
    RALPH A. PIDCOCK, Respondent, v. UNION PACIFIC RAILWAY COMPANY, Appellant.
    Master and Servant — Negligence and Contributory Negligence. — Plaintiff, acting as switchman of defendant, under the direction of his foreman, was moving flat cars in the yard, and as train was moving at rate of eight or ten miles an hour was directed to throw open a switch; in doing so, he went back to the rear of the car, got down upon a step, and stood with one foot resting on some part of the truck. While in that position the switch-stand, which was nine or ten inches from the track, struck him and knocked him off, and he sustained injuries. One of defendant’s rules stated that no building would be allowed nearer than six feet to the main track, and five feet to any side track. Plaintiff knew of this rule, but did not know of the switch stand. Held, that the question of negligence and contributory negligence, were properly left to the jury, and their finding would not be disturbed.
    Id. — Assumption of Risk by Servant. — The danger of the switch-stand above was not one of the ordinary risks incident to plaintiff’s employment and was not a risk assumed by plaintiff upon entering the defendant’s service.
    Appeal from a judgment of tbe district court of tbe first district and from an order refusing a new trial. The opinion states tbe facts.
    
      Mr. P. L. Williams, for appellant.
    
      Mr. P. H. Emerson, for respondent.
   Zane, C. J.:

This action was bronglit to recover damages for injuries suffered by tbe plaintiff because of defendant’s negligence. The plaintiff bad been in the employ of the defendant, at tbe time of tbe injury, six or seven months, acting as brakeman or switchman in placing cars in tbe yard, and in making up trains. He bad been so acting, during tbe night, until six or seven days before the injury, and tbe remaining time during tbe day. On tbe 10th day of September, 1886, the plaintiff, under tbe direction of J. H. Prawley, his foreman, was engaged in moving five flat cars loaded with salt from the main track to house 2 track. .As the train- was moving south, at eight or ten miles an hour, plaintiff was directed by Erawley to throw house 2 switch, and catch the cars as they might come down. In obeying this order, plaintiff passed to the rear and east side of the car on which they were riding, and got down upon a step, and stood with one fpot resting on some part of the truck, with his face to the car, and leaning against it, with his arms.over the side board, ready to get off on reaching some convenient place. While in that position, the bulge of the stand of a switch leading to the weighing scale struck him near the hip, and knocked him off. 4 His left hand went under the wheel, and was so crushed that it became necessary to amputate the arm about half way between the hand and the elbow. The distance from the bulge of the switch-stand to the side of the car was nine or ten inches. The defendant’s printed rules to govern train-men and others in .its employ were given in evidence, with the certificate of the defendant’s superintendent that plaintiff had been examined on them. Of these rules the one hundred and fifty-fifth is as follows: “No wood, timber, freight, or material of any kind will be allowed within six feet of the main track. No buildings of any description will be allowed nearer than six feet to the main track, nor nearer than five feet to any side track. Trees or other obstructions liable to fall on the track must be immediately cut down or removed.” The plaintiff said that he knew of this rule, and expected to find the track clear; that he knew there was a switch-stand there, but did not know, and had never been informed, that it was so near. The evidence showed that most of the work in the yard was done on the west side, but that sometimes the men rode on the east side. It did not appear, however, that plaintiff had ridden or gotten off on that side before. The ground on the west side of the track was level, and the grade was above the level of the ground on the east side; but the switch that the plaintiff was ordered to throw was three or four rods east of the track on which the plaintiff was when the order was given. The switob-stand bad been placed by tbe defendant about 14 years before. Tbe case was tried by a jury, wbo found the issues for tbe plaintiff, and assessed bis damages at tbe sum of $6,000. Tbe defendant entered a motion for a new trial, which was overruled by tbe court, and judgment was, entered on tbe verdict. From that judgment, and from tbe order denying a new trial, tbe defendant appealed. It assigns as error that tbe evidence was insufficient to authorize the verdict, first, because it did not show negligence causing tbe injury on tbe part of tbe defendant.

Tbe presumption is that switchmen were expected to get down on tbe east side of tbe car, because a ladder was placed there for them to get down on, and it was tbe most convenient place for tbe plaintiff to get off tbe car to set tbe switch that be was directed to throw. It was natural for him to get off at tbe most convenient point, although it was not as level as it was on tbe other side of tbe track. He would hardly be expected to get off on tbe west side, and wait until tbe train bad passed, in order to throw a switch on tbe east side. Tbe defendant should have anticipated that switchmen or other persons might deem it convenient to be on tbe ladder when passing tbe switch, and without observing or thinking that it was dangerous to be upon it. Tbe officer or agent of tbe company, whose duty it was to locate switches, ought to have used, as a reasonable man, sufficient forethought to have anticipated danger from a switch-stand within nine or ten inches of tbe side of a passing car. In tbe control of dangerous - agencies great care should be used with respect to human life and personal safety. It appears from tbe evidence that tbe switch-stand erected above the ground, as this one was, was not necessary, and that a ground-switch would have answered every purpose. By forbidding, as it did in rule 155, .the placing of any freight, material, or building of any kind within six feet of tbe main track, and within five feet of any side track, tbe defendant indicated a belief that any solid object standing alongside of the track, in tbe form of a switch-stand or otherwise, within six feet of tbe main track, or within five feet of a side track, was dangerous, and that due care and caution required such pro-bibition. Tbe jury was authorized to find from tbe evidence tbat tbe switcb-stand in question was in dangerous proximity to tbe track, and tbat defendant knew it, because it was placed by tbe defendant where it was about 14 years before tbe time of tbe injury, and bad been permitted to stand there ever since. Therefore tbe evidence warranted tbe jury in finding tbat defendant was guilty of negligence.

