The plaintiff recovered a judgment against the defendant, in the capacity of administratrix of the estate of her husband, in an action for negligently causing his death. The accident occurred upon a spur of the defendant’s railroad, at a point where the road was constructed upon ground formed partly by an excavation in the side of a hill, and partly by the fill made by *240the excavated earth, whereby one side of the track was apparently upon undisturbed ground, and the other upon made ground. The engine turned over as the track slid ■down the bank, killing the intestate, who was fireman upon’the locomotive, and who, at the time, was standing upon a platform in front of the cab window, upon the side next the fill, engaged in cleaning the dome of the engine. The train was a gravel train, engaged in surfacing up the track, then in process of completion.
The undisputed evidence shows that the superintendent of this work directed the men to proceed with caution, and to be prepared to take care of themselves, for the track was new, and he did not know that an engine had been over it. This was repeated just before the start, and was in the presence of the fireman in both instances. The engineer afterwards told deceased, two or three times, to come to his place in the cab, but he looked at the grade and replied, “Oh, this is all right,” and did not ■come. He was subsequently found, under the dome of the engine, dead.
This evidence, being undisputed, left no question for the jury. The court should have directed a verdict for the defendant, in view of the contributory negligence of the deceased, who, when warned of hidden danger, chose to assume the risk.
The judgment will be reversed, and no new trial ordered.
The other Justices concurred.