time to do anything for his safety, or that there was any obligation resting upon either of them to be looking outside of the track and its controlling signals and the other factors of safety of the train for which they were directly responsible; and therefore that a finding was not warranted that the death of the intestate resulted in whole or in part from negligence of either of them.

Mere disbelief by a jury of denials of facts which must be proved by a plaintiff is not the equivalent of affirmative evidence in support of those facts and will not warrant the jury in finding the existence of the facts.

At the trial of the above described action the engineman of the express train testified in substance that, if a man were on the side of a freight car and he saw him six hundred or a thousand feet away, it would be his duty to blow a whistle. Held, that such testimony did not tend to show that it was his duty or that of the fireman to be on the lookout for men in that position on freight cars along the line of his track.

TORT under the federal employers' liability act to recover for the death of the plaintiff's intestate, Leon L. Cruzán, the declaration containing two counts, the first count alleging as the cause of the death "negligence in whole or in part of one of the officers, agents or employees of the defendant," while the second count alleged as such cause "a defect or insufficiency due to the negligence of the defendant in its cars, engines, appliances, machinery, track, roadbed or other equipment." Writ dated May 14, 1915.

In the Superior Court the action was tried before Chase, J. The material evidence is described in the opinion. The judge ordered a verdict for the defendant upon the second count of the declaration and refused to rule, as requested by the defendant at the close of the evidence, that the plaintiff could not recover on the first count. The jury found for the plaintiff on the first count in the sum of $7,000; and the defendant alleged exceptions. G. L. Mayberry, (F. A. Jenks with him,) for the defendant. James J. McCarthy, (T. C. O'Brien with him,) for the plaintiff. RUGG, C. J. This is an action of tort under the federal employers' liability act to recover damages for the death of Leon L. Cruzan for the benefit of his widow and two minor children. The circumstances of his injury were these: He was acting as "head-end" brakeman on a freight train about twelve hundred feet long on the main eastbound or southerly of the two main tracks of the defendant, which had been ordered to back upon a siding southerly of the track it was on at Brookfield, in order to let a faster following train pass it. The conductor at the rear of the train set the switch so that the freight train could go upon the

siding and gave a signal to the deceased standing upon the top of about the fourth car from the locomotive, whose duty it was to give the "back up" signal to the engineer, then to get on the ground and set the switch of the siding after his train had passed wholly on to the siding, so that the main line track would be clear for the fast train following. His train began backing on to the siding at a rate of about five or six miles an hour. He came down a ladder on the northerly side of the car and, while doing this, was struck by the locomotive of a regular passenger express train moving at the rate of about sixty miles an hour westerly on the northerly of the two main tracks, and was fatally injured.

There was an overhead bridge under which the freight was backing. The deceased was facing to the rear of his train and not looking in the direction from which the fast passenger express train was approaching. There was evidence tending to show that the position of the deceased, when struck, was part way down the side of a car, which had not quite reached the switch, standing out from the car with his left foot in the stirrup in the side of the ladder and holding on to a rung of the ladder with his left hand, in a stooping position with his knees bent, and was about to jump off on to the ground.

A rule of the defendant was that "Employees are warned that trains may run on any track in either direction without notice. . . . Employees must be governed accordingly, and exercise proper care to avoid being injured." There was evidence tending to show that the track was substantially straight for about twelve hundred feet east from the bridge and in plain view from the locomotive of the express train.

This action is brought under the federal employers' liability act. That act in the field covered by it supersedes all State statutes. Corbett v. Boston & Maine Railroad, 219 Mass. 351, where it is printed in full. By § 2 the interstate carrier is liable for the injury or death of its employee occurring while engaged in interstate commerce and "resulting in whole or in part from the negligence of any of" its employees. The only negligence alleged in the case at bar is that of the fireman and engineer of the passenger express train. We are of opinion that there is no evidence of negligence on the part of either. There is nothing to indicate that it was their duty to be observant of the move

ments of brakemen upon other trains in the position in which Cruzan was. The only rule pertinent in this connection was this: "Firemen and Helpers. . . . They must keep a constant lookout ahead (except as to firemen when engaged in firing), and give instant notice to the engineman or motorman of any danger signals or obstructions on the track." It is manifest that this rule relates only to the safety of the train on which they are at work. It imposes no duty to be on the watch for other employees on other tracks and trains. The duty of exercising care for their own safety was placed by explicit rule upon such other employees. There can be no negligence in the ordinary case when no duty has been violated. It is manifest that the danger of Cruzan was momentary. So long as he kept close to the car even coming down the ladder on its side, he was in a safe place. It was only for the instant when he swung out from the body of the car as he was on the point of jumping to the ground that he came within the sweep of the rapidly moving express train. It may be assumed that, if the fireman or engineer of the passenger express train had seen Cruzan in a place of danger and had failed to use care to protect him, there would have been evidence of their negligence. But there was no evidence that either the engineer or fireman saw Cruzan in time to give him any warning. Both testified that they did not see him earlier than an instant before he was struck. Mere disbelief of denials of facts which must be proved is not the equivalent of affirmative evidence in support of those facts. Wakefield v. American Surety Co. 209 Mass. 173, 177. Southern Railway v. Gray, 241 U. S. 333, 337.