In tbe case Railroad Co. v. Russell, 91 Ill., 298, tbe court held it to be culpable negligence in tbe railroad company to permit a telegraph pole to stand, for three years, within 18 inches of freight cars passing on a side track, so tbat a brakeman descending from tbe top of such a passing car, in tbe performance of bis duty, was thrown from tlie car by a pole, and killed. In permitting an awning frame to project 18 inches from a station-house, even with and about 18 inches above tbe inside edge of a car passing, the court held that the company was guilty of negligence. Railroad Co. v. Welch, 52 Ill., 183. In another case tbe court held tbat tbe company was negligent in permitting a beam of a bridge to be so low as to strike the bead of a man standing on the top of a caboose. Railroad Co. v. Irwin, 16 Pac. Rep., 146. Tbe defendant' also claims tbat plaintiff was guilty of negligence, without which tbe injury complained of would not have occurred. Tbe plaintiff testified in substance tbat be knew there was a switch-stand in the vicinity, but bad never been informed, and did not know, that it was near enough to the track to strike a person getting down as he was; that be had worked in tbe yard, in the daytime, seven or eight days; that bis attention bad never been directed to, nor had be ever noticed, its position with respect to the track; that he knew that he was on the main line, and was familiar with rule 155, and understood it to mean that no obstruction should be within six feet of the track. It also appears that there was a number of tracks on the west side, and his work had been done there; that his face was turned towards the west, as it naturally would be, in getting down on the ladder on the east side. Under these circumstances, ought the plaintiff to have known of tbe dangerous proximity of tbe switob-stand to tbe track? Ought be to have seen tbe danger, and avoided tbe injury? It was tbe duty of another agent of tbe road to locate switch-stands, and to see that the track was clear, so that brakemen and switchmen could discharge their duties without any unnecessary risk therefrom. We are not prepared to bold that a switchman, with tbe experience and opportunities of observation that plaintiff possessed, and with such care as prudent switch-men ordinarily exercise, might not bave failed to discover tbe danger to which tbe plaintiff was exposed. Tbe furthest we can go is to say that reasonable men may honestly differ as to the effect of, the evidence, and disagree as to its sufficiency to show contributory negligence; and, that being so, it was within the province of the jury to decide, and we cannot say that the court below erred in refusing to set aside their finding as to that question.

It is said, however, that the peril was one assumed by the plaintiff on entering the service of defendant. It is true that the company was not liable for the ordinary risks incident to plaintiff’s employment, or to such dangers as he might have known and avoided in the use of reasonable diligence. But he did not assume such risks as without fault on his part he might be exposed to by the negligence of the defendant. Tn the case of Hullehan v. Railroad Co., 32 N. W. Rep., 529, it appeared the plaintiff, a switchman, struck his toe against a piece of wood allowed to lie along the track, and was thrown down and injured by a car that he was attempting to couple. The court said: “The evidence shows that the plaintiff, when he received the injuries, had only been in the defendant’s employ as a brakeman about two weeks; that he knew there was wood scattered along the tracks near the wood-pile on the road, but that he had not noticed that wood was scattered along the track at the place he was injured. . . . His evidence shows that he had a general knowledge of the neglect of the company in keeping its tracks clear about its wood-yards. There is, however, no evidence showing his knowledge of the condition of the track at the place where the injury occurred. This evi-cLence is not conclusive upon tlie plaintiff that he assumed all risk which arose from such neglect of the company. Even had he known of the existence of the wood lying along the side of the track at the place where he was injured, it would not be conclusive against him. He might have a general knowledge of the defects of the road, but may not have had such knowledge of the dangerous character of such obstructions as to absolutely charge him with the assumption nf all risk arising from such obstructions. Notwithstanding his knowledge of the fact of the obstruction, still it was a question for the jury whether he was guilty of negligence in remaining in the employ of the defendant after such knowledge. For this reason, and because there was no evidence that he had knowledge of the particular obstruction which caused the injury, we cannot say that the verdict of the jury upon this question is against the evidence.” In the case of Railroad Co. v. Irwin, supra, the court said: “It is true that he had run over the road, and through the bridge, daily, for three months preceding the accident. He knew of the existence of the bridge, and that it was constructed with overhead timbers; but it does not necessarily follow that he was acquainted with the proximity of the braces to the top of the caboose or cars. When he entered the service of the company, he assumed the ordinary risks incident to the service, and if he enters or continues in the service with a knowledge of the risk or danger, and without objection, he must abide the consequences. . . . The law, however, does not require that an employee shall know of all defects or obstructions that may exist on the road, or in the service in which he is engaged. And it cann&t be said that the peril in this case was so obvious and patent that Irwin must have known it. He had a right to assume that the company had done its duty and placed its track in such a condition that he could perform his duties with reasonable safety.” To the same effect axe Railroad Co. v. Russell, supra; Railroad Co. v. Welch, supra, and White v. Worsted Co., 11 N. E. Rep., 75. Inasmuch as our view of the law accords with the cases cited, we will not extend this opinion by adding a consideration of numerous, other cases to wbicb reference was made in tbe argument of counsel. Other errors are assigned on this record, but we do not find any of them sufficient to authorize a reversal. Therefore we affirm the judgment of the court below.

HENDERSON, J., and BobeMAN, J., concur.  