Dissenting Opinion.
Gillett, J.I dissent. For present purposes it is unnecessary to consider the ultimate question of affirmance or reversal. My objection goes to the course of reasoning by which a reversal is reached. A word as to the evidence: The ear was moving at the rate of a slow walk, or, as otherwise stated, at a speed of about two miles an hour. The work was required to be done in haste. About one minute would have been lost if the car had been stopped to adjust the coupling. It would only have taken a second to open *38the knuckle, had it worked properly. There was expert testimony that appellant was proceeding in the proper way to make the coupling. There was also testimony that it was not proper to run ahead and arrange the knuckle on the other ear, because a man could not run and give signals at the same time, as that involved getting out of sight of the engineer.
The majority opinion is based on the answers to interrogatories. But there is not a fact found by the jurors in their answers in this case which can be said to be in necessary conflict with the general verdict. The finding that it was unsafe to make the coupling as appellee was attempting to do can be explained on the hypothesis that it was dangerous so to do with the car in its defective condition, a fact that appellee had no knowledge of. This very distinction was suggested in Baird v. Chicago, etc., R. Co. (1883), 61 Iowa 359, 361, 13 N. W. 731, 16 N. W. 207, where the court said that the jury’s finding must mean that the making of the coupling by the plaintiff “was more dangerous than it would have been if the ear to which he was to couple had been in the usual condition of a car to which coupling is made.” The question of proximate 'cause being ordinarily a question of fact (Davis v. Mercer Lumber Co. [1905], 164 Ind. 413; Chicago, etc., R. Co. v. Pritchard [1907], 168 Ind. 398, 9 L. R. A. [N. S.] 857; 1 Thompson, Negligence (2d ed.), §§161-164), the general findings commit the jury to the greatest possible extent to the proposition that appellee was not guilty of negligence in stepping in front of the car. There is certainly nothing in the answers to interrogatories to give aid or comfort to appellant.
It will be perceived that the court’s opinion, when reduced to its last analysis, amounts-to this: That a switch-man who steps in front, and attempts to walk in advance, of a car which is moving as fast as a slow walk, is guilty of contributory negligence, and this conclusion is reached, over the verdict of the jury and in disregard of expert testimony *39that it was proper so to do, and notwithstanding the practical difficulties which any other course would involve.
All men take some risks, and it cannot in every case be affirmed that there is contributory negligence as a matter of law because the plaintiff voluntarily and unnecessarily exposed himself to danger. Beach, Contrib. Neg. (2d ed.), §37. As stated by this court in Town of Albion v. Hetrick (1883), 90 Ind. 545, 547, 46 Am. Rep. 230: “It is only when the standard of duty is fixed and certain, or where the measure of duty is defined by law, or when the negligence is so elepr and palpable that no verdict could make it otherwise, that the question of negligence becomes one of law and not of fact.”
If the question of negligence is one of fact where reasonable minds might differ as to the ultimate inference to be drawn, I do not perceive how this court can regard itself as warranted in saying that in this ease there was contributory negligence. As was said by the supreme court of Michigan in Ashman v. Flint, etc., R. Co. (1892), 90 Mich. 567, 574, 51 N. W. 645: “Are judges supposed to know anything more about the proper manner of performing a switchman’s or brakeman’s duties than jurors? The answer is obvious. A jury of twelve men, drawn from the body of the people, and from all the avocations of life, would be more likely to have among its members men familiar with switching or braking upon railroads than would the bench, composed of men whose whole lives have generally been devoted to one subject — the study and practice of law; and among these twelve men quite frequently might be found men who had been switchmen or brakemen. When the inquiry arises in any ease what' an ordinarily prudent man would have done under given circumstances, the judgment of twelve men is obviously better than the judgment of one, as the experience in life of twelve men must have been, collectively, more varied and extensive than that of any one man, however learned in the law he may be; and how men *40ordinarily act in the presence of danger, or to avoid it, can be better settled by twelve men than one man, because their united experiences are brought to bear upon the question, and each has the benefit of the experience of all of them in arriving at a fair, true and just conclusion.” In this connection attention may very appropriately be called to the following wise observations of Denman, J., in Finegan v. London, etc., R. Co. (1889), 53 J. P. 663: “1 think to make questions of law out of what are in their real nature questions of fact for a jury does harm and not good, and it tends to unsettle the law rather than to settle it, and I am confirmed in the view, I think, by that which is certainly an undoubted but deplorable fact, that whenever questions of negligence are argued and put forward as questions of pure law then the difficulty arises, and in most cases they divide judges of great experience and great acuteness more than any other questions which have ever been discussed in courts of justice.”
