of the defendant, and was at his post of duty. There was a great deal of switching done in the yard, and the evidence shows that "cars are moved up and down constantly," and that it is a dangerous place to work. The plaintiff's duty required him to do the work he was placed there to perform, and he had a right to suppose that the defendant would exercise care to avoid sending cars along the track at an inordinate and unlawful rate of speed.

In Ominger v. N. Y. Central & H. R. Ry. Co., 4 Hun. 59, it is held that the rule which requires 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 his proper attention to his work. In Goodfellow v. B. H. & E. Ry. Co., 106 Mass. 461, the plaintiff was in the employ of a contractor at work for the defendant. He was holding the guy of a derrick, and an engine backed down and injured him. At the trial a verdict was directed for the defendant, and the ruling was reversed. The court said: "There is evidence that he was rightfully where he was, and was not in fault in being engrossed in his work and unaware of the approach of the engine until it was too late to avoid it." We do not think the court erred in overruling the motion.

It is further claimed that the court erred in instructing the jury that the ordinance restricting the running of cars in the city at a rate of speed not more than six miles an hour applied to the switch-yards of the defendant. It is said that the ordinance is applicable only to that part of the city used by the public. This would limit the operation of the ordinance to such places as the public have a right to travel, which would include only public crossings. We do not think it should be so limited in its appli

cation.

There are other objections to instructions given, and to the refusal to give instructions asked, which we do not deem it necessary to discuss in detail. None of them appear to us to be well taken. We think that the case was fairly tried and presented to the jury, and that the verdict is fully supported by the evidence.

Affirmed.

Care Required of Workman Employed in Repairing Track.-As to the measure of care required on the part of servants of the railroad company engaged in repairing the track to watch for trains, see the following cases: Kelly v. Union Ry. & Transit Co., 11 Mo. App. 1; Goodfellow v. B. H. & E. R. Co., 106 Mass. 461; Schultz v. Chicago & N. W. R. Co., 44 Wisc. 638; Dick v. Indianapolis C. & St. L. R. Co., 38 Ohio St. 389; s. c. 8 Am. & Eng. R. R. Cas. 101.

KNAPP

v.

SIOUX CITY & P. R. Co.

(Advance Case, Iowa, October 24, 1884.)

K., a locomotive engineer, was running a train on defendant's road, when, by reason of the defective condition of the rails, they spread, and a part of the train was thrown from the track, and K., to protect himself and the property under his charge, reversed the lever to stop the train, and in so doing broke his arm. K. sued the company for damages, and the court directed a verdict for defendant. Held, that it could not be said as matter of law that the negligence of the railroad company was not the proximate cause of the injury, and that the case should have been submitted to the jury.

APPEAL from Pottawattamie District Court.

The plaintiff is a locomotive engineer, and was in the employ of the defendant, and the petition states that while the plaintiff, as such engineer, was in charge of a locomotive drawing a train of cars over defendant's road, the "locomotive and train were thrown from the track," and the plaintiff's right arm broken; that the "accident was caused by the negligence and faulty construction of the track; * * that the ties were rotten, and

*

insufficient to hold the sleepers and rails, or weight of a passing train;" and that the accident was not caused by the negligence of the plaintiff. The material allegations of the petition were denied. Trial by jury, and judgment for the defendant. The plaintiff appeals.

Sapp, Lyman & Pusey, for appellant.

Wright & Baldwin, and Joy, Wright & Hudson, for appellee.

SEEVERS, J.-The material question presented in this record is whether the negligence of the defendant was the proximate cause of the injury received by the plaintiff. The evidence tended to show that the rails spread, and a portion of the train left the track. The locomotive remained at least partly on the track. The train consisted of the engine and several freight cars. When the plaintiff found the train was about to run off, or that a portion of it was off the track, he caught the lever, and, in reversing it, his arm was broken. His object in reversing the lever was to check as soon as possible the speed of the train. the conclusion of the plaintiff's evidence the defendant filed a motion which is in these words: "Now comes the defendant and moves this court to instruct the jury to return a verdict for the defendant, and for grounds of said motion states (1) that the

At

undisputed testimony discloses that the injury for which the plaintiff seeks to recover in this case was received by plaintiff while reversing his engine, and that the risk of accident in the operation of the engine is one incident to the employment, for which plaintiff has no right of action; (2) that plaintiff has not shown that the defective ties and track occasioned the injury complained of, but that the same occurred and was sustained while reversing the engine." The motion was sustained and the jury instructed accordingly.

It will be observed the petition states that the accident which caused the injury was caused by the locomotive and train being thrown from the track, and counsel for the appellee insist that the evidence shows that the engine did not leave the track, and that it affirmatively appears the injury was the result of the act of the plaintiff in reversing the lever, and therefore there is a material variance between the allegations of the petition and the proof. For this reason it is insisted the court rightly directed the jury to find for the defendant. It must be presumed that the court gave the direction asked on the grounds stated in the motion. It does not appear therefrom that the defendant claimed in the district court there was a variance, and that for this reason the jury should be directed to find for the defendant. Such question cannot be raised for the first time in this court. Had the motion been based on such ground the right to amend would have existed. It would be manifestly unjust to deprive the plaintiff of such right. This, however, would be the effect if we should affirm the judgment of the district court.

