of the point where the track gang was working, but occasionally it ran south on the "lead" over and beyond that point, and then back again in a few seconds.

The engineer knew low joints were being raised, that during that operation the track was elevated and supported by track jacks, and that it would not be safe to run the engine over such place until the track had been lowered and the jacks removed. Just before the injury the engine approached on that track from the north at a time when the section men were working at a low joint and the track was raised. The engineer introduced as a witness by defendant, testified:

"I don't know how many times we backed up there, but several times, and this one particular time when he was hurt we were backing up and I did not was not sure whether the track was clear for us to go back or not, so I kept backing up until I got fairly close enough that I thought

we ought to know whether to stop or not, and he (plaintiff) stepped over between the tracks, and I got no signal (from plaintiff to stop), so I whistled."

We quote this testimony at this time because of its corroboration of plaintiff's evidence which tends to show that this is not an instance where the engineer relied upon the presumption of a clear track, but is one where he anticipated the track might be fouled, and therefore was bound not to proceed without a signal or unless he knew the track was clear. Plaintiff testified, but afterward the testimony was stricken out on motion of defendant, that when the engine first ran over his place of work he said to the engineer, after experiencing difficulty in attracting his attention: "Now, when you are backing up here on this track always watch behind for a signal, because I am working right back here," to which the engineer replied, "All right."

In our consideration of the demurrer which defendant insists should have been given, that testimony is omitted. Apart from it, the evidence shows beyond question that this was a place where the engineer, not entitled to indulge in the presumption of a clear track, was bound to keep a lookout for a signal from plaintiff. The evidence of plaintiff tends to show that as the engine approached, tender first, plaintiff crossed over to the east side of the track where the engineer could see him, and repeatedly gave the signal to stop. He observed the engineer was looking backward at the "drag" of cars and did not see him. In endeavoring to attract his attention plaintiff reached a spot from 10 to 15 feet north of the low joint and near the west rail of the next track east, which was called the "east yard lead." This track ran parallel to the middle yard lead, and plaintiff states the distance between them was 8 feet, which would allow a clear space of nearly 4 feet in which one might stand while trains were passing each other on the two tracks.

The witnesses for defendants give the distance between the tracks at from 10 to 14 feet. Plaintiff's evidence on this issue is substantial, and for the purposes of the demurrer we must presume that the two tracks were 8 feet apart. While plantiff was signaling and shouting to the engineer and, as stated, was near the east yard lead, a freight car, which another switch engine operating in the east yard had shunted on that track, approached from the south and struck plaintiff on the shoulder, knocked him down, and ran over his right arm. There was:

track cannot be allowed to shield the defendant against liability where the act in question did not proceed from such presumption but with knowledge of the actor-the engineer-that the track ahead was not clear, and that it was necessary to keep a lookout. As we pointed out in the Hardwick Case, the rule in question does not mean that the track workers are entirely outside the pale of protection, but only that unless there is something in the situation to call for watchfulness and care on the part of the engineer he is not required to anticipate that employes whose business is to keep themselves and their work out of his way, nevertheless, will require his attention. Where, as in the present case, the engineer knows that the track ahead is obstructed by the track men and their operations upon it, in a manner to endanger lives and property if care is not observed, he has no right to indulge in any presumption of a safe track, but must advance cautiously, keeping a lookout for signals to stop. The engineer in his testimony conceded that such was his duty, and asserted that he was in the full performance thereof, but that plaintiff was inattentive. Plaintiff's evidence, which we must accept, tends to show that the engineer was not keeping a lookout, but was running the engine regardless of warning signals, towards the defective place. Clearly the evidence accuses the engineer of a negligent breach of duty towards plaintiffthe duty to keep a lookout for his signal to stop and to obey such signal when given.

But it is argued that the engineer had no reason to anticipate that his negligent breach of such duty would or might result in plaintiff's being struck by a moving car on the parallel track, or even that plaintiff might be led thereby into taking a position near that track. The doctrine is recognized in this state that where an injury cannot reasonably be anticipated and would not have happened unless under exceptional circumstances, it is not negligence to fail to take precautionary measures to prevent it, although if taken the injury would not have resulted. Brewing Ass'n v. Talbot, 141 Mo. 674, 42 S. W. 679, 64 Am. St. Rep. 538; Moore v. Lead Co., 125 Mo. App. loc. cit. 396, 102 S. W. 616; Monday v. Railroad, 136 Mo. App. 696, 119 S. W. 24; Foley v. МсMahon, 114 Mo. App. 442, 90 S. W. 113.

We think the facts and circumstances in the present case will support a reasonable conclusion that the injury was a natural result of the negligence, and therefore one that the

as a natural and probable consequence. The relative narrowness of the space between the tracks, the imperative necessity of attracting the engineer's attention, which caused plaintiff to move to the best vantage point, and the practice in the yards of running detached cars on the east track without an attendant to give warning, were facts from which the inference of danger to plaintiff from the probable cooperation of the active ingredients of such situation would and should have been drawn by a reasonably careful person in the position of the engineer. The court did not err in refusing to direct a verdict for defendants.

We have carefully considered the objections to the rulings on instructions, and find them free from prejudicial error.

We cannot say as a matter of law that the verdict was excessive. Plaintiff was 47 years of age, and was earning $55 per month. He lost his right arm and has been almost completely incapacitated from earning a livelihood. The questions of whether or not he was guilty of contributory negligence and, if so, to what extent such negligence should be allowed to diminish his damages, were issues of fact which were referred to the jury in proper instructions. We have no right to diminish the recovery on the ground of contributory negligence, and in aid of the verdict must assume, if necessary, that the jury exonerated plaintiff from the imputation of negligence. On such hypothesis, an assessment of $5,000 for the loss to a workingman in the prime of life of his right arm cannot be considered as transgressing the bounds of the jury's discretion.

The judgment is affirmed. All concur.

NOTE-Contributory Negligence Under Federal Employers' Liability Act. The act referred to provides that: "The fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employe." Does this mean that though the employer may be wholly without fault as matter of law, yet the employe shall not be wholly barred from recovery? In Norfolk & W. Ry. Co., 229 U. S. 114, 122, 33 Sup. Ct. 654, 57 L. ed. 1096, it was said that: "Where the causal negligence is partly attributable to employe and partly to the carrier, he shall not recover full damages, but only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both." Under this the sine qua non of recovery against the carrier is that he must be partly responsible for the