the alleged negligence was not the proximate cause of Chapman's injury, and that Chapman assumed the risk of the fall. The question which, therefore, first presents itself for consideration in this connection is, Was there any proof that an employee of the defendant moved the truck?

George Brennan, who was in the employ of the defendant as a porter, and who was working with the plaintiff in the car at the time of the accident, testified that after Chapman fell he left the car to assist him and pick him up, and that he saw a man known as "New York Slim" standing near the front of the truck near the handle, the truck having been moved out from the car door, and that he appeared to be in a dazed or stupid condition. Chapman, in his deposition, stated that after he fell Brennan, who is frequently referred to in the record as "Irish," immediately came to his assistance, and that he saw the man who had hold of the truck handle and who came with "Irish" and with "Irish" caught hold of him. Roland P. Gougeon, also an employee of the defendant, was in the express car at the time the plaintiff fell out, and stated that he assisted Brennan in picking plaintiff from the floor of the platform; that he did not know a man by the name of "New York Slim" at that time, but that he did work with him that night in the movement of the trucks and the loading of the freight. William G. Irish, who was employed by defendant as a night bill clerk, stated that he was called to the platform, where he found Chapman supported by some of the men, and that he saw Gougeon and Brennan there; that he saw "New York Slim" standing at the head of the truck, leaning against the tongue which was raised and fastened with a hook, the rear end of which was close to the door, and the head end pointed out towards the opposite track. That this man "New York Slim" was a porter, and had to do with drawing express pack

ages to the cars, drawing them in again, and helping load, and that he was working that night. George E. Cherryman, who was the depot agent for the defendant before and after the accident, but not on October 16th, stated that he knew the man known as "New York Slim," and that he called him "Al," that he had employed him as a porter, and that he was incompetent, and was hired by him after he knew it because he could not get men to stay for the amount of money paid them and the amount of work that had to be done, and that therefore he had to take anybody he could get at the time. These witnesses all gave evidence of the practice and custom of handling trucks in operation at the Detroit station; that when a truck was in front of a car door as this one was it was regarded in use by those within the car. The defendant sought to show by the pay roll that the name of the man known as "New York Slim" was Ralph Bowles and that he was not in the employ of defendant on October 16th, having been discharged October 13th. Cherryman testified, however, that he was positive that Ralph Bowles was not the name of "New York Slim," but he was unable to state what his real name was.

Considering the evidence in the light most favorably to the plaintiff's claim, we are of the opinion that the plaintiff established the elements necessary and essential to entitle him to have the case submitted to the jury. We think that such circumstances were shown as to justify inferences which bring liability within the realm of probability, and under the rule announced in the recent case of Scott v. Railroad Co., 182 Mich. 514 (148 N. W. 719), where the Michigan cases are cited, the question should be left to the jury. As was said in Schoepper v. Chemical Co., 113 Mich. 582 (71 N. W. 1081):

"Negligence, like any other fact, may be inferred from circumstances. Alpern v. Churchill, 53 Mich.

613 [19 N. W. 549]; Barnowsky v. Helson, 89 Mich. 523 [50 N. W. 989, 15 L. R. A. 33]. And, though the proof of plaintiff depended upon inference to establish the main fact, the question of whether the inference suggested by the plaintiff's theory is the correct one, or whether it was sufficiently rebutted, was for the jury. Crosby v. Railway Co., 58 Mich. 458 [25 N. W. 463]; Hagan v. Railroad Co., 86 Mich. 615 [49 N. W. 509]; Woods v. Railway Co., 108 Mich. 396 [66 N. W. 328]."

See, also, Sewell v. Railway, 158 Mich. 407 (123 N. W. 2); Maki v. Copper Co., 180 Mich. 624 (147 N. W. 533).

