Epitomized Opinion

This was an action for personal injuries. Robertson was employed by the B. & O. Ry. Go. as a watchman at a certain railroad bridge during a strike. It was customary for the trains as they approached this bridge to blow their whistle, as there was a' sharp curve about 450 feet from the bridge. While Robertson was patrolling this bridge, he was struck by one of the railroad company's trains and seriously injured. He claimed that no *741whistle was blown and that in his effort ot get off of the bridge before being struck he cause his foot between a guard rail and a steel rail and before he could get the same released he was struck by the engine. The jury returned a verdict for Robertson, whereupon Railway Co. prosecuted error. The Circuit Court of Appeals held:

1. Where there was evidence tending to prove an allegation that the customary warning was not given to a watchman patrolling a tiestle at night by an approaching train, by which he was struck and injured, and to sutain other material allegations of negligence, the question of defendant’s negligence held properly submitted to the jury.