dissenting.
I am unable to concur in the majority opinion. The plaintiff’s undisputed evidence in this case shows that Disher was the foreman of the section men upon the handcar at the time the accident occurred; that for six or seven months he had worked on the section where he was killed; that he had passed around the curve and through the cut in question an innumerable number of times; that it was the well-known rule and custom, and Disher had been instructed, to never run his hand-car around the curve and through the cut without sending a man ahead to flag the cut and see that no train was approaching. He also knew the rule that foremen and trackmen were required to keep out of the way of regular trains, late trains, special or wild trains running at all rates of speed, and that he could expect to meet such trains at any and all times. Notwithstanding this, and his knowledge of the existing physical conditions, and knowing that it was his duty to keep out of the way of all such trains, so as to allow them to proceed at full speed, he went into the cut with a heavily ladened hand-car, without stopping to look or listen, and without sending a man ahead to flag the cut. He knew of the rule, for the testimony shows that before the day of the accident he had always flagged this curve; but on that day, while hurrying to his dinner, he neither stopped his car nor took any precaution whatever to protect himself, and utterly failed to consider the lives of the section men under his charge until he saw the approaching train. ‘ Then it was *234too late to remove the car from the track before the train struck him. The plaintiff’s own evidence, therefore, makes out a case of utter recklessness on the part of the deceased. He was clearly guilty of gross contributory negligence in running his hand-car into the cut where he was struck, without having sent a man ahead to watch for and warn the passenger train, which he might have expected was approaching; and but for his own negligence in that respect he would not have been killed. I am unable to understand how reasonable minds can reach different conclusions upon the undisputed testimony found in this record. Chicago, B. & Q. R. Co. v. Healy, 5 Neb. (Unof.) 225; Cincinnati, N. O. & T. P. R. Co. v. Holland, 117 Tenn. 257, 96 S. W. 758.
In Chicago, B. & Q. R. Co. v. Healy, supra, the deceased was a section foreman on the defendant’s road, and on the morning of the accident he, with five others of the section crew under his charge, started over the track upon a handcar, going to their work. At a certain point on his section the defendant’s track makes a sharp curve through a cut. The deceased and his crew went into this curve, just as Disher did in the case at bar, without stopping to send a man ahead to flag the curve. While proceeding through the cut an extra train appeared, running 30 or 40 miles an hour. As soon as the deceased saw the train he exclaimed: “Here she is; get her off, boys!” The hand-car was stopped, and all hands undertook to remove it from the track. Before it could be removed the train struck it, and the deceased was instantly killed. On those facts it was held that there was no negligence shown on the part of the company, and that the cause of the injury was the reckless negligence of the deceased in going into the cut without flagging it.
Therefore I am of opinion that, even if the defendant was guilty of negligence, its negligence was slight in comparison to that of the. plaintiff’s decedent, which, as we have seen, amounted to gross contributory negligence. To such a case the provisions of section 4, ch. 21, Comp. St. 1911, *235have no application. That section provides that in all actions hereafter brought against any railway company to recover damages for personal injuries to an employee, or when such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, when his contributory negligence was slight, and that of the employer was gross in comparison, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. All questions of negligence and contributory negligence shall be for the jury.
As I Anew the provisions of this section, they have no application to a case where the negligence of the employee was gross, and where a fair consideration of plaintiff’s OAvn evidence establishes, beyond question, gross contributory negligence on the part of the employee. In such a case the provisions of the statute leave no question for the consideration of the jury. It Avas not intended that in such a case there would or could be a comparison of negligence as betweeu the employee and the employer. NotAvithstanding the clear provisions of this statute, the majority insist that, according to the facts established in this case, the right of recovery should have been submitted to the jury. Upon this proposition I am utterly unable to concur with my associates.
As I view the case, the trial court properly instructed the jury to return a verdict for the defendant, and its judgment should be affirmed.