The opinion of the court was delivered by
Garrison, J.This is an action for damages for personal injuries. At the trial the plaintiff examined witnesses and rested. The defendant called no witnesses. Plaintiff’s counsel was thereupon permitted, over objection, to sum up the evidence to the jury. This ruling, to which an exception was sealed, has been assigned as error. The ruling was correct. The matter is regulated by rule 47 of the (Supreme Court, the pertinent language of which is: "In summing up evidence in matters of fact, the counsel for the plaintiff shall be first heard.”. As originally promulgated at the Feb*683ruary Term, 1818, it was expressly provided that “this rule shall prevail at the Circuits as well as at the bar." 1 Sou Ik. 13. The practice thus ordained has prevailed at the Circuits for almost a century.
The refusal of the trial court to nonsuit the plaintiff upon the ground of his contributory negligence is also assigned as error. This ruling, likewise, was correct.
The action was by one railroad employe against a fellow employe. The plaintiff's duty called him to work beneath a locomotive as it stood over an ashpit. While in that position the defendant ran his locomotive, against the plaintiffs, driving it over the plaintiff’s arm. The proof was that it was customary to block all locomotives that came on the ashpit, and that this was done, not by the man who worked under the engine, but by pitmen- and that upon the occasion in question the engine under which the. plaintiff was working was being blocked on one side by one. of these pitmen. This was the testimony of the defendant himself. In view of this testimony, the question whether the plaintiff was in default was not for the court.
Idle defendant also requested the court to charge that if-the plaintiff went under the engine without having the wheels blocked he would be guilty of contributory negligence, even though it was not his duty to block them, ddiis was, in effect, a repetition of the grounds of motion to non-suit, and was properly denied.
The judgment of the.Supreme Court is affirmed.
For affirmance — Tj-ie Chancellor, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Yredenbuikih, Yroom. Green, Gray. 13. For reversal — None.