HAYES & SCHUYLER and BARKER & McCoy, for appellant. GIVEN, J. — 1. The grounds of defendant's motion for a verdict were that there is not sufficient evidence to sustain a finding that the defendant was guilty of the negligence alleged, and that the evidence shows without any dispute that the plaintiff himself was guilty of negligence which directly contributed to his injury. Plaintiff was at the time he was injured, and had been for over three years, in the employ of the defendant as a locomotive fireman, and was familiar with the duties of a fireman and the manner of making up and moving trains of cars. On the night of June 24, 1893, the engine upon which he worked was engaged in making up a train of freight cars in the yards at Clinton, preparatory to running west. As was his duty, the plaintiff had lighted the headlight and sidelights on the front of the engine before it was brought from the roundhouse. After setting out some cars, the engine, with eight or ten cars attached, was moving to a point west of Fifth street, where it stood for a time, headed west. The next thing to be done upon signal was to back the engine and eight or ten cars attached thereto eastward, and to couple to the other cars composing the train. While the engine was thus standing still, the plaintiff got down from the cab on the north or right-hand side, and passed around to the front of the engine, to see if the lights were burning properly, and, in doing so, discovered that the cap to what is called the "peep hole" was not in proper position. It appeared that this cap is removed when the engines are being cleaned in the roundhouse, and that it is the duty of the fireman to see that it is in place when the engine is brought out, because, if not in place, it affects the draft, and impedes the generation of the steam. Seeing that the cap was not closed as it should be, the plaintiff went upon the front part of the engine, and, standing upon the steam chest, tightened the cap, and, while doing so, observed a signal given by some one in the rear of the train, for the engine to back east, so that the coupling could be made. The engine and cars attached were promptly moved backward, and, while moving, the plaintiff stepped from the steam chest to the bulkhead of the engine, and was moving, stooping down. the risk of the employment by continuing in it with knowledge of the increased hazard and that he was guilty of contributory negligence as having set a switch in order merely to save himself the labor of walking some fifty or seventy-five feet to the cars or of getting on the rear of the engine, or into the cab, he deliberately stepped between the rails and as the engine approached him at an unknown rate of speed, he voluntarily took the chance of stepping or jumping onto the pilot, his foot slipped off and he was rolled along the track and injured. to get hold of the flagstaff to balance himself, with the view to getting off the engine at the front, and passing around to the entrance of the cab, while in that position, the standing cars were struck by the moving cars, and the plaintiff thereby thrown from his position on the bulkhead to the ground, and quite seriously injured. There was a footboard with a handrail extending from the cab to the front of the engine, by which the plaintiff could have, after adjusting the cap to the peep hole, returned to the cab in safety. He gives as a reason for not doing so that the cab window was closed, so that it could only be opened on the inside, and that the engineer was busy at the time. It also appears that there were two large iron braces in front of the engine, one of which was within easy reach of the plaintiff when on the bulkhead. The evidence shows that, in signalling for such movements different signals are used, so as to indicate the distance to the point of coupling. Plaintiff describes the mode of signalling as follows: "If you want to move to a position, a swinging motion of the lantern means to back up. If it is quite a distance, they will give a quick signal, and sometimes a long signal. As a general thing, they give a fast signal. If you get a fast signal, you have a good distance to go. In getting that, you expect to go eight or ten car lengths. If it is only one or two car lengths, you get a little jerk. If it is two little jerks or three little jerks, you are to know that it is that number of cars, or the front of the train is to move that far." Witness describes it as follows: "If the distance was short, they could give a slow easy signal, and, when they were about to strike, they would hold their lamps still, indicating they were pretty near there. In giving this round motion, there was a difference in the sweep of the signal to indicate a long distance or a short distance between the cars to be coupled. A quick motion, that there was quite a distance to go. motion would indicate that you didn't have so far to go." Mr. O'Donald says: "If you want a train to back up, if they have a good distance to go, they give a big signal, the wide swing of the arm, a good big swing, so they know there is quite a distance to go. And, if it is a short distance, they move the lamp slowly. These signals are given for the purpose of regulating the working of the engine and the working of steam upon the engine." Plaintiff says: "The man was on the side of the train, and gave a signal, swinging round with the full length of the arm. It was a quick long signal and signified that we had quite a long distance to go before we came to the rest of the train." He further states: "At the time I saw the signal, we had gone back not over a car and a half. I stepped onto the pilot, and stooped over, and, before I could get hold of the flag standard, they struck. I was going to sit down, instead of jumping off in the night-time, until it struck." Again he says: "It was while in the act of stooping over, and before I got down far enough to take hold of anything, that they struck and knocked me off. I did not take hold of this brace on the front end, that is down by the pilot beam. There was nothing between it and me. We never get hold of that even when the engine is going when we let go of the handrail." 2. There is no evidence whatever to support the charge that the engine and cars attached thereto were suddenly, too rapidly, or unskillfully moved against the standing cars, nor that there was any negligence in having the standing cars on the track where they were. The only indication of negligence upon the part of the defendant's employees was in the kind of signal given, or, in other words, that the signal given indicated a longer distance to the point of coupling than should have been indicated. The signals. only indicate in a general way the distance to be passed, and the employee giving that signal did not know, and had no reason to expect, that the plaintiff was in a place of danger, as he was. The signal was for the government of the movement of the engine and cars attached, and seems to have accomplished that purpose in a proper manner. We have not set out the evidence in full on this subject, but sufficiently so, we think, to show that there was no negligence in the giving of the signal of which the plaintiff has a right to complain. 