We are all of opinion that the ruling of the learned iudge before whom, the trial was had was erroneous, and that the case should have been submitted to the jury.
It appears by the bill of exceptions, that the plaintiff and other workmen, employed by a contractor who under agreement with the defendants was constructing a wall to support their railroad, were engaged in holding a rope attached to a derrick in actual use for moving stones for that purpose; that the work required the derrick and rope to be in the position in which they were, and the plaintiff and his comrades to be upon the side track of the railroad; that while they were there, busily at work, and while the safety of all required their most careful attention to their duty, a locomotive engine, attached to a train of cars which had just passed over the side track to the main track of the railroad, was separated from the train, and, without any bell rung or signal given, run back upon the side track, and there struck and injured the plaintiff; and that he knew and relied on the custom of the defendants to ring the bell or sound the whistle whenever one of their engines approached men working upon the railroad. These facts, if not varied or disproved, would have warranted the jury in finding that the plaintiff 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. Quirk v. Holt, 99 Mass. 164. Hackett v. Middlesex Manufacturing Co. 101 Mass. 104. Mayo v. Boston & Maine Railroad, 104 Mass. 137. Wheelock v. Boston & Albany Railroad Co. 105 Mass. 203.
In Burns v. Boston & Lowell Railroad Co. 101 Mass. 51, the ground upon which the plaintiff was held not to be entitled to recover was that the circumstances of that case did not show that lie was rightfully upon the side track of the railroad. And the remark quoted by the defendants from Quirk v. Holt, 99 Mass. 166, in which a man sustained an action for being struck by a wagon while at work in the highway, that “ his duty to keep watch for the defendant’s approach was not the same as if he had been at work upon a railroad when the defendant was coming *463with a locomotive,” does not warrant the inference that in such a case as the present he must be held wanting in due care.
The other ground of defence taken at the trial, that those in charge of the engine and train were fellow-servants with the plaintiff, was waived at the argument. Exceptions sustained.