CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1923. FRESE, ADMINISTRATRIX OF FRESE, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY. CERTIORARI TO THE SUPREME COURT OF THE STATE OF MISSOURI. No. 27. Argued October 3, 1923.-Decided October 15, 1923. Where a state statute makes it the duty of a locomotive engineer to stop his train within a certain distance of a crossing of another railroad, and positively to ascertain that the way is clear and that the train can safely resume its course, before proceeding to pass the crossing, the duty is a personal one which cannot be devolved by custom upon the fireman; and the negligence of the engineer in failing to comply with the duty is a defense to an action for his resulting death, brought by his administratrix under the Federal Employers' Liability Act, notwithstanding a possibility that the injury might have been avoided if the fireman had been more vigilant. P. 3. 290 Mo. 501, affirmed. CERTIORARI to a judgment of the Supreme Court of Missouri which reversed a judgment against the respondent railroad company, in an action by the petitioner for damages, under the Federal Employers' Liability Act. Mr. John G. Parkinson for petitioner. Even if the Missouri Supreme Court had the right to decide, in conflict with a decision of the Illinois Appellate Opinion of the Court. 263 U.S. Court, that Frese, the engineer, was guilty of negligence as a matter of law in not having prevented the collision, the real and substantial cause of the collision was the negligence of the fireman, Savage, and, under the provisions of § 3 of the Employers' Liability Act, a recovery cannot be denied to the plaintiff, but only diminished in the proportion that the negligence of Frese bore to the combined negligence of Frese and Savage. Union Pacific R. R. Co. v. Hadley, 246 U. S. 330. Mr. M. G. Roberts, with whom Mr. Bruce Scott, Mr. H. J. Nelson and Mr. E. M. Spencer were on the brief, for respondent. MR. JUSTICE HOLMES delivered the opinion of the Court. This is an action in Missouri under the Federal Employers' Liability Act for the death of the plaintiff's (petitioner's) intestate, caused by a collision in Illinois between engines of the defendant and the Wabash Railroad Company at a grade crossing. The deceased, Frese, was the engineer in charge of the defendant's engine. A statute of Illinois [Hurd's Rev. Stats., 1916, c. 114, § 75] required that "All trains running on any railroad in this State, when approaching a crossing with another railroad upon the same level, or when approaching a swing or draw bridge, in use as such, shall be brought to a full stop before reaching the same, and within eight hundred (800) feet therefrom, and the engineer or other person in charge of the engine attached to the train shall positively ascertain that the way is clear and that the train can safely resume its course before proceeding to pass the bridge or crossing." Southern Ry. Co. v. King, 217 U. S. 524. Frese brought his train to a stop somewhat over two hundred feet from the crossing, and the Wabash train stopped at about three hundred feet from it. But the view of the |