Hulien v. Chicago & Northwestern Railway Co.

WiNslow, J. We shall consider but one question in this ■case, and that is the question as to whether the plaintiff’s intestate was guilty of contributory negligencé. Upon this questiofi the material facts are that while his train was standing on the passing track, with another train standing within two or three car lengths, whose engine was engaged in switching, the deceased left the cab of his engine with his fireman, and crawled under his engine for the purpose of tightening the wedge which holds the driving box in position, the fireman being engaged at the same time in tightening a jam nut. Before going under the engine he did not set the brakes of his engine or train, although six or seven cars on the forward end of the train had air brakes [125] connected with the engine. He notified none of the train crew of his own train, save the fireman who was assisting-him; he gave no-warning to the-crew of the other train. He placed no flag or warning at the end of his train, and he placed himself in a spot where he could see nothing of' the movements of the train in his rear. He placed his fireman upon the east side of the engine, where it was practically impossible for him to see any movement of the other train, or signal to its crew. While in this situation his train was moved forward by the impact of tbe train in the rear, and he was killed. It may be assumed, for the purposes of the case, that the employees on the other train were negligent in allowing their train to strike and move the intestate’s, train, and it may also be assumed that the intestate, while tightening the wedge, was engaged in “operating” his engine, within the meaning of ch. 220, Laws of 1893 (sec. 1816, Stats. 1898), although these points are not decided, and no-opinion is intimated upon either of them; and still, if it conclusively appears that the deceased was guilty of contributory negligence, the plaintiff cannot recover. Hpon the facts stated, we are convinced that it must be said as. matter of law, that the deceased was negligent in going-under his engine as he did, irrespective of any rule. Rule J4,. which is set forth in the statement of facts, simply emphasizes the negligence and makes it more glaring. The mere-, statement of the facts seems the most convincing argument. Common sense must say that an engineer who thus goes, under his engine, and remains there a considerable time, leaving the brakes unset, with no signal or warning of any kind, while another engine is operating on the same track in close proximity, takes his life in his hand. To say that such conduct is ordinary care, or that it may become such by proof that others have done it and escaped with their lives, is to. part company with reason. The nonsuit was right. By the Gourt.— Judgment affirmed.