& Ohio R. R. Co., 109 U. S. 485, 3 Sup. Ct. Rep. 322; Pittsburg, etc., R. R. Co. v. Sentmeyer, 37 Amer. Rep. 684-686.

Plaintiff assumed the risk. C. C. § 1130; Randall v. Balt. & Ohio R. R. Co., 109 U. S. 478, 482, 483, 3 Sup. Ct. Rep. 322; Lovejoy v. Boston & L. R. R. Co., 125 Mass. 79; Ladd v. New Bedford R. R. Co., 119 Mass. 412; Bresnahan v. Mich. Cent. R. Co., 49 Mich. 410, 13 N. W. Rep. 797; Baylor v. Delaware, L. & W. R., 29 Amer. Rep. 208.

It appears that the plaintiff had passed this switch-stand daily for weeks next preceding the injury. B. & O. R. Co. v. Stricker, 51 Md. 47, 34 Amer. Rep. 291; Devit v. Pacific R. R. Co., 50 Mo. 302; Rains v. St. Louis R. R. Co., 71 Mo. 164, 36 Amer. Rep. 459; Pittsburg R. R. Co. v. Sentmeyer, 92 Pa. St. 276, 37 Amer. Rep. 684; Clark v. Richmond R. R. Co., 78 Va. 709, 49 Amer. Rep. 394; Randall v. B. & O. R. R. Co., 109 U. S. 485, 3 Sup. Ct. Rep. 322; 2 Thomp. Neg. 1008; Mich. Cent. R. R. Co. v. Austin, 40 Mich. 247.

The contributory negligence of the plaintiff barred his recov ery. Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642, 656, 6 Sup. Ct. Rep. 590; Gibson v. Erie R. R. Co., 63 N. Y. 449, 453, 454; Beach, Contrib. Neg. 55; Martenson v. Chicago, etc., R. R. Co., 15 N. W. Rep. 569.

The evidence here was such that the question was for the court. 2 Thomp. Neg. 1236; Williams v. N. P. R. R. Co., 3 Dak. 168, 14 N. W. Rep. 97; Pierce, 315, 316; Lake Shore, etc., v. Miller, 25 Mich. 274; Mares v. N. P. R. R. Co., 21 N. W. Rep. 5-8; Albert v. Chicago & M. Ry. Co., 30 Minn. 484, 16 N. W. Rep. 266; Randall v. B. & O. R. R., 109 U. S. 485, 3 Sup. Ct. Rep. 322; Waterbury v. N. Y., etc., R. R. Co., 17 Fed. Rep. 683, note, § 7; Id. p. 685, note 2.

THOMAS, J. This action was brought by the plaintiff, Herman Boss, against the defendant, the Northern Pacific Railroad Company, in the district court of Cass county, to recover damages for personal injuries received by him through the alleged negligence of defendant's servants.

The testimony, as disclosed by the record, tends to show the following facts: On the 15th day of December, 1885, the plaintiff was severely injured by being struck by the switch-signal which stood at a point in defendant's yard at Fargo, between the round-house and depot. On the day of the accident plaintiff was at work for defendant as a section hand, and was employed, with others, in handling wood near the shop or roundhouse. Shortly after noon, the plaintiff, with his co-laborers, boarded one of defendant's trains, to go some distance down the railway track to dinner. This was the usual mode of going to dinner by the employes, adopted at the instance and request of the foreman under whom they worked, in order to get back to their work in proper time. The plaintiff, together with his coemployes and other persons, got upon the front platform of the caboose on this train, and, owing to the great number of persons standing on this platform, was forced to stand on the bottom step thereof, and was in this position when the train moved out, and was struck in the back of the head while the train was in motion by the lever or signal of a switch that stood in the yard, and near the track on which the train was moving. knocked him senseless and from the train. This switch-signal was constructed within four feet of the railway track, and, when in an upright position, was that distance from said track, but when in a leaning or slanting position was so near as to come in contact with the sides of the cars as they passed along the railroad track; and on the day of the accident this lever or signal scraped the sides of the cars of the train on which plaintiff was riding.

The stroke

There is some testimony tending to show that this kind of a switch-signal should have been placed at least six feet from the railroad track in order to be safe, and that such was the distance that they were generally placed by all railroad companies.

The situation and condition of this switch-signal was known to the defendant, while the plaintiff had no knowledge of it whatever.

The case was tried to a jury, and upon motion of defendant

the district court directed a verdict in its favor. Appellant appeals from the judgment of the lower court in favor of defendant, and from an order denying plaintiff's motion to set aside the verdict and grant a new trial, which motion was based on a statement of the case and affidavits of plaintiff and one Bowman. To all of said rulings the plaintiff duly excepted.

