experts. No one knew better than himself the extent to which the bank had been undermined, or could better judge of the peril," and holding that being fully informed of the peril the plaintiff had no cause of action. Fully seeing the danger here, the deceased voluntarily exposed himself to it, and he must be held to have assumed all the risk of working where he did, and plaintiff must bear the consequences.

Under the evidence, of this case there was no cause of action, and the court ruled properly. The judgment must be affirmed. Judgment affirmed.

WALKER, J.-I am unable to concur in the reasoning or conclusion in this case. I regard the opinion as in direct conflict with many previous decisions of this court, and virtually deprives parties of trial by jury, and substitutes the court for a jury. I therefore dissent toto cœlo.

DICKEY, J.-I think it a question of law whether there is any evidence tending to prove a given allegation, and that it is a question of fact whether a given amount of evidence is reasonably sufficient to sustain such allegation. The former is a question for the court, the latter a question for the jury, subject to revision by the court on a motion for a new trial. I therefore cannot concur in the proposition that though there may be some evidence tending to prove every essential allegation of a plaintiff, the court may properly take the case from the jury and direct a finding for defendant, merely because, in the judgment of the court, the evidence in support of some material allegation is not reasonably sufficient in force to sustain a verdict for plaintiff.

RASMUSSON, Adm'r,

V.

CHICAGO, R. I. & P. R. Co.

(Advance Case, Iowa, Dec. 5, 1884.)

A servant of a railroad company was employed as a shoveler in loading a dirt train. A switch had been run close to a bank which said servant in company with others was engaged in undermining. When the bank fell the loose earth was loaded on the car. The servant had been engaged for some time on this work without objection, but upon one occasion was killed by the bank falling on him. In an action by his administratrix to recover damages for his death, held, that decedent must be held to have assumed all the risks of his employment and that hence there could be no recovery.

APPEAL from Pottawattamie Circuit Court.

This is an action to recover damages of the defendant for the death of one Larsen, who, it was alleged, was killed by the falling of a bank of earth at which he was engaged in shoveling dirt.

It is alleged that there was mismanagement and negligence in the company in the construction of the side track, in use at the bank, so close to the bank as to interfere with the escape of the shovelers when the bank caved and fell, and that there was negligence in the manner in which the bank was worked, and that by means of such mismanagement and negligence the deceased was killed, and that the injury was occasioned without fault or negligence on his part. At the conclusion of the introduction of plaintiff's evidence the defendant filed a motion for the court to direct the jury to return a verdict for the defendant, upon the grounds that there was no evidence showing any of the acts of negligence charged, and that the evidence showed without conflict that the deceased was guilty of contributory negligence, and that he assumed all the risks incident to the service in which he was engaged. The motion was sustained and a verdict returned for the defendant, upon which judgment was rendered. Plaintiff appeals.

E. A. Babcock, for appellant.

Thos. S. Wright and Wright & Baldwin, for appellee.

ROTHROCK, C. J.-It appears from the evidence that the deceased had been in the employ of the defendant for about one year. His employment was that of a shoveler in loading and unloading a gravel or dirt train. A switch was laid to a bank of earth near Avoca in the fall of 1879, and the deceased and the crew with which he was connected were engaged from that time until the accident happened in moving earth with an engine and train from the embankment, and depositing it at another point in the road. The work was done by undermining the embankment and allowing the dirt to fall, and then loading it upon the cars with shovels. This undermining was the mode adopted to bring the earth down. The accident which resulted in decedent's death occurred in January, 1880. On that day, he, with others of the gang, was engaged in undermining the bank, and part of it fell upon him and he was instantly killed. There is not one word of evidence that he at any time made any objection to the manner in which the work was done. On the contrary, it affirmatively appears that he assisted in creating whatever danger there was in undermining the bank, and he must have seen and known, as clearly as any one, the results likely to ensue from the work he and others did at the bank. The switch track was laid near the bank, so that the dirt could be conveniently loaded upon the cars. The evidence does not show that there was any negligence in laying it too close to the bank, or that it could have been properly laid at any greater distance from the bank.

There was no conflict in the evidence, and we think, as matter of law, the plaintiff was not entitled to recover, and that the court correctly directed a verdict to be returned for the defendant. Affirmed.

CROWLEY

V.

BURLINGTON, C. R. & N. R. Co.

(Advance Case, Iowa, September 18, 1884.)

Where a railroad car is propelled on a track at an immoderate rate of speed, and a laborer employed about such track, who is near being run over, jumps to get out of the way, and inadvertently steps upon ice and slips and is run over, it cannot be said, as a matter of law, that the improper speed at which the car was propelled was not the proximate cause of the accident.

The rule which requires a traveler about to cross a railway track to look in both directions for approaching trains is not applicable, in its strictness, to an employé at work on the track, because such an obligation would be inconsistent with proper attention to his work.

Instruction that the city ordinance regulating the rate of speed at which cars should be run was applicable to the place where the injury in this case was inflicted, held proper.

APPEAL from Benton District Court.

The plaintiff seeks to recover damages by reason of the alleged negligence of the employés of defendant, whereby plaintiff was struck and injured by a moving car. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals. J. & S. K. Tracy, for appellant. Bowman & Swisher, for appellee.

