after making the foregoing statement, delivered the opinion of the court.
Whether or not there be negligence in a transaction, is usually a question of fact. Under the testimony and pleadings in this case there Avas no negligence on the part of appellant unless it be (1) because there was no bell rung or whistle blown on the locomotive; or (2) because the accident occurred in the night time and when there was no light on the first car; or (3) because there was no watchman on the first (or front) car, and no light there, and no warning to deceased that a train was approaching.
First. It might, perhaps, be claimed that there was conflict in the testimony as to the sounding of a whistle, but there can be no doubt whatever, from the testimony, but that the bell was operated by steam and was being rung. Indeed, attorneys for appellee do not claim in their argument that there was any negligence in this respect.
Second. As to the point that there was no light on the front car when the accident occurred, which is alleged to have been in the night time, attorneys for appellee say that this was entirely abandoned at the trial, because not sustained by the evidence.
Third. It is contended by appellee that appellant was negligent in. not having complied with the provisions of Section 90, Ch. 114, Hurd’s Rev. Stat., which is as follows, viz.:
“No railroad corporation shall run or permit to be run upon its railroad, any train of cars, for the transportation of merchandise or other freight, without a good and sufficient brake attached to the rear or hindmost car ,of the train, and a trusty and skillful brakeman stationed upon said car, unless the brakes are efficiently operated by power applied from the locomotive.”
Under the facts in the case at bar, this statute has no application. This section is not intended to control the making up of trains in the yard of a railroad company. The making up of a train by a railroad company in its yard at a terminus is not running “ upon its railroad a train of cars for the transportation of merchandise or other freight.” We can not concede that because the cars being switched in the appellant company’s yard were loaded with coal, they were therefore then being used for the “ transportation of merchandise ” within the meaning of this statute. This section of the statute was evidently intended to apply to trains running from one place or station to another. A few cars being switched about in a freight yard are not a “ train ” in the sense that word is there used. And clearly this statute does not in its language purport to apply to the front one of several ears which are being pushed backward in front of an engine. It states specifically that it applies to “ the rear or hindmost car of the train.” It does not follow that it might not, under some circumstances, be negligence to push cars in front of an engine in a switching yard without the presence of a trusty brakeman upon the first or front car.
The testimony does not show any wanton or reckless conduct on the part of appellant’s employes. They, with the deceased, were employed in a very busy yard, and were at a switch which was in frequent use. The engine and cars in question had just passed the deceased, moving south. The witness, McG-rath, who was engaged in the same kind of work as deceased, saw the cars moving back north; says he was looking out for them, as he did not want to get caught; that he was further from the front car than deceased was at the time; and that he shouted a warning to deceased.
When deceased was struck he was on the track with his back toward the approaching cars. A switchman was on the north or rear car when the engine and cars were passing south, but as that car passed the switch, he dropped off the car where deceased was standing, and told deceased to look out, as they were going to shove right back. The section of statute above quoted was practically complied with.
We have referred but briefly to some of the testimony. After a careful consideration of all the testimony in the case, in connection with the views expressed by the Supreme and Appellate Courts of this State, we are forced to the conclusion that the deceased lost his life rather from his own negligence than that of any employe of appellant.
But there is another fact to be considered. When the deceased entered the employ of appellant, he assumed the natural and ordinary risks incident to such service. He knew that switching engines and cars were running backward and forward over the tracks and switches where he was working. He assumed the risks to which he was thereby exposed—the dangers incident to the employment. He undertook to observe all proper care for his own personal safety.
■ The judgment of the Circuit Court is reversed and the cause remanded.