Frank Murphy

“ Judged by the test outlined above, that evidence was ample to warrant submission of the issue to the jury. Since other questions which our decision does not touch were presented to the Supreme Court of Missouri, the judgment is reversed and the cause is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. ”

“ We cannot agree.
To be sure petitioner was required by the allegations of his complaint to prove that he acted promptly and reasonably to awaken the engineer to the danger ahead. Since the only count submitted to the jury charged that the engineer was negligent in failing to apply the brakes after notice of the train in front, petitioner was compelled also to prove that the notice was communicated to the engineer. But to establish the fact of communication petitioner had only to prove that the engineer § ould have comprehended the warning under the circumstances disclosed. ”