The governing rule of law may be stated by a slight paraphrase, in order to render it applicable to these facts, of what was said in Aerkfetz v. Humphreys, 145 U. S. 418, at page 420: the persons in charge of the express train had a right to act on the belief that the various brakemen upon freight trains along the line, familiar with the continuously recurring movement of trains, would take reasonable precautions against their approach. New York, New Haven, & Hartford Railroad v. Pontillo, 128 C. C. A. 573. Hogan v. New York Central & Hudson River Railroad, 139 C. C. A. 328. The case is like Gillis v. New York, New Haven, & Hartford Railroad, 224 Mass. 541, 549, in respect of the negligence of the fireman there alleged. It is similiar to Shepard v. Boston & Maine Rail

road, 158 Mass. 174, Gilgan v. New York, New Haven, & Hartford Railroad, 185 Mass. 139, Riccio v. New York, New Haven, & Hartford Railroad, 189 Mass. 358, Morris v. Boston & Maine Railroad, 184 Mass. 368, Dacey v. Boston & Maine Railroad, 191 Mass. 44.

The testimony of the engineer in substance that it would have been his duty to blow the whistle if a man were on the side of a freight car and he saw him six hundred or a thousand feet away does not tend to show that it was his duty or that of the fireman to be on the lookout for men in that position on the sides of freight

cars.

The conclusion is that there was no evidence that either the fireman or engineer of the fast express train actually saw the deceased on the side of the freight car in time to do anything for his safety before he was struck; and there was no evidence of obligation resting on either the engineer or the fireman to be looking outside the track and its controlling signals and the other factors of safety of the train for which they were directly responsible. Hence there was no evidence of negligence for which the defendant was responsible. There is nothing inconsistent with this conclusion in Erie Railroad v. Purucker, 244 U. S. 320.

It becomes unnecessary to consider the other questions raised. The request that a verdict be ordered for the defendant should have been granted. In accordance with St. 1909, c. 236, judgment may be entered for the defendant.

So ordered.

ALLISON G. CATHERON vs. COUNTY OF SUFFOLK.

Suffolk. March 29, 1917.- June 30, 1917.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Superior Court. Probation Officer. Words, "The Superior Court."

An appointment, by a judge of the Superior Court holding court in the criminal session for the county of Suffolk, of a probation officer for the county of Suffolk to serve for a stated year at a stated salary is an appointment by "the Superior

Court" under R. L. c. 217, § 81, as amended by St. 1911, c. 470, § 1, and is valid, although it neither was authorized nor ratified by a vote passed at a meeting of all the justices of that court.

In this case it was stated that it had not been and hardly would be contended that such an appointment could be made by a committee of the judges of the Superior Court which was not holding court at the time.

Such appointment by the judge presiding at a sitting of the court was the exercise of the judicial faculty which under the circumstances imports forethought and personal responsibility, and the fact, that such appointment was made by the judge in accordance with the recommendation of a committee of the justices of the Superior Court called the probation committee, does not make it susceptible of the construction that it was an unthinking adoption of the work of that committee.

CONTRACT for one month's salary alleged to be due to the plaintiff as probation officer of the Superior Court for Suffolk County for the month of January, 1917. Writ dated February 2, 1917.

In the Superior Court the action was heard by Hardy, J., without a jury, upon an agreed statement of facts, among which were the following:

On April 8, 1899, for the first time a committee on probation matters was appointed by the justices of the Superior Court. On June 6, 1903, it was voted by the justices "That the selection and appointment of probation officers, the determination of their compensation, the supervision of their work, and everything incidental thereto, be assigned to the committee, . . . [naming three justices] to be as far as possible exclusive of action

by other Justices." A probation committee, varying in membership, continued in existence from that time to the date of the hearing. The foregoing vote as to the authority of such committee had not been modified, and no other vote had been passed affecting its powers, and such probation committee had continuously acted in the appointment of, and fixing the salary of, probation officers throughout the Commonwealth.

On December 21, 1911, at a meeting of the justices of the Superior Court, it was voted: "That until further order the standing committees of the Justices shall be as follows: . . . Probation

and shall consist of the Chief Justice and such Associate Justices as he may appoint." Acting under the authority of the foregoing vote, the Chief Justice appointed as members of the probation committee other than himself Justices Stevens,