And the servant has a right to understand that the master will exercise that diligence in protecting him from injuries, and in selecting the agent from which it may arise. Connolly v. Poillion, 41 Barb. 366.

SPENCER, J., (after stating the facts as above.) The evidence in this action, when construed most favorably to the plaintiff, discloses that in November, 1885, he engaged his services to the defendant as a laborer; that he and a considerable number of other men were at work under the supervision of one Mahoney, as foreman, in the work of shoveling gravel from a gravel bed or bank onto a train of platform cars, which, when loaded, were drawn to Sioux Falls, a distance of a few miles, emptied, and returned to the pit for the purpose of being reloaded; that the plaintiff had been thus engaged 10 days or more when the accident complained of occurred; that about November 25, 1885, an overhanging bank of the gravel-pit, 12 or 13 feet high, having been produced by the removal of gravel under and adjacent to it, was attempted to be pried down by the foreman, who for that purpose went upon the bank with a bar, and commenced prying, having first given the men in his charge notice of what he was about to do. The plaintiff and the other men at work heard the warning, and stopped working for a few moments, and watched the foreman's efforts to pry down the bank. The bank failing to yield to his efforts, the foreman told the men to proceed with their work. The foreman continued his efforts to break down the bank, and the plaintiff returned to his labors at a point from which he could see him, (the foreman;) and when he supposed he was in a place of safety, to use his language, "We went to work again. In mean time, while I was yet at work, the boss was breaking on that piece upon the bank.

*

I thought we were so far away from the cut, we were out of the way. I thought sure it could not hurt me. Then I saw it come,-I saw the bank come down. I was trying to get back. There was a big chunk lying in the way. I got one foot out of the way, but the other got caught. I ran against this chunk

behind me, and fell down on it. Then I tried to get my leg out,

and I could not do it. *

They broke out the dirt above my leg, and got it loose. Then I saw it was broken. The chunk that fell on my leg and broke it came from the top of the bank, the piece he broke down. I did not hear him tell us to

look out any more after he told us to go to work. When the bank broke, he hollered, Look out!' There were about twenty men employed there loading trains with gravel. These men were all working under Dan. Mahoney, as foreman. He would help get the gravel and dirt down to load the trains. Mahoney was up on top of the bank just before I got hurt. He was trying to pry down the top of the bank. I saw him there. He would take the crow-bar and pry off the top of the bank, and push it down. I saw him pushing the frozen dirt off. I thought I was far enough away. When it came down I stepped backwards, and struck the frozen clod that was lying there, and fell over. The part that fell down there struck me after I fell down there. That is the way the accident happened. Mahoney would tell us when to shovel. He did not exactly say which place we should shovel; told us to go around the cars, and go to work. He would tell us to load the train. I believe he did sometimes take a hand himself in loading, and at other times. he would pry down the bank for us to load what he pried down." The train being loaded at the time of the accident comprised 14 cars. This was substantially all the evidence in the case in favor of the plaintiff's right to recover, and it is obvious that it wholly fails to establish negligence on the part of the appellant. There is no pretense that Mahoney was not an entirely competent person for foreman, or that the defendant was guilty of any negligence in engaging his services in the capacity in which he was employed. Was the foreman himself negligent? It will not be pretended that it was negligence in him going upon the bank, and attempting to break it down, especially as he gave warning to the men in his charge, which the plaintiff understood, that he was about to do so. Nor can it rightfully be said that his negligence in continuing his efforts to pry off the bank,

after directing the men to return to work, and without informing them that he was doing so, was negligence to this plaintiff, or that it resulted in the injuries complained of. He did not ask them, or any of them, to work in any place of peril, but merely to load the train. The plaintiff evidently did not understand that he was to work under or in such close proximity to the overhanging bank as to endanger his safety. On the contrary, when he returned to his work he took his place, as he says himself, not very near to the bank, but at some distance from it; so much removed from it that he believed it was to him a place of safety, and, though it might fall, as it did, it could not reach him. He was fully acquainted with the circumstances and the condition of the pit; had been constantly employed there for many days preceding the accident; and of his own judgment, and without let or hinderance, selected a place at which to perform his work. There was therefore no negligence proven on the part of the defendant or the foreman.

