CHASE, Circuit Judge (after stating the facts as above).
The action of the trial court in refusing to submit this case to the jury requires the rights of these parties to be determined on the basis of Helring's having been killed without warning by defendant's engine when operated with no lookout at a time when Helring was on the defendant's right of way because he chose to go there in the performance of the duties of his employment, although there was no necessity...
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