The opinion of the Court was delivered by

Action for tort to the person; verdict for the defendant; appeal by the plaintiff. The circumstances of the transaction are set out in the second, third and fourth paragraphs of the complaint, which ought to be reported. The answer is a general denial, and a plea that the plaintiff was working in interstate commerce, and that the danger of a spike head flying off was obvious, and that the plaintiff assumed that risk. When the pleadings had been read both sides admitted that the case was one under the act of Congress (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, secs. 8657-8665]) regulating the liability of employers to workmen. But the Court ruled the contrary, and submitted the case to the jury under the laws of the State, and the Court further ruled that the complaint alleged only a wilful act, and not a negligent act. At the conclusion of the testimony the defendant moved for a directed verdict: (1) Because there was no evidence of negligence; (2) because the only inference to be drawn from the testimony is that the plaintiff assumed the risks. The motion was refused.

After the verdict for the defendant, there was a motion by the plaintiff for a new trial, because under the act of Congress the complaint sufficiently alleged negligence, and that *442 issue should have been sent to the jury. The Court held upon this motion: (1) That the complaint alleged only a wilful tort; (2) that for such conduct (contrary to the Court’s first impression) the defendant was not liable under the act of Congress; (3) that therefore the Court ought to have directed a verdict for the defendant; (4) that even though the complaint alleged negligence, yet the plaintiff had assumed the risks incident to the employment, and for that reason also the Court ought to have directed a verdict for the defendant. The Court held finally that upon any view of the case the plaintiff had not been prejudiced, and refused the new trial.

There are eight exceptions, but the brief of the appellant’s counsel argues only two questions: (1) That under the act of Congress negligence was sufficiently alleged; (2) that whether the plaintiff did assume the risk of a flying spike head was a question of law and fact, and ought to have been submitted to the jury under proper instructions.

1 It is true that the complaint does not in words allege that the conduct of the defendant’s servant was “negligent.” But negligence is an inference to be drawn from circum- . stances alleged or proven. If the circumstances be set out from which the inference of .negligence is made, then manifestly the pleader need not denominate these circumstances as negligent; the law does that. For instance, if a pleader should allege that a man drove his horse and vehicle through a crowded street at the rate of 12 miles an hour, and knocked down and injured a bystander there, it would not be necessary to denominate that act as negligent; the law does that. So in the case at bar; the complaint alleged that the spikes were old and rusty, and could not stand under heavy blows; that the heads of the spikes frequently flew off; that the defend *443 ant’s servant knew so much; that the defendant’s servant nevertheless commanded and requested the plaintiff to drive those spikes.

And the plaintiff testified that he did not know that the work was dangerous. These circumstances alleged if testified to were sufficient to send the case to the jury to inquire if negligence was reasonably inferable. But when the witnesses were sworn the defendant asked, amongst other things, that a verdict be directed for it, because there -was nO' testimony tending to prove negligence. The Court declined that, and did not submit to the jury the issue of negligence,, but submitted only the issue of wilfulness. And the defendant now asks us in the brief to sustain the verdict upon one of the grounds for which a directed verdict was asked and refused, to wit, that here was no evidence tending to prove, negligence. The record does not show that any testimony was excluded; that which is printed does not tend to at all show that the spikes were defective in any particular. Bet the testimony for the plaintiff be reported; it is very short.

2 Manifestly, regardless of the pleading now found to be sufficient, the testimony does not warrant a reasonable inference that the defendant’s servant was negligent; and the case on this determinative issue must be judged, by the testimony and against the plaintiff. On this, view the second issue made by the appeal, that of the assumption of risk, becomes irrelevant.

The judgment is affirmed.