did not have knowledge, the fact could have been shown by crossexamination.

5. A witness named Cameron testified that he was an engineer, and made one run on Gibson's train before his death, and was permitted to testify, over the objection of the plaintiff, that on that occasion he took the engine "down between A and B avenues," to look it over. We are of the opinion that the testimony was proper as tending to show, with other evidence, where the engine of the decedent was ordinarily inspected. Cameron and another engineer testified that it was dangerous for a person to thrust an arm between the spokes of a locomotive wheel when it was at rest, because of the switching which was done when Gibson's train came in. It is objected that the facts to which the witness testified were not the subject of expert testimony; that it was sufficient to show the facts. and the manner of doing the work; and that it was the province of the jury to determine whether the act was dangerous. The facts shown by the testimony make it clear beyond question that it was dangerous for the decedent to thrust his arm between spokes of the drive wheel as he did, and the jury could not have reached any other conclusion had the opinions of the witnesses not been given. Therefore the opinions of the witnesses could not have been prejudicial, although we are of the opinion that the record does not show that they were competent.

6. Several witnesses were permitted to testify, in substance, that it was the rule, if an engineer went into a dangerous place about his engine, for him to first notify the train crew or switching crew or all persons working about the train. The plaintiff contends that the testimony to that effect was erroneously admitted, because a rule of the defendant was not pleaded, citing Mayes v. Railway Co., 63 Iowa, 562, 14 N. W. Rep. 340, and 19 N. W. Rep. 680; Independent Dist. of Burlington v. Merchants' Nat. Bank, 68 Iowa, 343, 27 N. W. Rep. 255; Nicholaus v. Railway Co., 90 Iowa, 85, 57 N. W. Rep. 694; and Strong v. Railway Co., 94 Iowa, 380, 62 N. W. Rep. 799. We do not think those cases are applicable to this case. They refer to the necessity of pleading affirmative defenses. The rule referred to by witnesses in this case does not appear to have been a formal or printed rule of the defendant, but a custom of employees, and the testimony in regard to it was competent and material, as tending to show the negligence on the part of the decedent which the defendant pleaded.

7. The appellant complains of a paragraph of the charge to the jury which was to the effect that if it was the duty of the decedent to inspect his engine upon his arrival in Cedar Rapids, at the time.

of the accident, and it was the usual custom, before entering upon his duties, to notify the parties in charge of the switch engine that he was about to inspect his engine, and he failed to do so, he was guilty of contributory negligence, and the plaintiff could not recover. The ground of the complaint is that there was no evidence on which to base that instruction, but the complaint is based upon a misapprehension of the record. That shows that there was evidence which tended to show that it was the custom of the decedent to notify other employees of the defendant when he was about to inspect his engine, and that he failed to do so the night of the accident.

8. The ninth paragraph of the charge was as follows: "If you find from the evidence that inspecting the engine was one of the duties of the decedent that night on his arrival at Cedar Rapids, and it was also his duty, in doing so, to do it carefully, for his own safety, and to take reasonable precaution to avoid accident to himself in doing the work, and if, in inspecting the locomotive, one of the ways of doing it was safe, and the other way was dangerous, then the deceased should have adopted the less dangerous course in doing the work; and if he did not do so, but adopted the more dangerous way, and thereby contributed to the accident, then your verdict should be for the defendant." The evidence shows that the eccentrics might have been inspected by passing an arm between the spokes of the drive wheels, as was done by the decedent, or by crawling under the engine, but that the latter plan was not practiced. It was also shown that the engine might have been inspected when it rested against the train at the depot, or that it might have been run to a point some distance from the train, and have been there inspected; and the evidence tends to show that on the night of the accident the inspection was attempted after the engine was uncoupled, but before it was moved from the train. The decedent's run ended at Cedar Rapids, and his duties for the night would have been ended with the inspection and delivery of the engine to the hostler, to be placed in the roundhouse. It was the custom to attach to his train, as soon as he reached Cedar Rapids, several cars; and the men in charge of the switching waited on a side track with the switch engine, and, when the train stopped, proceeded to cut from the train cars to be left, if any, and to attach to it other cars which were to be taken out. That was done while the engine of the train was being inspected, and the decedent must have been fully aware of the fact. One of the complaints made of the ninth paragraph of the charge is that it required the jury to find whether it was the duty of the decedent to use reasonable precaution to do

his work carefully for his own safety. It is insisted that the question thus submitted was of law, which should have been decided by the court. That is true, but it is clear that the plaintiff could not have been prejudiced by that part of the charge, since it seemed to authorize the jury to find that it was not the duty of the decedent to use the care stated.

It is also objected that the paragraph quoted required the jury to determine whether one of the ways of inspecting the engine was safe, and the other dangerous, without any evidence upon which to base such a finding. We think that objection is without substantial merit. The danger of which the charge treated was not that to be apprehended from the moving of the engine when detached, but to its movements when caused by the switching. That there were two practical ways of making the inspection, one of which was safe from the danger referred to, and the other was not, is apparent from the evidence.

