dissenting. We think it clear from the plaintiffs allegations that he knew that the gasoline motor was not properly working, that it would constantly cease action, and that he and other members of the section-gang would have to tug the car to the station. He was told that pushing the car forward would put the motor in motion. With this knowledge, and with the intent to start the motor, he assisted in pushing the car forward. The risk of having the motor to suddenly start was obvious, and whatever' danger attended the movement of the car as the result of the motor being put in motion was voluntarily assumed by the plaintiff in undertaking to push the car at the command of his foreman.
With respect to the rotten cross-ties as a participating factor in causing his injury, the plaintiff does not positively allege the railroad company’s knowledge of them, but seeks to impute notice because they had been in that condition for several days. He was a track-hand, and his duty was to repair the tracks. The duty to make necessary repairs imposed the duty to discover the condition of the track which would require the repair to be made. The plaintiffs means of knowledge were greater than the company’s, as the latter’s knowledge came from the former’s inspection. Besides, it is to be doubted that the condition of the ties was any part of the cause of the injury. Prom the plaintiff’s description of the manner of receiving the injury, the sudden starting of the engine of the motor-car was the primary and sole cause of his injury.