This is an action for a personal injury based on the alleged negligence of defendant. As it appears plaintiff was a carpenter working for defendant at $75 a month on its division between Portal and Harvey. On a dark night of September 16, 1916, about 8 p. m., the plaintiff and six other carpenters were at Flaxton, where they got onto a gas car to go to their home or headquarters at Portal, a distance of 8 miles. When they had gone about 4 miles they ran against a gas car No. 2 standing on the track. The plaintiff was thrown off and seriously injured. At the time of the accident, plaintiff sat on the front seat with the driver, and held a lantern and occupied the position of a lookout.
There is no showing that the car was going at an unusual speed or that the plaintiff made any objection to the speed. A speed of 25 miles an hour would have made the distance from Flaxton to Portal in twenty minutes and from Flaxton to the place of the accident in ten minutes. No one knew the speed of the car at the time of the accident. It was a matter of conjecture, — a mere guess. But as the car had run only 4 miles and had only another 4 miles to run, the chances are that it was run at ordinary speed, and there .is no evidence that anyone objected to the speed.
When the standing car was first observed by the plaintiff and .the driver, it was at a distance of one or two rails — the distance of a second in the measure of time, and as it takes some time for the mind to think and to act, there was no time to stop the moving car so as to prevent the collision; and a sudden stop would have thrown the plaintiff directly in front of the car. Hence, there is no force in the ob*520jection that the car was not equipped with new brakes so that it might have been stopped or slowed up in the fraction of a second. Such a sudden stop or slow up would have been more dangerous than the collision.
Without the leave or license of the defendant, and contrary to its orders, the standing car had been wrongfully taken from Portal by the section foreman and others who were going to a lodge meeting at Flaxton. The car on the track was the real and proximate cause of the injury, but it was not there through any fault or negligence of the defendant. The defendant was not bound to stand with a club, and to keep watch and ward to prevent the wrongful taking of the gas hand car from Portal. Railroad companies must act through their servants, and assume that servants will not wrongfully take and misuse their property.
The plaintiff claims the benefit of the Employers’ Liability- Act: 35 U. S. Stat. at L. 65, chap. 149, Comp. Stat. § 8657, 8 Fed. Stat. Anno. 2d ed. p. 1208; Laws 1915, chap. 207. These sections provide that every common carrier by steam railroad is liable in damages to any employee suffering injury while he is employed by such carrier in interstate commerce, if such injury results in whole or in part from the negligence of any officers, agents, or employees of such carrier; or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, or equipment; and also that an employee shall not be held to have assumed the risk of his employment in cases where the carrier violates a statute for the safety of employees and such violation contributes to the injury.
Aside from the employer’s liability statute, it is provided:
Section 6108. An employer must in all cases indemnify his employee for losses sustained by the former’s want of ordinary care.
Section 6107. An employee is not bound to indemnify his employer for losses suffered by him in consequence of the ordinary hazard of the business.
Section 5948. Every person is responsible for an injury occasioned to another by his want of ordinary care and skill in the management of his property or person except so far as he has wilfully or by want of ordinary care brought the accident upon himself.
The briefs of counsel do not discuss the question as to whether or *521not at the time of the accident plaintiff was employed in the business of interstate commerce, and on the record it does not seem necessary for the court to decide that question. However, in the opinion of the writer, the ordinary carpenter work done by the plaintiff had no more of interstate commerce than the digging of potatoes for defendant on its right of way. Under either statute the question presented is one of ordinary care, and there is no proof to show a lack of ordinary care in .any respect. Hence, there was no proof to sustain a verdict for damages.
Judgment affirmed.
Grace, J. I dissent.