Opinion by
■..We have carefully considered the testimony in this ■case, and the briefs of counsel and.the authorities cited therein, and while, as suggested by both court and counsel, the case may be on the border line, we are not con
There was no evidence in the case which would warrant a finding or even an inference that the plaintiff’s injuries resulted from his own negligence. This is so clearly correct that a discussion of the question is not required. The serious question, and the one to which the appellant has devoted its extended argument, is that the plaintiff fully appreciated the danger and must be conclusively presumed to have assumed the risk of the service he was performing at the time he was injured. The plaintiff was a brakeman employed by the defendant company in its loaded classification yard at Youngwood, Westmoreland County, Pennsylvania. He had worked in that and the defendant’s adjacent yard about thirteen years, was familiar with the yards and the numerous tracks and had handled all kinds of cars on them. On the morning of the accident, the conductor of the shifting crew ordered them to' shift one of eight or ten cars on track No. 10 to another track, and, in order to do this, they had to pull all the cars off the track, place the one car on the other track, and then replace the remaining seven or nine cars on track No. 10. While backing these cars on track No. 10, the plaintiff was standing in his proper place on the ladder on the side of the car next to track No-. 11, the ladder being close to' the front end of the car on which he was riding. He was standing with his feet on the ladder and his left arm thrown over the top of'.the car. While in this position, he was caught between the side of the car on which he was riding, and the side of a loaded car on track No. 11 and seriously
We have already alluded to the fact that the evidence was insufficient to convict.the plaintiff of contributory negligence. The reasons for submitting to the jury the question of assumption of risk are so clearly stated in the opinion of the learned trial judge that we deem it unnecessary to refer to and discuss the testimony bearing-on the question, as the learned trial judge does so at length in his opinion, and shows conclusively that the evidence would not support a directed verdict for the defendant on that issue. The facts, as stated by the court, will be found in the opinion of the court below. As a result of his reexamination of the case on the motion for judgment, the learned court concludes as follows: “In view of all the circumstances, considering that the plaintiff had worked over those tracks and between the cars for years, that no accident had ever happened, that men in the employ of the company, Avho Avere his superiors and who had worked in the yard for years, differed in their opinions as to whether it was a safe place to work or not, and in vieAV of the further fact that there is no evidence to show that the plaintiff actually knew that the clearance betAveen tracks Nos. 10 and 11 was less than the standard clearance between tracks in those yards, Ave think the question of the plaintiff’s assumption of risk was a question of fact for the jury and could not be ruled as a question of law by the court......The injury to the plaintiff by reason of his riding on the side of the car and being caught between that car and a car on track No. 11 by reason of the width of the car upon which he was riding and the lurching of the car at the time of the accident, and the further fact that the distance between the two tracks was less than the standard g-uage, was not such an injury as was reasonably inci
Judgment affirmed.