Dissenting Opinion.
Comstock, J.Believing that the majority opinion «in this cause does not correctly express the law as heretofore announced by the Supreme and this Court, I deem it proper briefly to express my dissent to the action of the majority of the court. The special verdict clearly shows that the defendant corporation was guilty of negligence. It remains only to consider whether the plaintiff was himself guilty of negligence approximately contributing to his injury. In the opinion of the writer, the facts found by the jury affirmatively show that he was free from fault. Upon the authority of Toledo, etc., R. Co. v. Hauck, 8 Ind. App. 367, and cases there cited, appellant is entitled to judgment.
The facts found decisive of the question are in answer to the following interrogatories: “Was the car containing said articles of merchandise and groceries side-tracked by defendant upon the principal switch of said town of Cicero? Answer, “Yes.” “Did the plaintiff drive to said defendant’s local office and station at said town of Cicero in the afternoon of said day of the 31st of March, 1894, and inquire of defendant’s agent at said office concerning said goods and merchandise? Answer, “Yes.” . Did defendant’s agent, in answer to such inquiry of the plaintiff, in*690form the plaintiff that the same was in the car of the defendant standing on the side-track or switch?” Answer, “Yes.” “Was the side-track or switch the nsnal place of unloading freight at said station or town?” Answer. “Yes.” “Did said agent direct the plaintiff to drive around to said car, and unload said articles and groceries therefrom into his wagon?” Answer. “Yes.” “Did said agent further state to the plaintiff at the time that he would have ample or plenty of time to get the same before any train or cars were moved upon said side-track?” Answer. “We, the jury, find from the evidence that the agent told the plaintiff that he had time to get his goods out of the car.” “Did the plaintiff follow such instructions, and rely upon the same, and immediately drive around to said car for the purpose of unloading said goods?” Answer, “Yes.” “When the plaintiff first started from the freight station to the car containing his goods, did the defendant, or any of the agents, direct him so to do?” Answer. “The evidence shows that the plaintiff received information when said plaintiff paid the freight, that said- plaintiff’s goods were in the car on the defendant’s side-track and when said plaintiff got around to Jackson street that the freight agent directed the said plaintiff to the car in which plaintiff’s goods were.”
The jury further found that the plaintiff and his assistant drove their wagon immediately to the car designated, and worked as diligently and rapidly as possible to remove the goods, and just as the work of transferring the goods from the car to the wagon had been completed, and before the plaintiff had time to drive away from the car, the employes of the defendant. in charge of the locomotive of defendant carelessly, without any warning to appellant, ran a train of freight cars against the car from which he had re*691moved his goods, resulting in the injury for which he sues. The facts thus found show that a consignee of freight paid the charges thereon of the common car-' rier at the place of delivery, and is directed by its proper agent to the car side-tracked at the usual place for unloading goods, and is informed by said agent that he would have time to get his goods out before the car would be moved*; that, relying upon this information, he went to work immediately, with his assistant, with all possible diligence, and did remove the goods from the car to his wagon, but, before he had time to drive away, was, by the fault of the defendant’s employes injured.
The learned judge who wrote the opinion attaches importance to the fact that the jury did not say that plaintiff was told that he had ample or plenty of time in which to get out his goods, but that he was only told that he had time. We submit that plaintiff could only have understood by this statement,- under the circumstances, that he had time to accomplish his work. If plaintiff had time to remove his goods by the exercise of ordinary diligence, it was all the time he required, and he was informed that he had this time by one upon whom he had the right to rely, and upon whose instructions he acted. We think that it cannot be reasonably held.that the. statement made by appellee’s agent to appellant that he would have time to remove his goods meant that he would have time to put them in his wagon, but not to get away with the wagon before the train moved. The majority opinion holds that the fact that appellant had the end of his wagon against the car, unexplained, was negligence. The jury found that it was necessary to place the wagon near the car. That it was necessary to put the end of the wagon against the. car could have no better explanation than the finding that *692among the articles to be unloaded was a barrel of sugar and a barrel of vinegar.
The defendant company was under special obligations to protect the appellant from injury. Its employes had induced him to enter into a place of danger. The case is not distinguishable in principle from that of Toledo, etc., R. Co. v. Hauck, supra. Appellant had been lulled into a feeling of security by the agent of the company, as had been the plaintiff in the case last named, in which the court said it was the duty of the railroad to furnish to persons lawfully upon its tracks, “engaged in loading or unloading freight, protection from injury by approaching trains or locomotives. In such cases, a person having business with the company of the character indicated, has a right to occupy a position designated by the agent of the company, even if such position be hazardous, and to rely upon the diligence of the company to protect him from danger.” See Howe v. Ohmart, 7 Ind. App. 32; Pittsburgh, etc., R. Co. v. Ives, 12 Ind. App. 602; Wabash, etc., R. Co. v. Locke, Adm., 112 Ind. 404; Louisville, etc., R. Co. v. Schmidt, 147 Ind. 638; Cleveland, etc., R. Co. v. Keely, 138 Ind. 600.
The judgment of the trial court should be reversed. Black, J., took no part in this decision.