ing involved. Abelman v. Haehnel, 57 Ind. | App. 15, 103 N. E. 869. To hold otherwise on this branch of the case would be to sacrifice merit for purely technical procedure. who have long resided in this state that our streams are occasionally subject, after intervals which are sometimes of shorter and at other times of longer duration, to great floods, occasioned by very heavy rainfalls, and their heights are known by those who have felt interested in them. Such rainfalls were not usual and ordinary, but they were unusual and beyond ordinary -i. e., they were extraordinary; and yet it is just as certain that like rainfalls will occur in the future as it is that the same laws of nature by which they are produced, and the same tinue to exist in the future as they have in the conditions to be affected by those laws, will conpast." This leaves for disposition the sufficiency of the evidence to sustain the verdict, and as to whether the verdict is contrary to law. [15] As to the injury to appellee's real estate being caused by the "act of God," or being such that the exercise of ordinary care and prudence on the part of appellants in the construction of the embankment and bridges that they could not have anticipated the same as here contended, it appears that be- A like principle was announced in Gulf, fore the "act of God" can be made available etc., R. R. Co. v. Pomeroy, 67 Tex. 498, 3 S. as a defense that there must be an entire ex- W. 722, to the effect that if when the road clusion of human agency from the cause that was being built extraordinary inundations produced the injury, and that an occurrence had occurred within the memory of men then that is produced partially by the interven- | living their reoccurrence should be anticipattion of human agency is not an "act of God" ed, and provision made against the danger within the meaning of the law. Kirby v. likely to result therefrom should a reoccurWylie, 108 Md. 501, 70 Atl. 213, 21 L. R. A. rence of the flood take place. (N. S.) 129, 129 Am. St. Rep. 451; Michaels v. New York, etc., R. R. Co., 30 N. Y. 564, 86 Am. Dec. 415. "When the effect, the cause of which is to be considered, is found to be in part the result of the participation of man, whether it be from active intervention or neglect, or failure to act, the whole concurrence is thereby humanized, as it were, and removed from the operation of the rules applicable to the acts of God." 1 Corpus Juris, 1174, and authorities cited. In the case at bar, the facts disclose that in the year of 1875, the flood water reached an altitude of 28 feet above high-water mark, while in the flood of March, 1913, it reached This measurement an altitude of 31 feet. seems to have been taken quite a distance above appellants' roadbed. There is evidence to the effect that the water was 4 feet higher on the upper side of the roadbed than on the lower side, and there is likewise evidence to the effect that appellee's real estate was injured in January preceding the March flood, and for which injury a recovery was sought The river, the flood waters of which are under consideration, is a water course into which many creeks, streams, and small rivers flow, and thereby a vast valley is drain-in connection with the damages alleged to ed. By reason of the improvements that have taken place in the way of denuding the land of its timber and by artificial drainage, the water produced by rainfall and melting snow is conveyed to the main outlet with much greater velocity than when the land was covered with timber, which had a tendency to retard its flow, and especially has the flow in this respect been accelerated by artificial drainage, all of which has a tendency and does cause the streams and rivers, and especially the main waterway, to rise with much more rapidity and to a higher altitude than formerly; and the real estate of which appellee's is a part has from time immemori-R. R. Co. v. Schaffer, 26 Ill. App. 280. al been submerged by the flood waters of the river in the rainy season of the year, and when the water reaches a certain stage it moves in a current with the waters of the main channel. All of these facts must be re garded as within the knowledge of appel lants when they built their roadbed. In Ohio, etc., R. Co. v. Ramey, 139 Ill. 9, 28 N. E. 1087, 32 Am. St. Rep. 176, it was said: "The principle, clearly, is, that although a rainfall may be more than ordinary, yet if it be such as has occasionally occurred, and, it may be, at irregular intervals, it is to be foreseen that it will occur again, and it is the duty of those changing or restraining the flow of water to provide against the consequences that will result from it. It is within the knowledge of all have occurred later; there is nothing to show that the January flood was beyond that of an ordinary flood, so upon all of the facts and circumstances, the court could not have said, as a matter of law, that the injury was caused by the "act of God," or was such that by the exercise of ordinary prudence on the part of appellants they could not have anticipated in the construction of their roadbed in the manner in which they did that an injury was not likely to occur to appellee's real estate. So these questions were properly left to the jury to determine. 