3. Knowing, as the plaintiff did, that the engine and eight or ten cars were being moved backward, and that in a very brief time they would come in contact with the standing cars, we think it was manifest negligence on his part not to have returned to the cab by way of the running board, where the handrail would have protected him from danger. It was not a sufficient excuse for going as he did that the engineer was busy at the time, and that the window would have to be opened from the inside. It was the way of safety, and he should have taken it. He testifies: "I knew what we were backing up for. I knew the cars were coming together afterwards. I knew that we would not expect to find them in less than eight or ten car lengths. I didn't know the exact distance. I expected them to back until they struck or reached the other cars. That is the reason that I started to sit down on the pilot beam, and got thrown off because they came together sooner than I thought they would." He failed to protect himself by taking hold of the brace or flag standard, as he could have done. The plaintiff has no reason whatever to assume that the impact of the cars would be a few seconds. later than it was, and he was unquestionably guilty of great negligence in putting himself in that place of danger under the circumstances then known to him. We are in no doubt that the motion for verdict was properly sustained, and the judgment is therefore affirmed. NEET v. BURLINGTON, CEDAR RAPIDS AND NORTHERN RAILWAY COMPANY. Supreme Court, Iowa, October, 1898. TRESPASSER ON TRAIN FALLING AND RUN OVER BEFORE IT WAS STOPPED — NEGLIGENCE OF TRAIN EMPLOYEES. Where it appeared that a boy seventeen years of age not in the defendant's employment and having no right there, jumped upon the rear platform of a moving freight train and soon after, while the train was backing, was thrown by the motion of the train to the track in front of it, and was in some manner caught and carried 254 feet before the train was stopped, and both legs were crushed, and the evidence was conflicting as to whether he was run over immediately after falling upon the track or just before the train was stopped, and whether the train hands were informed of his position, and it appeared that the train could have been stopped within a hundred feet at any time, the question whether the injury might have been prevented by the exercise of reasonable care after the discovery of the injured person was for the jury. APPEAL from judgment, District Court, Grundy County, in favor of plaintiff. S. K. TRACY, for appellant. WILLIAMS & KERN, and BOIES & BOIES, for appellees. LADD, J. — The only question presented is whether the verdict is sustained by the evidence. As a freight train, consisting of twentythree loaded cars, one empty, and the caboose was passing the depot at Rhinebeck, in a southeasterly direction to a point beyond certain switches, William Neet jumped on the platform of the moving caboose.. After passing the switches, the train stopped and backed on the passing track in a northwesterly direction. The head brakeman, Jordon, signaled the engineer to stop, and undertook to pull a pin so as to uncouple the rear cars. This pin was wedged in by cinders so that it could not be readily pulled, and the train, in taking up a slack, caused the caboose to jerk, and threw Neet from the platform of the caboose back on the track. He was caught in some way, and carried back 254 feet before the train was stopped. The wheels of the truck ran over both legs, causing injuries which resulted in amputation. He was but seventeen years old, not in the employment of the defendant, and had no right to be on the train. It is not claimed that the defendant is responsible for injuries occasioned by the fall, or which resulted to him immediately afterwards. Indeed, recovery is based on injuries, if any, to him after the train had moved back, subsequent to his fall, 150 feet. charges of negligence are 1, that the brakeman failed to exercise ordinary diligence in stopping the train after being informed of Neet's perilous situation, and 2, that the head brakeman failed to give the engineer the emergency signal upon being so informed, and that, had such diligence been exercised, or signal been given, the train would have been stopped in time to have avoided the injury. Was there any evidence sufficient to go to the jury upon these two charges of negligence? The defendant insists that the evidence conclusively shows that the wheels ran over the legs immediately after Neet's fall. Neet testified that he fell inside of the rails, immediately turned over on his hands and knees, and was caught in the back through his clothing by a rod just back of the first brakebeam, from which he was torn loose when his legs were run over, and that he paddled along on his hands until the train was stopped. A scar on his back, and the condition of his clothing tended to confirm this story. He also said the wheels ran over his legs just before the train stopped. Davis saw the boy fall, and observed him struggle to keep his legs from under the wheels. Clifford was not positive, but thought his feet fell inside of the rails. On the other hand, Randall testified that the boy fell with his feet over the rails, and that his legs were run over immediately. Gibson is unable to say whether his legs fell across the rails or he threw them there, but is positive that they were run over before the cars had moved ten feet. Barr, the conductor, felt the jar of the car wheels as though rising and going over something. All that can be said concerning this evidence is that it was in conflict. If the jurors believed Randall and Gibson, or relied upon the inference to be drawn from the statement of Barr, they might well have found that the injury occurred within the 150 feet mentioned in the petition. But if they relied upon the testimony of the party injured, somewhat corroborated by other witnesses, then they might well have found that the injury occurred shortly before the train stopped. When Neet was taken from under the cars it was found that a small portion of his trousers on the right leg was caught between the brake shoe and the wheel - enough to carry him along. It is said that, because the brake was set immediately after his fall, his pantaloons must have been caught at that time. If so, then this physical fact is conclusive that |