c32:No. 1,320

PARDEE, Circuit Judge.
I concur in reinstating the case on the consent of both parties, but I dissent on the merits. On his own showing and under the undisputed facts in the case, Prunty contributed to his own injury. In coupling the engine to the cars there was a safe way and a dangerous way. Of his own motion he selected the dangerous way. Thereby and therein he was injured. The couplers in use were automatic, and he knew that the drawhead on the car was out of alignment and out of order, and he knew, or ought to have known, that from bad weather and repairing then going on the track was uneven and irregular, and these facts particularly cautioned him, in trying to make the necessary coupling, not to resort to the dangerous way of mounting the rear of the engine (then going backwards at about six miles an hour) so as to push over the drawbar or drawhead of the engine to properly meet and connect with the drawhead of the car, which was out of order and out of alignment. All this is sound in principle and good law (Bailey on Personal Injuries, vol. 1, §§ 1121-1123) and well supported by adjudged cases. See Cunningham v. Railroad Co. (C. C.) 17 Fed. 882; Gleason v. Railroad Co., 73 Fed. 647, 19 C. C. A. 636; Morris v. Railway Co., 108 Fed. 747, 47 C. C. A. 661; Dawson v. Railway Co., 114 Fed. 870, 52 C. C. A. 286; Gilbert v. Railway Co. (C. C.) 123 Fed. 832; Hurst v. Railroad Co., 163 Mo. 309, 63 S. W. 695, 85 Am. St. Rep. 539; Elmore v. Seaboard Air Line Co. (N. C.) 42 S. E. 989; Karrer v. Detroit Railway Co., 76 Mich. 400, 43 N. W. 370; Central of Ga. Ry. Co. v. Mosely (Ga.) 38 S. E. 350; Alabama Ry. Co. v. Ritchie (Ala.) 20 South. 49; George v. Mobile Ry. Co., 109 Ala. 245, 19 South. 784.
. The trial judge, in charging the jury, instructed them, over the objection of the defendant, as follows:
“If you find the method or way he was using to make the coupling was one of the ways frequently or ordinarily used by brakemen under such conditions, and that he was at the time under the circumstances prudently using that way, he was not guilty of contributory negligence.”
Prunty’s own witnesses testified, and there was no dispute about it, that to make such a coupling as the one in question the engine could have been stopped and the drawheads aligned before backing the cars together, and that this method was without hazard to the brakeman. In my judgment, and as I understand the principles declared in the above-cited cases, no amount of usage justifies an employe, without superior orders and in the absence of extraordinary emergency, in taking a dangerous way to perform a duty when a safe one is at hand. The test of negligence on the part of the brakeman is not what other brakemen habitually and customarily do. They may be prudent or negligent; and after all, as said in Dawson v. Railway Co., supra, “the inherent quality of an act is not changed, whether it is done by one or many.” Habitually careless or negligent conduct on the part of many cannot make such conduct prudent in the eye of the law. In Warden v. Louisville & N. R. Co. (Ala.) 10 South. 279, 14 L. R. A. 552, the court said:
“The fact that one is in the habit of doing an obviously dangerous thing does not make his act any the less a dangerous one. The fact that many or all of a limited class of persons customarily ride upon the pilot of an engine does not alter the characteristic of obvious peril which the law imputes to that position. It is negligence per se for persons to walk upon the track of railroads. Doubtless many persons are in the habit of using the track in this way. Yet it has never been supposed, and it cannot be the law, that such customs would convert the track, which the law declares to be per se a dangerous place, into a safe place. So a person may be in the habit of crossing railway tracks without stopping and looking and listening for approaching trains; yet we have never heard it suggested [that] such person, when he finally reaps the penalty of his lack of care, is, because of such habit, not guilty of contributory negligence as a matter of law. Custom and usage may be relied upon to excuse the violation of a rule when the act involved is not negligent in itself.”
As to some of the adjudged cases cited in the court’s opinion, I have only to say that when the link and pin coupling was in use it was not negligent, as a matter of law, to step between moving cars to couple or uncouple them; but since the introduction and common use of automatic couplers, as in this case, I am confident that the rule is, and ought to be, that going between moving cars to couple or uncouple them is negligent as a matter of law. An act of Congress requires the introduction and use Of automatic couplers, and it is common knowledge that, when in use, there is a distance of about two feet and a half between cars and a foot and a half between the wooden bumpers placed on the cars, and surely it requires no evidence nor controlling authority to show that to go between cars thus provided, when they are coming together, for the purpose of coupling, is extremely dangerous and decidedly negligent.

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