2 Farnham on Water Rights, § 577b; Chicago, etc., [16] The injury under consideration is not one that was taken into account in measuring the compensation to the owner of the real estate when the right of way was originally acquired, as it does not fall within that rule of law that there can be no recovery for injuries that are an incident to the due and proper exercise of the corporate franchise of the railroad. Gould on Waters, § 256; Thompson on Cor. (2d Ed.) § 5505. To build the embankment and bridges so as to suit appellants' own best convenience, and as of proper construction from their standpoint, was not sufficient. It was said in New York, etc., R. Co. v. Hamlet Hay Co., supra: "So far as concerns the claim made that the embankments were built in a careful manner, (75 Ind. App. 677) CHICAGO & E. R. CO. v. FEIGHTNER. * (No. 9056.) and so as to protect the charter rights of the appellant, we may say, as was said in Evansville, etc., R. R. Co. v. Dick, 9 Ind. 433, that the embankments may have been erected in a proper manner, so far as appellant's interest is con- (Appellate Court of Indiana, Division No. 1. cerned, and still be constructed in such a manner as necessarily to injure appellee. In such case there can be no place for the maxim damnum absque injuria, and the appellee must have its right of action for damages." Dec. 22, 1916.) 1. APPEAL AND ERROR 171(2)-GROUNDS OF REVIEW-THEORY OF CASE BELOW. In a servant's action for injuries, where the complaint was treated in the trial court, by the parties and the court, as predicated on the fed1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. 1913, §§ 8657-8665]), the Appellate Court will treat it likewise, in determining whether error was committed in overruling demurrer. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1161-1165; Dec. Dig. 171(2).] This court held in Southern Railway Co. v. Weidenbrenner, 109 N. E. 926, that rail-eral Employers' Liability Act (Act April 22, road companies become wrongdoers when they construct and maintain their bridges and embankments or trestles so as to obstruct water courses, and that they become liable, subject to certain conditions, for injury resulting thereby, however prudently the bridges and embankments or trestles may have been constructed from their standpoint. [17] Railroad companies have a right to build their roads upon or across a water course (Burns' R. S. 1914, § 5195, subd. 5), but they must refrain from interfering with the free use of the same so that security to property is afforded, and in this behalf they must restore the water course to its former state. Of course it cannot be restored in all respects to its former condition, and the law will be satisfied if it is substantially re stored as not to impair its usefulness more than the additional use for railroad purposes renders absolutely, necessary. Pittsburgh, etc., R. R. Co. v. Greb, 34 Ind. App. 625, 73 N. E. 620; Evansville R. Co. v. Carvener, 113 Ind. 51, 14 N. E. 738; Vandalia R. Co. v. Yeager, supra. 2. COMMERCE 27(1) FEDERAL EMPLOYERS' LIABILITY ACT-INJURY IN INTERSTATE COMMERCE. Recovery against a railroad, under the fedemployé, can be had only where the injury is eral Employers' Liability Act, for injuries to an suffered while the road is engaged in interstate commerce, and while the employé is employed and engaged in such commerce. [Ed. Note.-For other cases, see Commerce, Cent. Dig. § 25; Dec. Dig. 27(1).] 3. COMMERCE 27(7)—Railroads-Federal EMPLOYERS' LIABILITY ACT INJURY IN "INTERSTATE COMMERCE." If a brakeman of a local freight train, a number of the cars of which were laden with interstate freight, was injured when he, the engineer, fireman, and a foreman were switching cars, he was injured in "interstate commerce,' since the switching of the cars had for its object the making up of a train used in inter state commerce. [Ed. Note.