(dissenting.) I am unable to concur in the conclusions reached by a majority of the court, and I shall therefore very briefly state my reasons for dissenting. I fully agree with my associates as to the principles governing appellate courts in reviewing orders of the trial courts granting new trials, enunciated in the opinion, but I do not think those principals apply to this case. It seems to me that the facts of this case bring it within the exception to the general rule, namely, that when it clearly appears that the trial court has improperly exercised its discretion in granting a new trial, or, in other words, has abused its discretion, the appellate court will review and reverse the order. Assuming the evidence of the plaintiff to be undisputed, and giving to it the most favorable construction for the plaintiff that it will properly bear, and giving to the plaintiff the benefit of all reasonable inferences arising from it, the motion to direct a verdict for the defendant at the close of the plaintiff’s evidence should, in my opinion, have been granted, as it clearly appeared from such evidence that the injury to .the plaintiff was caused, in a material part at least, by his own negligence and want of ordinary care, constituting such contributory negligence as would prevent the plaintiff from recovering in this action, as a matter of law. I add a few paragraphs from the plaintiff’s cross examination, as *29they so fully show the nature of the transaction. He says: ‘‘When I picked up the tongue the last time the engine was just a few feet from the wagon. I thought it would strike the front wheel. I saw the engine backing down there, but I still retained hold of the tonge. I did not let go, because I was trying to straighten it. After I saw the engine would strike the wagon, I did not let go, because I didn’t have time. I can’t say how many seconds I had hold of the tongue before the engine struck the wheel.”
We have therefore clearly before us the fact that, when the engine ivas only a few feet from the wagon, and about, as the plaintiff thought, to strike the front wheel, that would almost necessarily throw the tongue around, he seized hold of the tongue of the wagon and attempted to move it around, so as to get the wheel out of the way of the engine, if he could do so while the engine passed over a few feet of track. In making this effort he was unsuccessful, and was injured. It is not shown that the engineer saw him pick up the tongue or knew that he was in danger. The act of the plaintiff was not necessary to protect his person, as he was safe from injury. Shields, the owner of the wagon, was at a safe distance from the engine and had not requested the plaintiff, so far as the evidence discloses, to incur any such risk, and the defendant had not, directly or indirectly, requested him to assume any such risk. Grant, therefore, that the defendant was guilty of negligence in backing down against the wagon, it was not negligence as to the plaintiff. No act of the defendant was endangering him in any way, or the person of his employer, Shields. But it is contended that the plaintiff was engaged in carrying out the instructions of the conductor, and was, therefore, justified in assuming the risk in obediance to his orders. But I do not think any such construction can be placed upon the conductor’s orders. The plaintiff was not required to encounter any unnecessary peril or hazard in moving the wagon. The notice or order of the conductor was given when the train first arrived at the *30station, some considerable time before the accident, and was a proper one to give. He simply notified the plaintiff and Shields that he would do some switching on that side track, and to get their wagon out of the wTaj. He then left and was not seen again by the plaintiff until after the accident. The conductor did not authorize the plaintiff or Shields to attempt the removal of the wagon at the risk of injury to themselves, or at the risk of the defendant. The plaintiff, therefore, with full knowledge that the engine was about to strike the front wheel of the wagon, attempted to do a most dangerous act, which resulted in his injury. He voluntarily and needlessly encountered the peril, and should, in my opinion, be held to have assumed the risk. The defendant’s evidence in no wray tended to strengthen the plaintiff's case, but tended very strongly to prove that the defendant was not guilty of any negligence whatever, — tended very strongly to prove that the accident was due entirely to the fault and negligence of the plaintiff in picking up the wagon tongue at the time he did, and that, had he not dor e so, the engine would have passed the wTagon without touching it, and that, by the act of the plaintiff in attempting to move the wagon, he brought the wheel in a position to be struck by the engine. It is true that there was conflicting evidence as to the negligence of the defendant, proper to be 'submitted to a jury; and I refer to it simply to show that there was no evidence tending to change the case of the plaintiff as to his contributory negligence, which would have justified the court in granting a new trial. But as to the contributory negligence of the plaintiff there was no conflict in the evidence. That was clearly established by the plaintiff’s own evidence, and that of his witness, Shields. There was, therefore, nothing in my opinion, to submit to the jury. If I am correct in this view of the case, the court improperly exercised its judicial discretion in granting a new trial; and it so clearly appears that the order granting the new trial was such an abuse of the court’s judicial discretion that it should, in my opinion, be reversed.