switch or place which we could enter at the expiration of the sixteen-hour law. It was McWhirter's duty as brakeman to throw the switch.

Q. When was the first time that you knew of the unfortunate accident?

A. When Mr. Roberson told me what had happened. Q. Whom do you mean by Mr. Roberson, who was he? A. The telegraph operator at Wolf Lake."

On re-direct examination the witness said:

"It is about in the neighborhood of fifteen miles from Wolf Lake to Gorham, and about six miles from Wolf Lake to Howardtown. There is a switch at Howardtown. There was no defect in the pilot step and I know nothing about how this accident happened except from the fact that the telegraph operator told me that something was wrong."

F. A. Roberson, a witness for the plaintiff, testified as follows:

"I am employed as a telegraph operator by the St. Louis, Iron Mountain & Southern Railway Company, and have been so employed since July, 1904. I was stationed, as operator, at Wolf Lake on February 22, 1910. I was at the station on the morning of the 23rd of February when extra train No. 503 came into Wolf Lake from the north. I saw the train when it pulled in. It was about 7:37 as well as I recollect by the time it got to the depot. Q. Just tell what you know about the accident that happened at Wolf Lake on that morning?

A. As I was sweeping out the office, I heard an engine coming. I looked out of the window and saw it was an extra south-saw it was a train coming south-didn't know it was an extra. I seen they were stopping and I wondered what they were stopping for and went ahead sweeping. When they came in close to the office I went out and was standing on the platform. I saw a man leave the cab window and come down the left running board

and came down to the pilot, and as it was nearing the switch he left the pilot and struck the ground running and the next I saw he fell face downward between the rails. I next saw him on his hands and knees. After that I turned my eyes to the engineer and did not see him any more, giving the engineer a stop signal. When he came to a stop I told the engineer something, but I do not remember what I told him, but that was the last I saw of the brakeman until he was taken from under the tender of the engine.

He was dead when he was taken out from under the engine. The weather was pretty cold-weather chilly, cold. As near as I can remember, the ground was frozen. I do not remember that there was any ice and sleet on the ground.

Q. Do you know how this man came to fall?

A. I do not.

There were cinders between the rails where he was, ashes between the rails, a little higher than the other ground about the place he was killed. I believe they were frozen. I do not recollect whether it had been raining on the night of the 22nd-not that I remember of it raining. I do not think any one else saw McWhirter at the time he was killed-not at the office. At that time there was no one else around there except the train crew on this freight train.

The remainder of the testimony of the witness is as follows:

"Q. When you saw McWhirter's perilous condition you say you turned your head. Why did you do that?

A. I don't remember saying I turned my head. I turned my eyes from the brakeman to the engineer.

Q. Did you know that he was in a condition to be hurt?

A. I didn't positively know so, but I thought he was in a dangerous condition down there.

Q. How far did the train run before the engineer stopped it after you notified him of this trouble?

A. I suppose about the length of an engine. Maybe not quite so far, maybe a little further. I don't remember.

Q. Do I understand you to say that Mr. McWhirter left the engine, passed down over the pilot and was out on the ground when you saw him?

A. He was on the ground when I saw him.

Q. How far was he from in front of that engine when he fell?

A. That is pretty hard for me to judge because he was in line of the engine and myself.

Q. How far was it from where he fell to the switch which he was called on to turn?

A. Perhaps three or four car lengths, maybe not so far. Q. How far is a car length-how many feet?

A. That is pretty hard for me to say.

Q. How long is a car?

A. Well, they ordinary run thirty-six feet, some of them thirty, some of them forty.

Q. Now, when you saw him fall how far was he from this switch?

A. About three car lengths. About three car lengths." Redirect examination by Mr. E. Boyd, counsel for plaintiff:

"Q. You say that at the time McWhirter fell he was in line with you and the engine. Explain what you mean by that?

A. In direct with me-between where I stood and where he got off putting me in direct line with him and where he got off. I can't tell whether he was ten, twenty or how far he was from the engine.

Q. You mean, if I understand you, that the train was coming towards you and he stepped off between you and the engine, is that correct?

A. That is correct.

VOL. CCXXIX-18

Q. Do you know whether or not the cylinder heads of this engine were leaking?

A. I couldn't say whether it was the cylinder heads or not. I recollect there was some steam or other from the engine.

Q. Steam was escaping?

A. Steam was escaping from the engine, as well as I recollect."

Cross-examination by Judge E. T. Bullock, counsel for

defendant:

"Q. Do you know what caused that?

A. I do not."

As to the testimony of conductor Loper, it suffices to say that he swore he was in the caboose and saw nothing of the accident, although he knew it occurred as the train was entering the station at Wolf Lake at 7:37 in the morning. When examined as a witness for the plaintiff he testified on cross-examination that at the time of the accident the train could not have been going more than two miles an hour because they stopped at an "engine's length," while when called to the stand as a witness for the railroad company he testified on cross-examination that at the time of the accident the train was going "about three or four miles an hour." Loper also testified that the night of the twenty-second of February, 1910, was a cold night, freezing, and the ground was frozen; that at the expiration of the sixteen hour limit the train was probably two miles from Wolf Lake, which was the first switch on the expiration of that limit.

At the close of all the evidence the defendant requested the court to instruct the jury to find in its favor. The court refused to do so, and an exception was noted. There were many other requests to charge asked by the respective parties, some of which were given and some of which were refused and exceptions taken.

There was a verdict and judgment for the plaintiff. The

Court of Appeals affirmed the judgment. 145 Kentucky, 427. Among other things, the court held that there was testimony tending to show negligence, and therefore the binding instruction to the contrary asked by the defendant was rightly refused, and that an instruction as to the operation and effect of the Hours of Service Act was also correct.

We must first dispose of a motion to dismiss which was made and postponed to the hearing on the merits. It rests upon the ground that the case as made by the pleadings presented two distinct causes of action-one at common law irrespective of the statutes of the United States and the other under those statutes, and that the former cause of action was sustained and affords a basis broad enough to support the judgment irrespective of what may have been decided concerning the statutes of the United States. The contention wants foundation in fact. As we have seen the pleadings in express terms exclusively based the right to relief upon the statutes of the United States and no non-Federal ground was either presented below or passed upon. It is true that although the case was exclusively rested upon Federal statutes, as it comes here from a state court, our power to review is controlled by Rev. Stat., § 709, and we may therefore not consider merely incidental questions not Federal in character, that is, which do not in their essence involve the existence of the right in the plaintiff to recover under the Federal statute to which his recourse by the pleadings was exclusively confined, or the converse, that is to say, the right of the defendant to be shielded from responsibility under that statute because when properly applied no liability on his part from the statute would result. Seaboard Air Line Ry. v. Duvall, 225 U. S. 477; St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281. And of course as the cause of action alleged was exclusively placed on the Federal statute and the defense therefore alone involved, determining