-For other cases, see Commerce, Dec. Dig. 27(7). For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 4. MASTER AND SERVANT 218(3)—ASSUMPTION OF RISK BY FREIGHT BRAKEMAN. A railroad's freight brakeman, who was inexperienced in railroading and had been employed but a few days, all of which was known to the railroad, and who did not see or know of the proximity of a car on a passing track to the entrance of another track, so that he was struck and knocked under the wheels, when obeying the orders of his foreman and without warning, did not assume the risk of the injury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 8 603; Dec. Dig. 218(3).] The free passage of the water in the water course under consideration being interfered with by appellants so as not to afford se curity to appellee's property, as the statute provides, but on the contrary to the injury thereof, there was a direct violation of the statute, and a failure to observe a statutory duty gives rise to a cause of action when invoked as by the first paragraph of complaint (Evansville, etc., R. Co. v. Carvener, 113 Ind. 51, 14 N. E. 738; Kelsay v. Chicago, etc., R. R. Co., 41 Ind. App. 128, 81 N. E. 522; Cleveland, etc., Ry. Co. v. Stevens, 49 Ind. App. 647, 96 N. E. 493; Graham v. Chicago, etc., R. R. Co., 39 Ind. App. 294, 77 N. E. 57, 1055; New York, etc., R. R. Co. v. Hamlet 5. MASTER AND SERVANT 185(14) Hay Co., supra); and this issue, as well as RIES TO SERVANT-PROXIMATE CAUSE. the issue of actionable negligence joined up-injured while switching cars by being struck Where a railroad's freight brakeman was on the second and third paragraphs of com- by a car which had been left on another track plaint, was rightfully left to the jury under very near to the track on which the brakeman the evidence, as disclosed by the record. rode, the negligence of the road's engineer and brakeman, whose orders the injured brakeman was obeying at the time, was the proximate cause of his injury and death. Each question presented by appellants' able and exhaustive brief has received careful consideration, and we feel that there is no error in the record that calls for a reversal of the judgment. The same is therefore affirmed. FELT, α J., and HOTTEL, MCNUTT, IBACH, and CALDWELL, JJ., concur. INJU [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 401; Dec. Dig. 185(14).] 6. COMMERCE 27(6) "INTERSTATE COMMERCE"-FREIGHT CARS. Empty freight cars have an interstate character while having an interstate movement, and such movement ceases when they reach the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes first distributing point in the state of their destination. [Ed. Note.-For other cases, see Commerce, Dec. Dig. 27(6).] 7. MASTER AND SERVANT 276(1)—INJURIES TO SERVANT-FEDERAL EMPLOYERS' LIABIL- In an action for death of a freight brakeman, evidence held insufficient to authorize finding that decedent, when injured, was engaged in interstate commerce. death was the proximate result of any violation of duty on the part of appellant. As affecting these and other questions presented by the appeal, substantially the following facts are alleged in the complaint: Appellant is a railroad corporation and owns and operates a line of railway from Chicago, Ill., through the state of Indiana, and other states, which is used by it in carrying on interstate commerce. Decedent was employed [Ed. Note. For other cases, see Master and by appellant as freight brakeman, and on Servant, Cent. Dig. §§ 950, 954; Dec. Dig. January 4, 1913, was employed on a freight 276(1).] train which on said day was carrying freight Appeal from Circuit Court, Wells County; from Chicago, Ill., Hammond, Ind., and from W. H. Eichhorn, Judge. and to points along defendant's line of railAction by Patrick M. McCarty, administra-way eastward, and was engaged in transtor of the estate of Emanuel N. Wolfe, de-porting freight from and to points along apceased, against the Chicago & Erie Railroad pellant's road through Indiana, and also Company. From a judgment for plaintiff, freight to be delivered at points in Ohio and defendant appeals; Milo Feightner, admin- other places beyond such state. Such line of istrator de bonis non, being substituted as railway extends through Crown Point, Ind., appellee on McCarty's death. Judgment re- and at such point appellant owns and uses versed, with instructions to sustain defend-three parallel tracks, namely, a main track, ant's motion for new trial. E. C. Vaughn, of Bluffton, and W. O. Johnson and Walter M. Johnson, both of Chicago, Ill., for appellant. Bowers & Feightner, of Huntington, and Sturgis & Stine, of Bluffton, for appellee. a track immediately north thereof, known as a passing track, and another track immediately north of the latter used for loading freight, known as the back track. A switch leads off the main line to the passing track, and another switch off the passing track to the back track. On the day in HOTTEL, J. This is an appeal from a question, decedent was on an east-bound judgment recovered by Patrick M. McCarty, freight train which started at Hammond, administrator of the estate of Emanuel N. Ind. When the train reached Crown Point, Wolfe, deceased, to