Another sufficient defense under the facts as established by the evidence in behalf of the plaintiff is that the injury complained of was one of the ordinary risks which he assumed when he engaged his services to the defendant, in the business which he undertook. He was a person of usual intelligence, in possession of all his faculties. He was entirely familiar with the gravel-pit, the height of the embankment, and the effect of the thawing frost upon it; also that the foreman and conductor were trying to pry it down. He saw them at work, and understood the situation in all respects; and notwithstanding it was fraught with danger to a greater or less extent, (and this it was, to his own knowledge,) he assented to incur the dangers to which he was thereby exposed, and proceeded with his work. It is difficult to perceive in this case that any precautions for his safety had been neglected, but, if they had, having consented to serve in the way and manner in which the business was being conducted, with full knowledge thereof on his part, he cannot now be heard to complain. The following cases are analogous to the one at bar, and fully sustain the respondent's contention:

Naylor v. Railroad Co., 53 Wis. 664, 11 N. W. Rep. 24; Sullivan v. Manufacturing Co., 113 Mass. 396; Olson v. McMullen, (Minn.) 24 N. W. Rep. 318; Railway Co. v. Lempe, 11 Amer. & Eng. R. Cas. 201; Leonard v. Collins, 70 N. Y. 90. The trial court erred in denying respondent's motion for direction of a verdict in its favor, and in overruling its motion for a new trial. The judgment must therefore be reversed, and a new trial ordered. Judgment reversed.

All concur, except Justice PALMER, dissenting.

ELLIOT, Respondent, v. CHICAGO, M. & ST. P. Ry. Co., Appellant.

1. Master and Servant-Negligence-Fellow-Servants - Who

are.

A section foreman and the conductor of a train are co-employes within the meaning of the rule of the common law, and also section 1130, C. C., providing that an employer is not bound to indemnify his employe for losses suffered by the latter in consequence of the negli gence of another person employed by the same employer in the same general business.

2. Same-Contributory Negligence-What amounts to.

In an action against a railroad company by a widow, to recover damages for causing the death of her husband through alleged negligence, it appeared a "flying switch," in violation of the rules of the company, was being made by the direction of a conductor of a train, and the deceased, in endeavoring to cross one of the tracks, was caught by the rear section of the train and killed: but it also appeared that he must have known the switch was being made, and that he could have seen this section had he turned and looked in its direction before stepping on the track. Held, the deceased was guilty of such contributory negligence as would defeat a recovery.

3. Evidence-Relevancy-Habits of Care.

On an issue of a deceased person's contributing to the negligent act causing the death, where there were eye-witnesses of the occurrence, the fact of his being a usually careful man is immaterial.

(Argued May 9, 1887; reversed May, 1887; reargued May 11, 1888; opinion filed February 9, 1889.)

5 523 1n 349 41* 758

48* 225

Appeal from a judgment of the district court of the Fourth district, in and for the county of Clay, entered in favor of the plaintiff, upon a verdict.

The action was brought to recover damages for the death of John Elliot, plaintiff's husband, alleged to have been caused by defendant's negligence.

The deceased at the time of his death was in the employ of the defendant as a section foreman, and the injuries from the effect of which he died were occasioned by the negligence of other of defendant's employes in running a freight train, and while making a flying switch. The facts and circumstances connected with the accident, so far as material, are stated in the opinion.

R. B. Tripp, (H. H. Field, of counsel,) for appellant.

There was no negligence on the part of the defendant or its employes which caused or contributed to the accident.

The charge of negligence is that the conductor of the train made what is claimed to have been a "flying switch," in alleged violation of the rules of the defendant.

The court charged the jury that the mere fact that a flying switch was made, even if it was in violation of the rules of the company, would not be sufficient evidence of negligence to make the defendant liable, and such is the rule laid down by the authorities. Youll v. Ry. Co., 66 Ia., 346, 351, 23 N. W. Rep. 736; Jeffrey v. R. R. Co., 51 Ia., 439, 1 N. W. Rep. 765.

But the court submitted to the jury the question whether or not there was negligence on the part of the conductor in the manner in which the alleged switch was made. While it is undoubtedly true that the making of a flying switch in a populous city or village, or over highway crossings, may be negligence as against the public rightfully crossing railroad tracks, it has never been held that making such a switch by a company on its own grounds was negligence as to employes. It is not negligence for a railroad company to move trains on its station grounds without giving warning to employes engaged thereon, where there