Tomas

In the fore-moon of November 19,1927, while working as a section hand in the repair of appellant’s railroad track, appellee was caught underneath a failing tree and suffered severe injury. Appellant was engaged as a common carrier in interstate commerce, and hence in bringing this suit to recover damages appellee invoked the provisions of the Federal Employers’ Liability Act (45 USCA §§ 51-59). The verdict was in his favor, and from an appropriate judgment thereon the defendant prosecutes this appeal. '

The record discloses no objections or exceptions respecting the introduction of evidence, or the instructions given or refused, other than the refusal to grant appellant’s request that a verdict be directed in its favor. Hence the only question for our consideration is whether the evidence is such that as a matter of law plaintiff is not entitled to recover. Appellant asserts two propositions: First, that the evidence was insufficient to establish any negligence upon its part; and, second, that appellee assumed the risk. It would seem that the positions now taken by the parties are measurably inconsistent with certain allegations of their pleadings, but, inasmuch as upon both…