Owens

A money judgment was awarded Bertha A. Owens in the District Court for damages resulting from the injury and death of her husband, Leyle F. Owens, while performing services as an employee of Union Pacific Railroad Company, a corporation, in an action brought under the Federal Employers’ Liability Act, 45 U.S.C.A. §§ 51-59 . This court upon appeal held that as a matter of law decedent Owens had assumed the risk in the activities which led to his death and reversed upon this premise, 129 F.2d 1013 . The Supreme Court found this to be error aiid reversed and remanded to this court, 319 U.S. 715 , 63 S.Ct. 1271 , 87 L.Ed. 1683 . The facts need not be repeated here.

We thought it clear that Owens assumed the risk as a matter of law and reversed without going further. Many years before the accident with which this action is concerned the company had promulgated and had never withdrawn its Rule 30 which is as follows: “Engine bell must be rung when an engine is about to move and when approaching or passing public crossings at grade, stations, tunnels and snowsheds.”

Our theory was that since the evidence was all one way to the effect that Rule 30, as to switching in the yard, had not…