It is a settled proposition that it is not negligence per se for a switchman to go between slowly moving cars to couple or uncouple them. Chicago, etc., R. Co. v. Lee (1902), 29 Ind. App. 480; Pittsburgh, etc., R. Co. v. Elwood (1900), 25 Ind. App. 671; Flutter v. New York, etc., R. Co. (1901), 27 Ind. App. 511; Illinois Cent. R. Co. v. Cozby (1896), 69 Ill. App. 256; O’Neill v. Chicago, etc., R. Co. (1901), 62 Neb. 358; Knapp v. Chicago, etc., R. Co. (1897), 114 Mich. 199, 72 N. W. 200; Eastman v. Lake Shore, etc., R. Co. (1894), 101 Mich. 597, 60 N. W. 309; Jarvis v. Flint, etc., R. Co. (1901), 128 Mich. 61, 87 N. W. 136; Munch v. Great Northern R. Co. (1898), 75 Minn. 61, 77 N. W. 541; 1 Labatt, Master & Serv., §334; Beach, Contrib. Neg. (2d ed.), §364; 5 Thompson, Negligence (2d ed.), §§5566, 5593, 5595.
Some limit must certainly be placed on the consequences of a servant taking the more hazardous course. As was said in Florida Cent. R. Co. v. Mooney (1898), 40 Fla. 17, *4132, 24 South. 148: “If, in the performance of his duties, two or more methods are open to him, and he has no instructions to pursue one in particular, he necessarily must choose between them, and he cannot be said to have been negligent if he in good faith adopts that which is more hazardous than another, provided the one pursued be one which reasonable and prudent persons would adopt under like circumstances. Any other rule would require the servant to be measured by the standard of very prudent persons, for only extremely cautious persons ordinarily adopt the least hazardous course where both are considered safe and appropriate. For this reason it cannot be held as a matter of law that in all cases where a servant is injured while pursuing a method voluntarily adopted by him, more hazardous than other available methods, he is guilty of contributory negligence, for non constat the method pursued may be one which prudent persons would ordinarily exercise under like circumstances. Ordinarily the question of contributory negligence is one of fact for a jury under proper instructions from the court, and it is only in those eases where the conclusions and inferences to be drawn from facts in evidence are indisputable, involving a common instinct of mankind —self-preservation—that it becomes a question of law.”
As regards the claim that the car should have been stopped, it strikes me that that is an academic, rather than a practical, view of the question. As was pertinently stated by one of the witnesses in this case, “you can’t run a railroad that way.” In this connection I quote the following observations of the Illinois appellate court, in Illinois Cent. R. Co. v. Cozby, supra: “It is manifest that in extensive yards, where much switching is to be done, the business of a railroad company could not be transacted, if every train was brought to a dead halt in order that cars might be coupled and uncoupled. We cannot hold that Craiglow was necessarily guilty of negligence because he undertook to un*42couple cars which were moving at the rate of two or three miles an hour.”
It would, of course, be clear that had appellee fallen as the result of stepping in front of the car, for instance, by being caught by the brake-beam, he would have had no remedy, for he assumed that risk. In this case, however, he was injured — at least we may assume so from the majority opinion — by a defect in the car that he knew nothing of. If appellee would have accomplished his task without injury but for the protruding nail — an inference that the jury was authorized to draw — then it would not appear that the risk he took was in a legal sense contributory to his injury. As pointed out in 1 Bailey, Per. Inj., §1122: “The result is not the true test.” I do not find myself impressed with the argument that appellee was guilty of contributory negligence because if he had not been in the place, which for some other reason was dangerous, he would not have been hurt. Proximate cause must have some moral relation to the occurrence complained of. The law would' cease to be a practical science, and the courts would be led into the mire of sophistical discussion when once they began to recognize the view that the accidental propinquity of the plaintiff to the thing that did him harm had any necessary relation to his responsibility for the injury. It has been held in a number of jurisdictions, that where switchmen attempting to couple moving ears, have been injured by defects which had no relation to the hazards they assumed, it could not be said as a matter of law that their conduct was the proximate cause of their injuries. Lake Erie, etc., R. Co. v. Craig (1896), 73 Fed. 642, 19 C. C. A. 631; Curtis v. Chicago, etc., R. Co. (1897), 95 Wis. 460, 70 N. W. 665; Baird v. Chicago, etc., R. Co. (1883), 61 Iowa 359, 13 N. W. 731, 16 N. W. 207; Louisville, etc., R. Co. v. Pearson (1892), 97 Ala. 211, 12 South. 176. No case has been called to my attention which militates against the above authorities.
There may be room for doubt whether the jury was au*43thorized to infer that appellee was injured by the protruding nail. My objection, however, as before stated, does not go to the result, but to the means by which it is attained. I can but regard the majority opinion as out of line with principle and authority, and for the reasons stated I feel constrained to dissent.