recover damages for the the locomotive was detached from the train, death of said Wolfe, alleged to have been and in charge of the engineer and fireman, caused by appellant's negligence. Since the and decedent and a foreman proceeded to submission of the cause, the death of said change two cars on the back track above deMcCarty has been suggested, and Milo scribed. The divers movements of the locoFeightner, administrator de bonis non, sub- motive necessary to make this change are alstituted as appellee. A demurrer to the com-leged in detail. The two cars were pulled plaint for want of facts, and a motion for new trial filed by appellant, were each overruled. These rulings are each assigned as error and relied on for reversal. We will dispose of them in the order indicated. [1] In the trial court, the complaint was treated by the parties and by such court, as predicated on the federal Employers' Liability Act of April 22, 1908, as amended by the Act of April 5, 1910, and hence this court will likewise so treat it in determining whether error was committed by the trial court in overruling the demurrer thereto. Zeller, etc., Co. v. Vinardi, 42 Ind. App. 232, 85 N. E. 378; Oolitic Stone Co. v. Ridge, 169 Ind. 639, 83 N. E. 246; Euler v. Euler, 55 Ind. App. 547, 102 N. E. 856, and cases there cited. out on the passing track, and the rear car was left standing thereon at a point near the entrance to the back track, while the car next to the locomotive was being relocated on the back track. Decedent climbed on the car that was being relocated on the south side at the end next to the locomotive, and, pursuant to orders and directions which he was bound to obey, proceeded to uncouple said car from the locomotive. The car on the passing track. had been left standing at a point so close to the entrance to such back track that there was but a 12-inch passing space between the two cars. Decedent was inexperienced in railroading and had worked as a freight brakeman but a few days, which was known to appellant. While decedent It is urged against the complaint that the was uncoupling said car às it was moving facts pleaded do not show: (1) Liability un- backward, and with his mind absorbed in der said act; (2) that such facts do not show such act, he was struck by the car left on that either appellant or decedent was en- the passing track and thrown under the gaged in interstate commerce at the time de- wheels of the tender and locomotive and incedent received his injury; (3) that the facts jured so that he died a few minutes therepleaded show that decedent assumed the risk after. Decedent did not know of the close which resulted in his death; (4) that the proximity of the car on the passing track to facts pleaded do not show that decedent's the entrance to the back track, and he had no warning of the danger he was about to en-interstate commerce, and hence that dececounter while attempting to ride the other dent, while assisting in such work, was not car back into the back track. The engineer so engaged. In support of its position, apwho had charge of the locomotive, and the foreman who was giving the directions as to the placing of said cars, both knew of the proximity of the car on the passing track to the back track, and of the danger and peril that decedent was in in passing said car, before decedent was injured. Decedent was engaged in coupling and uncoupling said cars while locating them, and his attention was directed upon said duties, and he relied on the foreman and engineer to place the cars at such places as would not injure him. In support of its first two propositions, supra, it is insisted by appellant that the facts pleaded show that decedent. when injured, was engaged in setting and handling cars taken off of appellant's side tracks at Crown Point, and that nothing appears from such averments showing that such cars were intended for interstate transportation, or that they contained any freight for such transportation, and hence that nothing appears from the complaint to show that decedent, at the time of his injury, was engaged in interstate commerce. [2] It may be, and in fact must be, conceded, as appellant contends, that recovery, under the statute involved, "arises only where the injury is suffered while the carrier is engaged in interstate commerce, and while the employé is employed by the carrier in such commerce," and, at the time of his injury, such employé must be engaged in interstate commerce. Hammill v. Pennsylvania R. Co., 87 N. J. Law, 388, 94 Atl. 313; Thornton's Fed. Empl. Liability Act, § 40, and cases there cited; Pederson v. Delaware, etc., R. Co., 229 U. S. 146, 150, 33 Sup. Ct. 648, 57 L. Ed. 1125, 1126, Ann. Cas. 1914C, 153. pellant relies on the following cases: Tamura v. Great North. Ry. Co., 58 Wash. 316, 108 Pac. 774; Van Brimmer v. Texas, etc., Ry. Co. (C. C.) 190 Fed. 324; Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Seabord Air Line R. Co. v. Moore, 228 U. S. 433, 33 Sup. Ct. 580, 57 L. Ed. 907; St. Louis, etc., Co. v. Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L. Ed. 1129, 1133, Ann. Cas. 1914C, 156; North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; Grand Trunk Co. v. Lindsay, 233 U. S. 42, 34 Sup. Ct. 581, 58 L. Ed. 838, Ann. Cas. 1914C, 168. While there are statements in some of these cases which lend apparent support to appellant's contention, such statements have been criticized by later decisions, and the facts of each of the other cases cited by appellant distinguish the respective case from the case made by the complaint in this case. Horton v. Oregon, etc., Co., 72 Wash. 503, 130 Pac. 897, 47 L. R. A. (N. S.) 8; Shanks v. Delaware, etc., R. Co., 163 App. Div. 565, 148 N. Y. Supp. 1034; Pennsylvania Co. v. Donat (1915) 239 U. S. 50, 36 Sup. Ct. 4, 60 L. Ed. 139; Lamphere v. Oregon R., etc., Co. (1912) 196 Fed. 336, 116 C. C. A. 156, 47 L. R. A. (N. S.) 1, and cases there çited; Atlantic Coast Line v. Jones, 9 Ala. App. 499, 63 South. 693; Thornton's Fed. Empl. Liability Act, §§ 45, 49; Southern Ry. Co. v. Jacobs, 116 Va. 189, 81 S. E. 99; Colasurda v. Central R. Co. (C. C.) 180 Fed. 832; Behrens v. Ill. Cent. R. Co. (D. C.) 192 Fed. 581; Carr v. New York, etc., Co., 157 App. Div. 941, Id., 142 N. Y. Supp. 1111; 238 U. S. 260, 35 Sup. Ct. 780, 59 L. Ed. 1298. The averments of the complaint indicated One of the tests approved by the courts, supra show that, while the train on which which aid in determining whether the pardecedent was employed was being operated ticular work at which the injured employé over an interstate road, it was a local train was engaged, at the time he received his inbeing operated between two cities in this jury, was work connected with interstate state, and hence was not, strictly speaking, commerce, and such as would bring the eman interstate train. The complaint, however, ployé within the protection of said act, "is contains the further averments, which we its effect on the course and current of interhave italicized supra, and which show that state commerce. Was the employé's relation such train had in it cars loaded with inter- to traffic so close that his injury tended to state freight. These averments were suffi-stop or delay the movement of a train engagcient to show that such train was transport- ed in interstate commerce?" Shanks v. Deling interstate commerce, and hence that ap- aware, etc., Co., supra. pellee's decedent was likewise engaged in assisting in the transportation of such commerce, at least while engaged on such train in the work of assisting in the transportation and handling of such train, or any of the cars thereof containing interstate freight. This is, in effect, we think, conceded by appellant; but it is very earnestly insisted that, when said engine was detached from said train and attached to the local cars on appellant's side tracks at Crown Point, such engine was not then engaged in transporting In the case of Graber v. Duluth, etc., Co., 159 Wis. 414, 418, 150 N. W. 489, 491, the court said: "But, as indicated, if the particular act, in field, then the federal law rules the situation, any substantial part, is within the interstate if either party sees fit to stand upon legal right in the matter." In the case of Southern, etc., Co. v. Jacobs, supra, 116 Va. 189, 191, 81 S. E. 99, 100, the court said: "It is true that, at the precise moment of the injury, Jacobs, the man who was injured, was engaged with a crew in shifting cars in the yard at Lawrenceville, and the particular cars which were attached to the engine at the moment of the accident were engaged in intrastate, as contradistinguished from interstate, commerce, and did not come from any point beyond the limits of the state, and were destined to points within the state; but it is also true that the shifting and movement of the cars at the time had for its object the making up of a train to which cars were to be attached which came from points beyond the southern limits of the state and were destined to points beyond the northern limits of the state, by way of Norfolk, and were laden with interstate shipments; and these facts, we think, bring the case fairly within the influence of Pederson v. Delaware, etc., R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, and the circuit court committed no error in so deciding." Again, in the case of Lamphere v. Oregon, etc., Co., supra, at 47 L. R. A. (N. S.) 4, the court said: deceased "Was the relation of the employment of the * * such that the personal injury to him tended to delay