In Error to the Circuit Court of the United States for the Western Division of the Western District of Washington.

Action by Emil R. Schoeffler against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant brings error.

The plaintiff in error at its shops in" Tacoma had six tracks which were used exclusively for the purpose of repairing cars. The tracks all turned off from a track called the “house track.” The switches for each track were provided with locks, the keys of which were carried by the foreman and the assistant foreman of the repair work. Tracks 1 and 2 were used for light repairs. The remaining four tracks were used for heavy repairs. Each afternoon the cars on one of the light repair tracks and on one of the heavy repair tracks would be “pulled,” in the following manner: A crew in charge of a switch engine would come up on the house track and blow a whistle for the foreman of the repair tracks. 1-Ie or his assistant would unlock the switch leading to the track which was to be pulled, but, before doing so, he would give notice to all workmen engaged in working on the cars on the track that the cars were to be pulled, so that they might get out of the way. When the switch was unlocked, the engine crew would come in and couple together the cars on the repair track, and pull them out onto the house track, and there the string of cars would be broken up by taking the cars which were fully repaired and placing them on the transfer track, then kicking back on the repair track such cars as needed further repairs. The engine crew would then pull the cars on one of the light repair tracks in the same manner. After kicking the cars back on the repair track, the engine crew would then go in with their engine and space the ears on that track, leaving them in groups of from two to four, with sufficient space between each group for the ear repairers to work. The engine crew would then leave, and the foreman or his assistant would lock the switch, and no engine or cars could enter upon the track until the switch was again opened. The defendant in error began working as a car repairer on these tracks on • October 3, 1908, and continued until he was injured on July 31, 1909. In the afternoon of that day he was working on track No. 5. About 5 o’clock he desired to use a jaekserew. There were from 50 to 100 men in the yards repairing cars, and there were only six or seven jackscrews. When the men were through with using the jack-screws, they left them by 3 he side of the track wherever they might be. The men were obliged continually 1o cross the tracks for the purpose of securing jackserews. The defendant in error, remembering that a jackscrew had been left by the side of track No. 3, started to get it. To do so he had to cross track No. -3. There were then about 34 cars on that track, and they were separated or '‘spotted,” as was the term in use. Nearest the switch there were two cars, then there was an open space of about 36 feet, then there were three cars, then an open space of 36 or 18 feet, then three cars again, and another open space, then some more cars. While crossing the last-mentioned open space on track No. 4, he was struck and injured by the moving of the cars. The evidence was that the men engaged in repairing knew it was safe to cross a track when it was spotted; that is to say, when they saw the cars separated in groups of twos and threes, with spaces between them. They knew that the cars were so grouped for the purpose of repair, and that the switch was locked, and would remain locked until the engine crew came on the track to couple the cars together and pull them out. The defendant in error, from where he was at work, and where he was when attempting to cross track No. 4, could nor, see the switch, nor the switch engine coming in. The cars had been in the same position since 12 o’clock, and the defendant in error and another witness testilied that there! had been no movement on the track since the morning. While the track was in this condition the foreman in charge of the repair track, who had control of the movement of cars on those tracks, had unlocked the switch, and cars were shunted in on track No. 4 without notice or warning to the defendant in error. The following rule was in force at the repair tracks: “All repair and shop tracks shall be locked with private locks by men in charge of the repair tracks or shops and no one shall be allowed to unlock switches except the men in charge of repair tracks or shops.” There was dispute in the testimony as to whether or not it was customary to give any notice that a track was to be pulled or disturbed in any way. The defendant in error testified that, there was such a custom. The jury found for the defendant in error on the ground of the negligence of the plaintiff in error in failing to furnish him a safe place in which to work.