The defendant offered no evidence or instructions and bases its whole exception on the demurrer to the plaintiff’s evidence. It is therefore to the sufficiency of the case as made out by plaintiff that we will direct our attention.
The switch where the car was standing, upon which plaintiff was at work, though operated by defendant’s rolling-stock, was built, mainly, for the use and convenience of Loomis & Snively in their mining operations, and was used by them in loading cars for shipment and in occasionally receiving slack coal from other mines for fuel in running the mine at this switch. Plaintiff, being the servant of Loomis & Snively, at this mine, had a right to be engaged in the work of unloading the car standing on this switch, and the case is not, by any means, as if he had been a trespasser upon defendant’s track.
The questions then are these, can we, under the evidence in this case, say, as a matter of law, that defendant was not guilty of negligence in going onto the switch and approaching the car loaded with nut coal ? If we cannot say this, and in consequence hold that there was sufficient of negligence to go to the jury, then, are we justifiable in declaring, as a matter of law, that plaintiff was guilty of such'contributory negligence as to prevent his recovery % Our opinion is in favor of the plaintiff on both propositions. There was evidence tending to show that defendant knew that cars were occasionally unloaded as was this one, and that this particular car had been brought to this point and switched off onto this side-track the day of the. accident. *535The evidence tended further to show that on this occasion the engine, for the first time, approached the shed-room from the east end of the switch, it having always previously gone in from the west end. It appears also that while the engine, in approaching this car, did so carefully and properly, so far as speed was concerned, that it nevertheless went noiselessly, without ringing the bell, sounding the whistle, or indicating its approach in any other manner. As to plaintiff’s acts and conduct, there was evidence tending to show that the platform made of the ends of the two cars and upon which he was standing, was about on a level with the lower end of the angle or “crotch” made by the braces and upright post supporting the upper part of the structure ; that this “ crotch” made a convenient foot-hold in passing from the car through the hole made by the braces into the engine-room ; this hole was three feet and eight inches in width. Before commencing to unload, plaintiff had noticed an engine “ east of the depot, fifty yards from where I was, on the north switch. Between me and that point were two tracks, the main line and the siding. The engine' wás headed east.” The engine which went in on the east end of the switch and which caused the accident, was headed west. While engaged at this work, plaintiff kept his face to the west, the-direction from which the engines had theretofore approached. His work made no more “noise than shoveling sand,” and while not expecting or listening for an engine, he was nevertheless attentive. Loomis & Snively’s employes had been in the habit of unloading coal at this place for twelve months. Plaintiff was in the act of stepping from the platform of the cars through the hole into the engine-room when his foot was caught and his heel crushed. He did not know of the approach of the engine until he was struck. Prom this evidence, contributory negligence could not be declared to be established, as a matter of law. “The recklessness or *536heedlessness should be very apparent to justify a declaration by the court, as a matter of law, that certain conduct on the part of the plaintiff amounted to contributory negligence. Where it is questionable, it is the province of the jury to say whether, under the circumstances of the particular case, the conduct amounts to contributory negligence.” Taylor v. Mo. Pac. Ry. Co., 26 Mo. App. 336, and cases cited.
The judgment is affirmed.
All concur.