I can see no reason for holding this plaintiff guilty of contributory negligence as a matter of law. In the course of his duty as an employe of the American Railway Express Company he drove his electric baggage truck out on the platform to meet a train. Finding the train was late, he mounted his truck again in order to drive it back. He then found that another truck was standing in the middle of the platform so that to pass it he had to go slightly over the rail of the track for the small distance equal to the length of this other truck. It is suggested in the majority opinion that he could have gotten upon the other truck and moved it out of the way or could have had this done by some authorized person. But why should he have resorted to such an unusual course? And when has it ever been held negligence per se to cross a railroad track or, as here, to pass for a few feet inside one of the rails, if proper observations are first made as to approaching trains? Plaintiff had a clear view down the track for 600 feet; he looked and saw no train in sight. So he started around the parked truck and ordinarily would have been inside of the rail and outside again within but a moment of time. Unfortunately, however, his truck caught in the rail and he was obliged to maneuver in order to extricate it. During the course of that operation he looked back twice and there was still no train in sight. He continued his efforts and it took him, as he says, "about a minute" to get his truck in a position ready to go forward and to pass the standing truck, and as he was about to do this he was hit from the rear by the train. *Page 122
The opinion of the court charges plaintiff with contributory negligence not only in going upon the track at all but "in failing to look and see the engine." He did look, however, before he started and twice more while engaged in attempting to free the truck, and even for a jury to say that he was negligent in not looking a fourth time during the interval which he vaguely estimated as "about a minute" would be, to my mind, extremely unwarranted, especially in view of the fact that he was necessarily absorbed in the task in which he was properly engaged. For a court to say it as a matter of law seems to me all the more indefensible.
I therefore dissent.