In our opinion, the verdict for the defendant was ordered rightly. The train was a regular one and came at the regular time and in the usual way. It was the plaintiff’s duty to get out of its way, without compelling those in control of the train to give him warning of danger. He does not seem to have been upon the track itself, though working upon a rail which had been taken up, and which lay outside of the track and near it. But if it could be found from the evidence that he was upon the track, or so near the track, and so leaning toward or over it as to make it the duty of the engineer to give the signal required by the rules to persons on the track, and that the engineer was negligent in not giving that signal, the plain*218tiff bad no right to stay upon the track until such a signal should be given. It was his duty seasonably to put himself out of danger at the approach of the train. His bearing was good. The train had been in plain sight for a quarter of a mile, and its whistle at a greater distance was audible even farther away than the place where he was at work. Beside the warning given by the approach of the train itself, he was called to by fellow workmen. The inference must be drawn from the testimony that he was negligent in not noticing the approach of the train, and this negligence precludes his recovery.
¡Exceptions overruled.