dissenting.
I find myself unable to agree to tbe opinion of tbe majority of the court in this case, and will briefly state tbe grounds of my dissent.
I think it must be conceded that tbe evidence establishes beyond question that the track yards, where tbe spreading of tbe rails and derailment of tbe freight cars occurred, were in very bad condition. Snow bad fallen, and the ground was soft and muddy. Both tbe passenger track and tbe roundhouse track, paralleling each other, were uneven, and, in reality, unsafe for tbe passage of cars or trains, except by tbe exercise of great care. Decedent was the foreman of a gang of men in charge of those particular tracks and others within bis territory. After tbe completion of the day’s work tbe men constituting the force under decedent’s care bad gone to their several homes and lodging-houses. After they bad separated tbe derailment occurred. Tbe roadmaster, having been informed of the spreading of tbe track and derailment of tbe cars, ordered decedeut to call out bis men and assist in restoring tbe track and removing tbe wrecked or derailed cars. Decedent did as directed, and, instead of returning to his home for bis evening meal, be went to a telephone, and by its use, directed bis.son to bring bis supper to him. It was then night, and tbe men, not only of his force, but another gang of track men, were assembled to remove tbe derailed cars and restore the track. Probably about the time tbe *368men were being assembled the roadmaster concluded that decedent was intoxicated and ordered him to go home. Upon the particular question as to what that order was, there is a conflict in the testimony. The roadmaster and some others testified that the order was to go home and keep away from the work. Others testified that all that was said was for him to go home. The roadmaster testified that he made use of language substantially as stated in the majority opinion, but upon cross-examination it was shown by him that he was a witness at the coroner’s inquest, held very soon after the accident,, where the subject of the extent of this order was under investigation, and the question was asked him as to what he said, and he answered that he simply told decedent to go home. The question was asked him: “Didn’t you say before the coroner’s inquest, ‘I simply ordered him to go home?’ ” His answer was: “Yes, sir; I said that.” “Q. You simply ordered him to go home? A. Yes, sir.” This did not amount to a discharge, nor was it an order to “keep away from the work,” as contended by defendant.
There is a direct conflict in the evidence as to decedent’s intoxication at all. Witnesses who observed him stated that there seemed to be something wrong with him at the work of clearing and restoring the track, but whether intoxicated or sick they could not say. Immediately upon being run over by the train, he was taken up and conveyed to a hospital, and no one detected any evidence of inebriety about him, notwithstanding special investigations were made before his death. He had never been known to be intoxicated during the time he was under employment by defendant. Under the evidence submitted, the question of his intoxication was solely, for the consideration of the jury.
It was shown that the track known as the roundhouse track was in a bad condition, not suitable for the rapid movement of trains or cars. This was- known to the engineer, for he had but a few minutes before passed over it on his way to the roundhouse for the passenger coaches to be used in making up the train at the Union station *369for the run to the south. Not only so, but in passing out to the roundhouse he had seen the men at work removing the wreck from the adjoining track and relaying the rails,, guided in their work by the use of torches, but he seem» not to have sounded his whistle nor rung his bell announcing his return, to warn those men, who, in the confusion of the removal of the derailed cars and the restoration of the track, by the light of their torches, were working immediately by the side of the track over which he was to pass. There was a bright headlight upon his locomotive, the track was straight, and, had he been on the lookout to the front, he could have seen decedent at work upon the track upon which his train was approaching, but no attention seems to have been given to what was in front. Was he negligent? The rule that all questions of fact were for the consideration of the jury seems to have been forgotten. In addition to this, it was shown that decedent was engaged in inspecting and measuring the track, over which the train was passing, in a stooping position, with his back toward the approaching train, the immediate approach of which he had no notice by bell or whistle, until he was run down, and his life destroyed. Was he guilty of negligence? This question was solely for the jury.
As I read the bill of exceptions, the evidence was conflicting upon every material point in the case, and the verdict of the jury and judgment of the district court should not be set aside. What are juries for if not to settle controverted questions of fact upon conflicting evidence?