The plaintiff was injured while he was reversing the lever. There is no evidence tending to show that this was rendered more difficult because the train or a portion of it was off the track. If the lever had not been reversed, it cannot be said the plaintiff would have been in any respect injured. It must, however, be assumed that when a train leaves the track, the lives of the employés are endangered. The lever is moved forward, as we understand, for the purpose of starting the train or increasing its speed, and is reversed when it is desired to stop the train as speedily as possible. This forward and backward movement of the lever, no doubt, frequently occurs in a day's run. therefore, of the lever must be regarded as one of the incidents and hazards of the plaintiff's employment, and for an accident happening by such use, by which the engineer is injured, it will be conceded the defendant cannot ordinarily be held liable. The immediate cause of the injury received by the plaintiff was the reversal of the lever. The lever was reversed because the train left the track, and this was caused by the spreading of the rails caused by the defective condition of the track. There was, therefore, a combination of immediate causes remotely preceded by others.

The use,

An

No event can occur, it is believed, which is entirely independent. "The links in the chain of causation are endless." The law has adopted a practical rule that the proximate cause of an injury only can be recognized. When it is ascertained further inquiry is closed. The real difficulty lies in the application of the rule. eminent judge has said: "The general rule of law, we understand, is that where two or more causes concur to produce an effect, and it cannot be determined which contributed most largely, or whether, without the concurrence of both, it would not have happened at all, and a particular party is responsible only for the consequences of. one of these causes, a recovery cannot be had because it cannot be judicially determined that the damage would have been done without such concurrence; so that it cannot be attributed to that cause for which he is answerable." Shaw, C. J., in Marble v. City of Worcester, 4 Gray, 395. The same rule has been more briefly stated by Beck, J., in Dubuque Wood & Coal Ass'n v. City and County of Dubuque, 30 Iowa, 176. Conceding this to be a correct statement of the law, we have to inquire whether the district court correctly applied it to the facts of this case, and we feel constrained to say that, in our opinion, it did not.

Ordinarily, trains remain on the track. If they do not, it must, ordinarily, be assumed it was caused by the negligence of some one, unless the accident appears to have been inevitable. In this case it must be assumed that the negligence of the defendant caused the train to leave the track. The plaintiff was called on in a sudden emergency to act. It cannot be expected that he would remain passive. He was justified in so acting as to best protect himself and preserve the property under his charge. If he had sprung from the engine to the ground and been injured, he undoubtedly could have recovered, provided he acted prudently in so doing. Bucl v. New York Cent. R. Co., 31 N. Y. 314; Coulter v. American Exp. Co., 5 Lans. 67. Instead of doing this he concluded to reverse the lever. Now, whether this was the proper thing to do, and whether the plaintiff was negligent in so doing, it was for the jury to say. Conceding the plaintiff was not negligent, and that the injury was not received because of inevitable accident, then, it must follow, the negligence of the defendant caused the injury. True it is, that reversing the lever is one of the ordinary hazards of plaintiff's employment; yet, if the negligence of the defendant required such act to be done at that particular time, and the plaintiff was not guilty of negligence, but, on the contrary, acted prudently, with due regard for his own safety and the safety of others, then the defendant is liable, because the negligence of the defendant is the proximate cause of the injury.

We are unable to distinguish this from the "Squib" case, which was decided years ago, and has been frequently referred to. In

that case a squib was thrown from place to place, until finally a person was injured by it. The first person who so threw the squib was held liable for the injury. Scott v. Shepherd, 2 W. Bl. 892. Each person subsequent to the first threw the squib to protect himself and his property from injury. So, here, the plaintiff reversed the lever to protect himself and the property under his charge from consequences which would probably follow the negligent act of the defendant. See, also, Palmer v. Andover, 2 Cush. 600; Allen v. Hancock, 16 Vt. 230; Woodward v. Aborn, 35 Me. 271; It may possibly be true, as suggested by counsel for the defendant, that if the plaintiff had been injured as he was while reversing the lever for the purpose of stopping the train to prevent it from running over cattle on the track, that the defendant would not be liable, although the cattle got on the track because it was not fenced. It is sometimes exceedingly difficult to determine to which class a case belongs. But there is, and must of necessity be, a dividing line. It may, apparently, in some cases, have the appearance of being arbitrary. This cannot be avoided. But, we think, the failure to fence would be more remote from the immediate cause of the accident than in the case at bar. Besides this, to reverse the lever for such a cause might well be regarded as one of the ordinary hazards. Reversed

MADDEN

v.

MINNEAPOLIS & ST. L. Ry. Co.

(Advance Case, Minnesota, July 18, 1884.)

The road of defendant having got into bad condition it was engaged in general repairs of the same by resurfacing and taking up the old and putting down new ties and rails. Plaintiff was in its employment as a brakeman on a gravel train engaged in drawing gravel for the purpose of such resurfacing, and while so employed was injured by a car on which he was acting as brakeman running off the track in consequence of its bad condition. Held, that the rule that it is the duty of a master to use reasonable care and skill to furnish his servants safe and suitable instruments and means to perform the service in which they are engaged applies in the case. In that regard the duty of the master and assumption of risk by the servant are the same in case of employment to make repairs as in any other employ

ment.

Evidence considered, and held sufficient to justify a finding that plaintiff did not know, and might not, though using reasonable diligence, be able to ascertain, the danger to which the bad condition of the track exposed him.

APPEAL from an order of the District Court, Waseca county, denying motion to vacate verdict and give new trial.