The principal contention of plaintiff is that, under the evidence, he was entitled to have the case submitted to the jury, and the court therefore erred in directing a verdict for defendant. We think that under the evidence, as we view it, plaintiff was rightfully on the train, and therefore not in the position of a trespasser, and the railroad company was bound to use ordinary care and diligence for his safety, in default of which it would be liable for his injury, unless he contributed to it by his own culpable negligence.

We think that there is some evidence tending to show want of ordinary care and skill on the part of defendant in the construction of said switch-signal, which was so close to the track as to jeopardize passengers on its trains. We are also of the opinion that the evidence is not of that character which would warrant the district court in holding as a matter of law that the plaintiff was guilty of contributory negligence in bringing about the accident. It may have been negligence to stand on the steps of the platform while the train was in motion, but it was not of such a character as to be the proximate cause of the injury, for he had the right to believe that there was no such obstruction in proximity of the train as the one that inflicted the injury. He had the right to presume that the defendant's railway track was free from such dangers.

If he had been jostled from the train, or had been pushed therefrom by his co-employes, then his negligence in standing on the platform would have perhaps so far contributed to the injury as to prevent a recovery. It not infrequently happens that the injury complained of is so clearly traceable to the misconduct or negligence of the plaintiff that it is the duty of the court to apply the law to the facts without the intervention of a jury;

but in the case at bar the facts are by no means of that character, and the case should have been submitted to the jury, under proper instructions from the court.

The principles announced in the foregoing opinion are so familiar, and so elementary in character, that we deem it unnecessary to cite any authorities in support of them.

The court erred in directing a verdict in favor of defendant, and the judgment, for that reason, is reversed, and a new trial ordered in accordance with the views expressed in this opinion. All the justices concurring.

BERTELSON, Respondent, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant.

1. Railroads-Personal Injuries on Track-Contributory Negligence What Constitutes.

In an action against a railroad company for causing the death of plaintiff's decedent by crushing him between cars at or near a crossing. it appeared the track on which the accident occurred was used to stand cars on: and that it was not a public crossing, but its use had been acquiesced in by the company, and the cars were usually separated at that point. On this occasion they were two or three feet apart, and, as the decedent approached the opening, a train at the other end of the cars was backing towards it at the rate of two or three miles an hour, and as he got onto the track he was caught, and the injuries inflicted. There was nothing to prevent the approaching train being seen and heard by the decedent, who it appeared was in full possession of his faculties. Held, that even though the company's servants were negligent in not observing the opening and decedent's approach, and also in their omission to ring the bell and blow the whistle, still the decedent was guilty of such contributory negligence as would prevent a recovery.

2. Same-Pleading-Proof-Question for Court.

Where gross negligence is not alleged in the complaint, and the proof does not tend to establish it, it is error to submit the matter to the jury. 3. Same Trial-Instructions.

It is error for the court in its charge to call attention to assumed facts of which there is no proof.

(Argued February 8, 1888; reversed February 24; opinion filed October 2,

Appeal from the district court of Turner county; Hon. C. S. PALMER, Judge.

On the subject of gross negligence the court charged the jury as follows:

"Whether or not these defendants were guilty of gross negligence, willful carelessness, or as some of the authorities see fit to describe it, reckless management of their train,' is a question of fact for you to determine from the evidence. It is only in case you find they were exercising such a want of care that their acts became willful recklessness, that the plaintiff would be entitled to recover; and in determining this question of the degree of care, or the want of care, or gross negligence and willful carelessness of the defendant's agents, if any such existed, you have a right to take into consideration all of the evidence that has been given upon this point,-whether or not the bell was rung; the evidence as to the rapidity at which that train was being backed down; the grade upon which the train was running; the number of hands that were upon the train, and their position upon the train,-take them all into consideration, and determine, if you can, whether or not under the circumstances the agents of the defendant were guilty of gross negligence."

J. W. Cary, C. H. Winsor, (Burton Hanson, of counsel,) for appellant.

There was no negligence on the part of the appellant.

case.

The deceased was not in the exercise of proper care, but was guilty of such negligence as will preclude a recovery in this Gunn v. Wisconsin & M. Ry. Co., 35 N. W. Rep. 281283; R. R. Co. v. Huston, 95 U. S. 702; Holland v. R. R. Co., 18 Fed. Rep. 247; Scofield v. R. R. Co., 114 U. S. 615, 5 Sup. Ct. Rep. 1125.

The court should have directed a verdict for appellant. Miller v. Ry. Co., 25 Mich. 274; O'Donnell v. Ry. Co., 8 Cen. L. Jou. 414; Pinchin v. Ry. Co., 13 N. E. Rep. 677; Salter v. Ry. Co.,