
    ORVILLE K. TITUS v. CROOKSTON LUMBER COMPANY.
    
    July 9, 1915.
    Nos. 19,320—(179).
    Contributory negligence — question for jury.
    Action for personal' injuries. Held that the evidence made a question for the jury as to whether plaintiff failed to exercise proper care for his own safety.
    Action in the district court for Beltrami county to recover $2,999 for personal injury received while in the employ of defendant. The case was tried before Stanton, J., who when plaintiff rested granted defendant’s motion to dismiss the action. From an order denying his motion for a new trial, plaintiff appealed.
    Reversed.
    
      Carl L. Heffron, for appellant.
    
      R. J. Powell, George T. Simpson, E. E. McDonald and Ernest C. Carman, for respondent.
    
      
       Reported in 153 N. W. 599.
    
   Taylor, C.

Plaintiff brought suit to recover damages for personal injuries and at the close of his evidence the court dismissed the action. He made a motion for a new trial and appealed from the order denying the motion.

Defendant has a spur track upon a trestle extending from the shore out into Lake Bemidji and runs logging trains out upon this track and there unloads them. Plaintiff was one of the crew engaged in unloading these logs in January, 1913. All the logs which he had assisted in unloading had been unloaded upon the north side of the trestle. There was a platform along the south side of the trestle upon which the men stood while dumping the logs upon the north side. Logs had been unloaded at one point on the south side forming a so-called rollway from the ice to the top of the trestle. The top logs of this rollway, the top of the trestle and the platform were substantially at tbe same height. It bad been determined to begin unloading logs upon tbe south side of tbe trestle on January 21, and for that reason tbe platform on that side was removed, but plaintiff, who bad been working elsewhere at tbe time, did not know of such removal. When tbe crew went to work at seven o’clock on the morning of January 21, it was still quite dark. Snow bad fallen during tbe night and was still falling. Tbe men could see tbe trestle and cars when near them and could also see small objects indistinctly. Tbe crew approached tbe trestle from the south. Tbe car which plaintiff and bis “partner” were about to unload was opposite tbe rollway on tbe south side above mentioned, and it was necessary for him' to go to tbe north side of tbe car in order to “trip” tbe stakes upon tbe south side by means of a patent “tripping” device provided for that purpose. He went up to tbe car over tbe logs on tbe rollway and then turned and walked along tbe side of tbe car upon tbe top logs of tbe rollway in order to pass around tbe end of tbe car. Tbe car extended about four feet beyond tbe end of tbe rollwav. When be reached the end of tbe rollway, be stepped beyond tbe end of the logs expecting to step upon tbe platform which bad previously been at the end of tbe rollway, but, as tbe platform bad been removed, be stepped into space and fell and sustained tbe injuries for which be seeks to recover. Negligence is alleged in removing tbe platform without informing plaintiff of such removal. Tbe learned trial judge was of opinion that plaintiff was guilty of a want of proper care for bis own safety as a matter of law. Had plaintiff known of tbe removal of tbe platform, or had tbe light been sufficient so that a court could say that if be bad looked be must have seen that tbe platform was not there, tbis would doubtless be true; but, under the circumstances disclosed by the evidence, we cannot say that it conclusively appears that such was the fact. We think that the evidence made a question for the jury and that it should have been submitted to them. Lyons v. Dee, 88 Minn. 490, 93 N. W. 899; Johnson v. MacLeod, 111 Minn. 479, 127 N. W. 497, 1120; Heydman v. Red Wing Brick Co. 112 Minn. 158, 127 N. W. 561.

Order reversed.  