no longer stand beside the door and do their work in safety, some provision should have been made therefor, either by widening the door, making a window, or other suitable opening through which the men could look in safety, or providing some place where they could stand and do their work without being in constant danger of being struck by cars."

This eliminates the consideration of any and all negligence arising from all other sources, and bases the negligence relied upon entirely upon the construction of the tracks and the freighthouse. These tracks and this freighthouse were within the railroad yard of defendant company, and this work which plaintiff's decedent was doing at the time of his injury, while engaged in interstate commerce, was within the same yard. This contention of plaintiff is based upon the claim that the evidence tends to show:

"That it was necessary for decedent to stand where he did and look into the building, and that he was doing this work in both of these particulars in the usual and ordinary manner, and in the only way in which it could be done, or ever had been done, by men of experience in the work, and that no one could stand in the usual and necessary position and look into the building without getting close enough to the cars to be caught as decedent was, unless he succeeded in dodging back every time a wide car or open door approached."

Plaintiff follows this by again stating:

"There was no defect rendering this place unsafe in the sense of anything being broken or out of repair, but the place was defective and insufficient, in that it had become unsafe for and unsuited to the work required to be done."

Plaintiff thereby claiming that the case is within the provisions of section 1 of the Federal employer's liability act (35 U. S. Stat. 65), which provides that a common carrier railroad, while engaged in interstate commerce

"shall be liable in damages to any person suffering injury while he is employed by such carrier in such for such injury

commerce

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* * *

re

sulting * * * by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, or other equipment."

*

It is clear from the record that this narrow space between the freighthouse floor and the sides of the cars on this east track, at most but 13 inches wide, was not a sufficient space for the men to stand and work, and plaintiff admits:

"There was no necessity for the men to work inside this building between the platform and the cars, and they were not expected to do so."

The foregoing states fully and at length the theory of plaintiff's case largely as presented to this court in the exact words of counsel.

It is the contention of counsel for defendant that this claim of plaintiff does not state a case which constitutes negligence under the statute upon which this suit is brought; that the record clearly shows this train was not handled upon that day any different from the ordinary and usual way in placing trains and cars in defendant's freighthouse. It may be stated without contradiction that the statute sued upon does not make the employer an insurer of the lives of its servants, and does not give a right of action for which the employer is made liable, unless negligence is shown. The negligence claimed in the instant case deals exclusively with the construction of this freighthouse and these tracks, used in this railroad yard by the defendant for about 30 years exactly in the same manner as it was used upon the day of decedent's injury, and for 15 years of that time used continuously in handling these refrigerator cars, with other cars, all of which appears without dispute. As already stated, the construction of this freighthouse

was upon the plans of the engineer of the road and in accordance with the general plan of building such freighthouses and tracks for unloading purposes. Plaintiff introduced no evidence to show that this was faulty construction, unusual or different from the manner in which freighthouses of other railroad companies were constructed and operated.

Where work is done and cars are switched and handled in the usual and customary way, with the usual precautions, negligence will not be presumed, but it must be proved that such usual manner is in itself improper. This court has so held.

"No negligence was established against the defendant. Gang planks of the same character had been used by the defendant for 15 years, and no accident had before occurred in their use. It cannot be said, as a matter of law, that it was negligence to use such a tool. Defendant was using an appliance which long experience had shown to be safe. The law did not require it to do more." La Pierre v. Railway Co., 99 Mich. 212, at page 214 (58 N. W. 60, at page 61).

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This claim of plaintiff upon which recovery is based, reduced to its lowest terms, is that for the purposes of present use this freighthouse and these tracks were negligently constructed. It is well settled that the rule relative to structures erected near railroad tracks on a main line and that relative to structures within railroad yards are entirely different as far as liability for negligence by railroad companies to their their employees is concerned. We have already stated the only negligence upon which plaintiff relies in the instant case, and have already given in detail the length of time plaintiff's decedent had been engaged in this work at this place, his intimate knowledge of all the surroundings, and the manner in which he for years had performed the identical service in which he was engaged at the time of the accident, his

absolute control at this time of the cars which were being placed within this freighthouse, and his knowledge of the nearness of the east track to the doorpost and floor of the freighthouse. Our conclusion is that from all the evidence in the case no negligence on the part of defendant has been shown.

In a recent opinion handed down by this court, where an employee of a railroad company, who had been injured while riding into a roundhouse on the side of an engine tender of greater width than usual, which left so narrow a space between the side of the engine and the jamb of the door that he was caught and severely injured, and also where the counts in the declaration were predicated upon the liability of defendant under the Federal employer's liability act, as well as the State act, this court said:

"Liability of a common carrier railroad company, either under the Federal or State act, to its employees in case of injury, must be based upon some negligent act of the railroad company. * * We are of

opinion that the failure of the defendant to notify plaintiff of the danger in riding the tender into the roundhouse in the position assumed by him at the time of his injury was not negligence. The danger of assuming such a position upon any of the engines was an obvious one." Hollingshead v. Railway Co., 181 Mich. 547 (148 N. W. 171).

This court also in the same case holds as follows:

"The rule which protects railroad employees from the existence of structures upon the right of way too close to the track is not applicable in a case of this character" (citing and quoting at length from Hogan v. Railroad Co., 209 N. Y. 20 [102 N. E. 555]).

2. In answer to the appellant's contention that in this case plaintiff's decedent assumed the risk of his injury, plaintiff insists that the defense of assumption of risk is not available in actions for personal injuries brought under the Federal employer's liability act,

arguing, not only that it is abrogated by the terms of the statute, but also that the statute, being remedial in character, should be construed to advance the remedy. The case was submitted to the jury by the trial court upon plaintiff's theory.

Plaintiff further claimed at the time the case was submitted to this court that the question had not been passed upon by the Supreme Court of the United States, and that the weight of the authorities of the States and the Federal circuit courts of appeals favored the contention. An examination of the Federal authorities satisfies us that at that time there were indications in several opinions of the Federal Supreme Court of a contrary view. Later that court, in deciding the case of Seaboard, etc., Railway v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, distinctly held that the defense of assumption of risk was available. That case came into the United States Supreme Court from the supreme court of the State of North Carolina. It was a case brought under the Federal employer's liability act by plaintiff to recover damages for personal injuries sustained by him while engaged in interstate commerce, such injuries claimed to have been caused by the negligence of defendant in furnishing a defective water gauge for the steam boiler of his engine. On account of the importance of this case as the first positive utterance of that court, in construing the Federal employer's liability act, bearing upon the issue of assumption of risk, we have quoted practically the entire opinion bearing upon the question. Mr. Justice Pitney delivered the opinion of the court. After a brief statement of the facts in the case, and denying three motions to dismiss the writ of error as technical and without merit, the court said:

"Coming now to the merits, we need consider only certain assignments of error that are based upon exceptions to the action of the trial judge in giving and refusing to give instructions relating to the issues of