ROTHROCK, C. J.-The plaintiff was employed by the defendant as a laborer in cleaning snow and ice from its tracks and switches, and he claims that on the ninth day of February, 1881, while so employed in the yard of defendant at the city of Cedar Rapids, the defendant negligently caused one of its cars, with great force, and at a speed in violation of the ordinances of said city, to strike plaintiff and to run on and over his right arm, by which he was greatly injured, and that such injury was received without any negligence on his part. The answer, in addition to a general de nial, avers that if plaintiff was injured by a moving car it was by his own want of proper care and caution in not looking and listening for moving cars, and in not keeping out of the way of such

cars.

The plaintiff was a witness upon the trial, and his testimony, as abstracted by appellant, is as follows: "I am plaintiff in this suit. Am fifty-one years old and live at Cedar Rapids. At the time of the accident I was working for defendant as a section hand in its yards at Cedar Rapids, cleaning out snow from the switches. There was a little ditch at the switch I was cleaning out, so the water could run through. Just before I got hurt I was standing

outside of the track, between it and a snow-bank, which was three or four feet high, at the side of the track, cleaning this ditch. I always looked every once in a while. I was very careful and looked out for myself, because I was a little hard of hearing, and it made me more cautious to look out. It had been thawing, the snow had melted, and the water was running. The accident happened in the afternoon, at about three or four o'clock. A car came along and was pretty close to me, when I raised my head and looked. I then jumped to get out of the way of the car, and my foot slipped or caught in some way, I can't tell how, and before I could get out of the way the car came up and hit me, knocked me down on my face and hands, and broke my arm in three places. I had been working for the company about four years. At the time I got hurt I was getting one dollar and twenty-five cents per day. My arm is very painful yet, and I suffered awfully, and can hardly do anything at all. I had been working about two months in this yard before I got hurt. There is a great deal of switching done there in the yard, and cars are moved up and down constantly, and hence it is a dangerous place to work unless you look out and watch. At the time I was cleaning the snow out of the track and this little ditch, and was standing on the west side of the track, between the snow-bank and the track. The track is nearly straight there. You can look down the track (south) some two or three hundred yards. You can see the track down to the switch target. I did not see this car coming until it was close onto Then I attempted to get away from the track, and my foot slipped, and the car struck me. I was outside of the track, between it and the snow-bank, when I slipped and fell."

me.

The plaintiff, in an additional abstract, sets forth the following as an amendment to his testimony: "During February, 1881, at the time I got my hurt, I was section hand or repairsman on the B., C. R. & N. Ry., and my run was from Cedar Rapids to Linn Junction. I went out on the line on a hand car. I was under the direction of an overseer or boss. I was directed by the boss, on the morning of February 9th, to clear the switches on the track, so that the water would go from the switches. When I was clearing out the switches there was a bank of snow beside the track. I was cutting a drain through the bank of snow to let the water from the switch into the street. At the time the car struck me, as near as I can remember, I was standing with my face towards the track, on the outside, kind of half towards the track-in between the track and bank of snow. The bank of snow was between three and four feet high. The water was running that day. I was out in the middle of the afternoon, about three or four o'clock."

The foregoing was all the testimony given by plaintiff as to the cause of the accident, and all the witnesses testified substantially to the same facts. There was a conflict of evidence as to the

speed with which the car was moving at the time of the accident, but the jury was warranted in finding that it was running at the rate of from ten to twelve miles an hour. By an ordinance of the city, which was introduced in evidence, no car or engine was permitted to run along any railroad track in the city at a greater rate of speed than six miles per hour. At the close of the introduction of plaintiff's evidence, the defendant moved the court to direct the jury to return a verdict for the defendant. The motion was overruled. The defendant excepted to the ruling, and now claims that it was erroneous.

It is claimed that the evidence shows that the plaintiff was outside of the track and away from danger, and that he slipped and fell on the snow and ice and thus came in contact with the car; and it is urged that the speed of the car was not the proximate cause of the injury; but it was caused by the plaintiff's slipping and falling after he was out of danger.

We do not regard the evidence as at all clear upon this point. It does not appear that the plaintiff was run over by the wheels. He received his injury by a collision with some part of the car. But if we were to concede that he was out of danger and slipped, and thus came in contact with the car, we do not think that it can be said that the speed of the car was not the cause of the injury. It is not claimed that the company was negligent in allowing the snow and ice to remain so hear the track; but those alone would not have created the danger. If such snow-banks and ice must exist in close proximity to the track, and where the employés of the company must do their work, there is the more necessity for a prudent movement of the trains and engines among them.

The plaintiff testified as follows: "I jumped to get out of the way of the car, and my foot slipped or caught in some way." We think it was a fair question for the jury whether, if the car had been moving at a proper rate of speed, the plaintiff might not have moved out of the way with such deliberation and care that he would not have fallen. If a horse is improperly driven upon a street, and a person who is near being run over jumps to get out of the way and inadvertently steps upon ice and slips and is run · over, it cannot be said, as a matter of law, that the improper speed with which the horse was driven was not the proximate cause of the accident. It is true that the accident might have happened if the car had been allowed to approach him only at a proper rate of speed. No one can determine with certainty how it would have been. We think that was a question to be determined by the jury, in view of all the circumstances shown.

Again, it must be remembered that the plaintiff did not bear the relation of a stranger to the defendant. He was not on the track and in a place of danger for his own convenience, curiosity or pleasure, nor even as a traveler at a crossing. He was an employé