The testimony on behalf of the plaintiff tends fairly to show that Chapman and his helper had placed the truck load of express packages in front of the express car door; that he and his heiper had removed the express packages within the car, including the basket of bread not destined for any points upon his run; that within a minute or so thereafter he had in the ordinary and customary way, proceeded to drag this basket of bread across the car floor to the truck, expecting to find this truck in its position in front of the car door where he had left it; that he slipped out and fell to the platform; that the truck was moved away from the car door, and that immediately after his fall the employee of the defendant known as "New York Slim," or "Al," was seen standing at the head of the truck with his hand on the handle thereof, and that no other person or persons were about; that he seemed to be in a dazed condition and said nothing; that in accordance with the well-established custom and practice Chapman relied upon the truck remaining in front of the car door until he had finished with it. We think that these facts and circumstances were sufficient to justify the inference of negligence on the part of an employee of the defendant.

The learned trial judge was of the opinion that the proximate cause of the accident was the failure of Chapman to look before stepping back onto the truck, and that therefore there could be no liability on the part of the defendant. In this, however, he has apparently confused the alleged contributory negligence of the plaintiff with the negligence on the part of the defendant. Under the Federal statute the contributory negligence of the employee does not bar a recovery, but shall be considered by the jury in diminution of the damages in proportion to the amount of negligence attributable to such employee.

Neither do we think that it can be said that Chapman assumed the risk or the negligence of his fellow employees. The Federal authorities seem to hold that in order to make the negligence of the fellow servant one of the assumed risks under this act, the injured employee must actually know of the fact of the negligence of his fellow servant, or that such negligence was so customary that he would be charged with knowledge thereof. In Michigan Cent. R. Co. v. Schaffer, 220 Fed. 809 (136 C. C. A. 413), Circuit Judge Dennison refers to the question of assumption of risk as applied to fellow servants under the Federal employers' liability act in the following language:

* By Seaboard Air Line v. Horton, 233 U. S. 492 (34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Am. & Eng. Ann. Cas. 1915B, 475), it is now settled that the common-law defense of assumption of risk remains in actions brought under this statute, but it is also recognized by recent decisions in this court (Yazoo v. Wright, 207 Fed. 281, 285, 125 C. C. A. 25, affirmed 235 U. S. 376, 35 Sup. Ct. 130; Tennessee Co. v. Gaddy, 207 Fed. 297, 298, 125 C. C. A. 41; Illinois Co. v. Porter, 207 Fed. 311, 314, 125 C. C. A. 55; Sterling Co. v. Hamel, 207 Fed. 300, 304, 125 C. C. A. 44) that to make the defense good, in

cases depending on the negligence of fellow servants, it must appear: first, that the negligence was either in fact known to plaintiff, or was so customary that he must be charged with knowledge; and, second, that he must appreciate, or be bound to appreciate, the danger. Both these elements are left out of sight in the claim that a verdict should have been instructed against Schaffer.

*

In the case of Yazoo, etc., R. Co. v. Wright, 235 U. S. 376, 35 Sup. Ct. 130, Chief Justice White said:

"The impossibility of deducing assumption of the risk from the facts stated is cogently demonstrated by the arguments advanced to establish that the risk was assumed. Thus it is urged that, as in a railroad yard there was danger to arise from the protrusion of cars negligently placed by employees of the company, a danger which the engineer must have known might arise, therefore he assumed the risk of such danger. And, again, the argument is that, even although the engineer did not know of the protruding cars, and therefore did not consciously incur the great risk to result from the collision, yet as by proper precaution he could have discovered the fact that the cars were protruding, he must be considered to have assumed the risk which resulted from his want of care. But both these arguments have no relation to the doctrine of assumption of the risk and only call for the application of the principle of contributory negligence or of fellow servant."

In the very recent case of Chesapeake, etc., R. Co. v. De Atley, 241 U. S. 310 (36 Sup. Ct. 364), Mr. Justice Pitney, speaking for the court, says:

"It is insisted that the true test is not whether the employee did, in fact, know the speed of the train and appreciate the danger, but whether he ought to have known and comprehended; whether, in effect, he ought to have anticipated and taken precautions to discover the danger. This is inconsistent with the rule repeatedly laid down and uniformly adhered to by this court. According to our decisions, the settled rule is not that