6 (dissenting.) — I do not concur in the conclusion reached by the majority in this case. If the jury had followed the instructions given by the court, and applied the evidence thereto, there would have been a verdict for the defendant. That part of the charge which I think was disr egarded by the jury is to be found in the eighth paragraph, which is as follows: “If between these two tracks there was a space of seven feet and ten inches, which was reasonably safe to stand in without injury, and if plaintiff, in stepping away from one track, passed over this space, near to or upon another track, and was looking at the moving of a switch engine, or was'watching .an adz, and while so* engaged was struck by a moving car, which he could easily have avoided by watchfulness on his part, then plaintiff cannot recover, and your verdict should be for the defendant, whether the speed of such cars was in violation of the ordinance or not. By the use of the word ‘watchfulness’ in these *275instructions is meant' the use of ordinary and reasonable care.” Substantially the same idea is carried through the ninth and tenth paragraphs, with the additional thought that, notwithstanding the duty of the section foreman to watch out for approaching cars, and inform plaintiff of them, still it was plaintiff’s duty to be watchful and careful, whether he was told of the approach of the cars or not. The fact is that the section foreman was not at the place of the accident when it occurred. The plaintiff testified that he saw him albout five minutes before, taking a drink of water out of a keg about twenty feet away. Another witness stated that the section foreman left the place about half an hour before, and he saw him coming at the time of the accident, and he was there about two car lengths away. It is more than I can understand how the foreman could have warned the plaintiff of his danger. He was not present, and it is surely an unreasonable requirement that he should be present with the men at every moment of the day. The court doubtless gave ,this paragraph of the charge in view of the fact that the foreman was not present, and because the plaintiff was not in a position where warning was required from any one. He stood upright in a space seven- feet and ten inches wide between the tracks, and so near one of them as to be in danger from an approaching car, and where •it could be seen by a glance of the eye, which is almost as quick as a flash of light, and carelessly allowed his attention to be attracted to the switch .engine and adz, from which he wais in no peril, and he gave no attention to where he was standing. Under the eighth paragraph of the charge there should have been a verdict for the defendant. It appears to me no other result ought to have been reached, considering the undisputed evidence in the case. Plaintiff should have used not *276only Ms ears, but his eyes, to guard against an approaching car. As is said in Elliott v. Railway Co., 14 Sup. Ct. Rep. 85: “Such omission has been again and again, both as to travelers and employes on the road, affirmed to be negligence. The track itself, as it seems necessary to iterate and reiterate, is in itself a warning. It is a place of danger. It can never be assumed that cars are not approaching on a track or that there is no danger therefrom.” It is to be remembered that this is not a case where an employe, in escaping from one danger, and in the confusion, exposes himself to another. The plaintiff left the track on which the engine was approaching. He was in no danger, either real or apparent, from that, and he ought not to be allowed to recover damages for carelessly standing in the place where he was injured because he was interested in looking at the switch engine and in the removal of the adz from' the track. It was. a clear case of inattention and negligence wMch ought to preclude recovery. I doubt if 'any authority can be found for a recovery upon any such an' insufficient showing of care for one’s safety. In my opinion, the verdict should -have been set aside, and a new trial ordered.
Granger,. J., concurs' in this dissent.