We are of opinion that the question whether the plaintiff was in the exercise of due care was rightly submitted to the jury. If he had reflected carefully, he might have known that the tank would be likely to slip a little on the car when the train started up with a jerk, but he testified that he had never before seen a car with a space between the tank and the block which was designed to keep the tank in place, and it is not very strange, when he reached back with his hand “ to feel if there was a grab-iron there,” that he took hold of the block and exposed his fingers to danger without thinking of the consequences.
The defendant asked the court to rule that there was no evidence “ that the plaintiff was injured by reason of the negligence of the engineer, in failing to stop, start, manage, or control the train in a proper manner.” It is not contended in behalf of the plaintiff that the engineer was guilty of negligence in any other particular than in starting the train suddenly with a jerk. Three witnesses were called on this point: the plaintiff, Whitney, and Sibley, the engineer. The plaintiff said he did not know whether *9the train started suddenly or not. Whitney “ said that starting with a jerk is something that will happen on any freight train ; that there is a good deal of slack in a given number of freight cars, and it is very hard to start the same as you start a passenger train; that it did start with a jerk; that when the engine is pushing back against the cars, and the slack is out, there is always a succession of jerks between all the cars as the engine starts up, and it cannot be otherwise; that he could not swear whether it was a usual or unusual jerk; that there was considerable slack to a certain number of cars, and a considerable jerk.” It was an undisputed fact that there were more than twenty cars between the engine and the car on which the plaintiff was, and that at the plaintiff’s request the engineer had previously started the engine back against the train, so as to relieve the strain on the pin which the plaintiff was about to pull, and so had brought the cars together at the bunters between the engine and the car on which the plaintiff was. The engineer testified “ that he started the engine at this time by letting the brake off and giving it a little steam; that he did not start with any unusual jerk; that he did nothing out of the ordinary in the way of starting the train.” Plainly in this testimony there is no evidence that the engineer was negligent. On the contrary, it tends to show that he was careful.
The only other evidence on which the plaintiff relies is the fact that when the car started the tank slipped a little on the floor of the car and caught the plaintiff’s fingers. The bill of exceptions states all the evidence material upon the question of liability. There is no affirmative evidence tending to show that this heavy metallic cylindrical tank, filled with oil, would not slip a little on the floor of the car when the car was started with no greater jerk than that which would come from putting on a little steam in the ordinary way, if twenty-three cars had previously been crowded together so as to make considerable slack. The burden was upon the plaintiff on this point, and the only evidence bearing on it was the negative fact, in favor of the defendant, that the tank slipped in the other direction from the coming together of the cars afterwards when Whitney coupled them. It is undisputed that there was a jerk in starting this car, and that there naturally would be a jerk in starting a car *10attached as this was to so long a train in such a condition". The slipping of a tank which had little or nothing to prevent its movement in that direction until it encountered the block was evidence that force was applied suddenly to the car. But it affords no ground for anything more than conjecture that the jerk was unusual, or that the engineer started the train in an improper way. Indeed, the more natural conjecture is that he did not. There was no reason why he should not have started as usual. We can find nothing in the bill of exceptions which tends to show that the engineer was in fault, and on this point the court should have ruled as requested.
We cannot say, as matter of law, that “ there was no legal obligation upon the defendant to furnish handles for the plaintiff to take hold of when engaged in uncoupling th(e cars,” or that there was no evidence upon which the jury could find that the tank car was in any way defective. There was evidence tending to show that a handle would be convenient and useful for a brakeman to take hold of when drawing the pin, and that some of the defendant’s tank cars were provided with such handles. Whether the want of one rendered this car defective was a question of fact for the jury. It did not appear what knowledge the plaintiff had in regard to the construction of the defendant’s cars in this particular when he entered its service, nor what proportion of the cars have such handles and what have not, nor whether the risk of injury from the use of cars not provided with handles was or was not an obvious risk of the business, if it would be open to the defendant, under the St. of 1887, c. 270, to show that the plaintiff impliedly contracted when he entered the service that the defendant might continue to use the same kind of cars that it was then using without claim by him on that account. Whether that defence would be open, we do not deem it necessary in this case to decide.
Nor does it appear that the plaintiff had such knowledge of the defect before the accident that he was bound to give notice of it to the defendant beforehand, as a condition precedent to his recovery for an injury.
Because of the error in regard to the alleged negligence of the engineer, the entry must be,
Exceptions sustained.