or hinder the move ment of a train engaged in interstate commerce? To that question we think there can be but one answer. Under the imperative command of his employer, the deceased was on his way to relieve, in the capacity of a fireman, the crew of a train which was carrying interstate commerce, and the effect of his death was to hinder and delay the movement of that train. In our opinion the complaint states a cause of action under the Employers' Liability Act." [3] Measured by these cases and the rules laid down therein, the complaint is not open to the first and second objection supra. [4] As affecting appellant's third objection, it is sufficient to say that the complaint shows that appellee's decedent was inexperienced in railroading, and that he had been employed as a freight brakeman but a few days, all of which was known to appellant; that he did not see or know of the proximity of the car on the passing track to the entrance of the back track; that when injured he was obeying the orders of his foreman, whose orders he was required to obey; and that he had no warning, etc. the ruling on the demurrer to the complaint. In its discussion of the ruling on its motion for new trial, appellant challenges the sufficiency of the evidence to sustain the verdict. It is insisted that there is a total failure of evidence to support each of several of the essential averments of the complaint, among which is the averment that appellant and decedent, at the time he received the injury which resulted in his death, were engaged in interstate commerce. As before indicated, the facts pleaded show that the train on which decedent was employed was a local train being operated between Hammond and Rochester, and that the averments which made the complaint sufficient were those which showed that such train contained cars loaded with interstate freight. The undisputed evidence supports said averment that the train in question was a local freight, run between Hammond, Ind. and Crown Point, Ind.; but we find no evidence from which the jury were authorized in finding that such train contained any interstate cars or any car loaded with interstate freight. Appellee, in his brief, indicates that there was such evidence; but we have read the record with care and failed to find it. The nearest approach to such proof is the testimony of Joseph Schearer, the engineer, whose testimony affecting this question is as follows: "Q. Where did you get your way freight, from Mr. Schearer, or had you gotten your way I don't know where that comes from; that is freight that you had in your train that day? A. loaded at the freighthouses. Q. Didn't you get some of it from Chicago? A. I don't know. Q. Did you have any other train that was called the Chicago way train? A. I don't know. Q. Mr. Schearer, did you not give your examination to this matter in the city of Hammond some time ago? A. Yes, sir. Q. I will you at that time and your answer: Q. Where ask you if this question was not propounded to had this freight come from that you were pulling that day, the best of your impression?' And 'A. whether you did not answer this way: Well, the way freight comes we have a ChiThese averments make the complaint suffi-cago way car and Hammond way car, and, of cient as against the charge that it shows that course, there is perhaps freight in the Chicago A. Yes, decedent assumed the risk of the injury way car from away west of Chicago.' which resulted in his death. Mondou v. New sir. Q. I will ask you whether or not on that day you were pulling freight from Chicago, Ill.? York, etc., R. Co. (1911) 223 U. S. 1, 32 Sup. A. I suppose we were.' Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Indianapolis Traction, etc., Co. v. Holtsclaw, 41 Ind. App. 520, 82 N. E. 986; Texas, etc., R. Co. v. Swearingen, 196 U. S. 51, 25 Sup. Ct. 164, 49 L. Ed. 382; Choctaw, etc., R. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96; Baltimore, etc., R. Co. v. Roberts, 161 Ind. 1, 67 N. E. 520. [5] It also sufficiently appears, from the averments of the complaint which we have indicated supra, that the negligence of the appellant's employés, the engineer and brakeman, whose orders decedent was obeying when injured, was the proximate cause of decedent's injury and death. Illinois, etc., Co. v. Skaggs (1916) 240 U. S. 66, 36 Sup. Ct. 249, 60 L. Ed. 528. Here the record contains the following: answer of the preceding question. Which mo- The most that this evidence can be said to show is that they were probably pulling cars that had come from Chicago to Hammond. [6] While the cars, if empty, may have had an interstate character, this would be true only while they had an interstate movement, and such interstate movement ceases when they reach the first distributing point in the |