In view of the earnest contention of counsel in their petition for a rehearing, we have again read the entire record. From such reading, we are more convinced than ever that plaintiff's conduct was not that of a man of ordinary prudence under the circumstances and that his lack of reasonable care contributed proximately to his injury. It may be, as the witness Wryk said, that plaintiff was reaching for the car seal when he passed Wryk at the pit, although plaintiff himself said he was trying to read the car number.
Assuming, then, that plaintiff did not have the option of passing on the other side of the table to get to the car seal, he nevertheless was familiar, by his three years of observation and experience, with the practices of defendant's employes in unloading cars. As described by Wryk and not disputed by plaintiff, the men engaged in unloading cars worked in pairs, first shoveling the grain out of a car and through the grating into the pit. Then, if it was necessary to clean the pit before another car was unloaded into it, they would take up the removable section of the grating. One would go down into the pit while the other remained at the top by the control table to watch his crew mate and, of course, as appears from other evidence, to stop or otherwise control the conveyor, as well as to warn a passer-by of the open grate. Other pairs of men worked at other pits. Obviously, only one carload of grain could be unloaded at a time and the pit emptied if credit for the loads of grain was to be kept separate.
Assuming the truth of the rather incredible testimony of plaintiff that whenever he had seen the grate open defendant had maintained *Page 401 two to six men to warn possible inspectors that the pit was open, nevertheless a warning from one man was as effective as if it came from several. Plaintiff had, of course, seen men on the pit when it was not open, but knowing, as he must have, the manner of conducting operations by the men who unloaded the cars, the presence of one man in the position that Wryk was in suggested the probability, at least, that his crew mate was in the pit and that the grate had had to be removed so that he could go down. Wryk so nearly filled the space between the table and the car that he formed a barrier across most of the passageway, and plaintiff had to sidle by him in the approximately ten inches of space between Wryk and the car. Plaintiff may have seen a man on the pit when the grate was not open, but he says that the dust was so dense on this occasion that he could not see a yard ahead of him. Notwithstanding the poor visibility, he did not speak to or look ahead of Wryk to see what Wryk was doing or to discover whether the pit was open. He crowded by Wryk and walked blindly into the opening without giving himself an opportunity either to look at the grating or to hear the warning that Wryk was trying to give him. Only the grossest lack of care for his personal safety can account for his conduct.
Petition denied. *Page 402