It is further insisted that the paragraph was erroneous in stating, in effect, that the decedent was required to choose the manner of inspection, which was less dangerous than the other, without regard to his care or negligence. It is claimed that whether the decedent, in making choice of methods, used ordinary care and prudence to protect himself from injury, was a question of fact for the jury to determine, and that the court erroneously treated it as a matter of law. We think that objection is well founded. It has been frequently held by this court that a person is not necessarily negligent in adopting a dangerous way of accomplishing an object, when a safe way is open to him; that whether he is negligent is not ordinarily a question of law, but of fact, to be determined according to the circumstances of the case, the reasons for doing what was done, and the care used to avoid danger. Nichols v. Town of Laurens, 96 Iowa, 388, 65 N. W. Rep. 335; Graham v. Town of Oxford (Iowa) 75 N. W. Rep. 473; Mathews v. City of Cedar Rapids, 80 Iowa, 460, 45 N. W. Rep. 894; Kendall v. City of Albia, 73 Iowa, 241, 34 N. W. Rep. 833; Walker v. Decatur Co., 67 Iowa, 307, 25 N. W. Rep. 256; Belair v. Railroad Co., 43 Iowa, 662. The paragraph under consideration did not permit the jury to consider the facts, if any, which tended to justify the decedent in making the inspection with his engine against the train, but required a verdict for the defendant if the way adopted was dangerous. It was therefore erroneous.

9. In the tenth paragraph of the charge the court instructed the jury that, if the decedent exercised ordinary and reasonable care in making the selection of the manner in which he should discharge the duties of inspecting his engine, he was not guilty of negligence

in choosing the mode of making the inspection. In the thirteenth paragraph the jury was told that if the decedent could have moved his engine from the train to make the inspection, and it would have been safer to do so, yet that fact alone would not conclusively show negligence, if he inspected the engine in the usual place and manner, and, in doing so, used ordinary and reasonable care. In the fourteenth paragraph the jury was told that, if the decedent used ordinary and reasonable care in inspecting the engine at the place where he did inspect it, the fact that it would have been safer for him to have moved the engine from the train to inspect it would not of itself constitute such contributory negligence as to defeat a recovery. It is claimed that these paragraphs are in conflict with the ninth paragraph of the charge, and no argument is required to show that the claim is well founded. A mere reading of the paragraph shows the conflict, and they cannot, on any reasonable theory, be construed to be in harmony. It is said that they were much more favorable to the plaintiff than they should have been; and that may be true, but there was no attempt made to take the case from the jury. It was submitted on the theory that the evidence would have sustained a verdict for the plaintiff. Since that was done, the jury should have been properly instructed. 20 Iowa, 562; Conway v. Railroad Co., 50 Hartzell, 58 Iowa, 520, 12 N. W. Rep. 557; 64 Iowa, 315, 20 N. W. Rep. 717; State v. Keasling, 74 Iowa, 528, 38 N. W. Rep. 397; Pumphrey v. Walker, 75 Iowa, 408, 39 N. W. Rep. 671; Neville v. Railway Co., 79 Iowa, 232, 44 N. W. Rep. 367. For the errors pointed out the judgment of the Superior Court is reversed.

Hoben v. Railroad Co., Iowa, 465. See State v. Hawes 7. Railway Co.,

BROWNFIELD v. CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY.

Supreme Court, Iowa, January, 1899.

RES IPSA LOQUITUR.

The rule of res ipsa loquitur does not apply to the case of a fireman injured by the derailment of a locomotive caused by a broken axle.

EXPERT EVIDENCE. — Expert testimony as to whether a broken axle of a locomotive might have derailed the train was admissible as was also expert testimony as to whether certain peculiar motions of the locomotive before the accident indicated a broken axle.

ASSUMPTION OF RISK. The fact that the engineer remained at his post on the locomotive knowing there was some defect in it warranted the fireman in relying upon the superior knowledge of the engineer, and how far this would operate as an excuse for his conduct in remaining upon the locomotive though he was aware that it was acting strangely, was for the jury

APPEAL from District Court, Washington County. At the close of the evidence for plaintiff, the jury, by direction of the court, returned a verdict for defendant.

M. A. McCOID and J. F. HENDERSON, for appellant.

CARROLL WRIGHT and SCOFIELD & SCOFIELD, for appellee.

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WATERMAN, J. Plaintiff was in the employ of defendant as a locomotive fireman, and had so been at different times for a number of years prior to his injury. At the time complained of, he was engaged on his engine, which was hauling a freight train from Rock Island, Ill., over defendant's road, to Eldon, Iowa. The engineer had an order, on leaving Washington, which was an intermediate station, to run at a speed of thirty-five miles an hour to Brighton, thirteen miles west. Plaintiff knew of this order. Some little time after leaving Washington, plaintiff noticed that something was wrong with the engine. As he says, "It was jerking backward and forward in a strange way. It was jerking and twisting around, and riding rough. It was knocking, hitting, or kicking, or something of that kind. * I hadn't seen her act that way before, nor anything like it." Plaintiff says that he thought this might have been caused by the slack wedge, between the engine and the tender, being out. He examined, and found this was not the cause. After this, a stop was made at Verdi, seven miles from Washington, but no examination was made, either by plaintiff or the engineer. After leaving this station, and when at the top of what is called "Verdi Hill," the strange action of the engine continuing, plaintiff asked the enigneer "if he hadn't better stop the engine before he went down the hill," to which the latter responded, "No; when he got to Brighton, he would look the engine over." At the foot of the hill, the engine left the track, and, in the general wreck that ensued, plaintiff was injured. After the accident, one of the drive wheels of the engine was found broken from its axle, and lying beside the track.

2. The amended petition, upon which the case was tried, charges negligence in many particulars; in the construction of the engine, the failure to inspect it, the condition of the track, the rate of speed, and several other matters. The only evidence, however, related to some defect in the engine, and to the conduct of the engineer in running the train after such defect was or should have been known