deceased, consisting merely in failure. to jump from the engine, was unwarranted, and that a verdict based on the ground of contributory negligence in this regard should be reversed. The court said: "It will not do to establish a rule by which the duty of an engineer in such an emergency may be measured and dictated by cowardice and timidity, and by which his standing at his post and facing danger will be carelessness and negligence. The defense resting upon such a theory in this case cannot be sanctioned, although cases may possibly arise in which even the common prudence of an engineer might require him to leave his engine to escape danger; but such cases will be rare exceptions, and depend upon very peculiar circumstances."

3. Removal of hand or push cars to avoid collision.

In various cases it has been held that persons who remained on or near a railroad track in an attempt to remove a hand or push car from the track in order to prevent its collision with an approaching train were not guilty of negligence, as matter of law, but that the question was for the jury, in view of the probable danger to human life from a collision.

United States.-Great Northern R. Co. v. Harman (1914) L.R.A.1915C, 843, 133 C. C. A. 631, 217 Fed. 959. Alabama.-Kansas City, M. & B. R. Co. v. Thornhill (1904) 141 Ala. 215, 37 So. 412.

Kansas.-Condiff v. Kansas City, Ft. S. & G. R. Co. (1891) 45 Kan. 256, 25 Pac. 562.

Kentucky.-Chesapeake & O. R. Co. v. Lang (1909) 135 Ky. 76, 121 S. W. 993 (velocipede).

Louisiana.-Jones v. Mackay Teleg. Cable Co. (1915) 137 La. 121, 68 So.

And it was said in Pennsylvania Co. v. Roney (1883) 89 Ind. 453, 46 Am. Rep. 173, in affirming a judg ment for the death of an engineer in charge of a passenger train, which struck another train on wrongfully left open, that the engineer who remains at his post and faces danger is not to be deemed negligent; that such an engineer, in charge of a train laden with men, women, and children, is not bound to leap from his engine to escape impending danger; that if he believes his duty requires him to do what he can to save those under his charge, and he braves death in the discharge of that duty, the law has for him no censure, but has, on the contrary, high commendation and respect; and that it was no evidence of negligence that the engineer in this case did not leap, as did the fireman, but, instead of deserting his post, went to his death in discharge of a duty which his position cast upon him.

It is said (obiter) in Harris v. Clinton Twp. (1887) 64 Mich. 447, 8 Am. St. Rep. 842, 31 N. W. 425, that the emergency may justify what would otherwise be considered a rash and indefensible act, as where an engineer of a train of cars stands at his post in the endeavor to save the lives of the passengers, or others, when a collision is imminent.

Missouri.-Schroeder v. Chicago & A. R. Co. (1891) 108 Mo. 322, 18 L.R.A. 827, 18 S. W. 1094.

Nebraska.-Omaha & R. Valley R. Co. v. Krayenbuhl (1896) 48 Neb. 553, 67 N. W. 447.

New York.-Roll v. Northern C. R. Co. (1878) 15 Hun, 496, affirmed without opinion in (1880) 80 N. Y. 647.

Texas.-International & G. N. R. Co. v. McVey (1904) Tex. Civ. App. 81 S. W. 991; Houston & T. C. R. Co. v. Goodman (1905) 38 Tex. Civ. App. 175, 85 S. W. 492; Gulf, C. & S. F. R. Co. v. Brooks (1910) 63 Tex. Civ. App. 231, 132 S. W. 95.

But the court cannot declare, as matter of law, that one is not negligent in remaining on the track in front of an approaching train in order to remove a hand car. Thus, in an action for the death of a section foreman who was killed by being struck by a train when he was attempting apparently to remove from the track, or to set in motion, a hand car on which he and other employees were going to their work, the court in Condiff v. Kansas City, Ft. S. & G. R.

Co. (1891) 45 Kan. 256, 25 Pac. 562, held that instructions were properly refused to the effect that, as matter of law, the deceased, in refusing to leave the track or hand car, was not guilty of negligence, if at the time he believed, by pushing the car or getting it in motion, he could avert the wreck of the train and probable loss of life, since the question was one for the jury, and not for the court, and the qualification was omitted that the efforts of the deceased to avert the wreck of the train and probable loss of life must have been so made as to be compatible with a reasonable regard for his own safety; that is, in his efforts to save life, he must not have acted under such circumstances as constituted rashness in the judgment of prudent persons.

It was held in Great Northern R. Co. v. Harman (Fed.) supra, that a trespasser pushing a push car along a railroad track is not, as matter of law, negligent in attempting to remove the car from the track upon discovering the approach of a train, instead of getting himself out of danger, so as to relieve the railroad company from liability for negligently injuring him; the question of such contributory negligence being for the jury.

In an action by a section hand against a railway company for injury by being struck by a train while he was attempting to remove a hand car from the track, it was held in Kansas City, M. & B. R. Co. v. Thornhill (Ala.) supra, that contributory negligence was not necessarily shown. by allegations of the complaint that the hand car was stopped only a few yards in front of the locomotive, which was approaching from the opposite direction, whereupon the foreman in charge negligently ordered the plaintiff and others to remove the car from the track, which order the plaintiff was bound to, and did, obey, but that, without having time to understand and realize the danger in so obeying, in the attempt the plaintiff was struck by the engine and sustained the injury in question. And it was held that contributory negligence was not

necessarily shown by the fact that the plaintiff returned from a position of safety, after alighting from the car, in order to remove it from the track.

The test to be applied in an action for death of an employee of a railway company, who is allowed to use a velocipede on the track in the performance of his duties, and is killed by a train while attempting to remove it from the track, in case the employee returned for this purpose from a place of safety with knowledge of the approach of the train, is whether he had reason to believe that the velocipede endangered the train, and used such care as might reasonably be expected of a person of ordinary prudence similarly situated. Chesapeake & O. R. Co. v. Lang (Ky.) supra.

In Jones v. Mackay Teleg. Cable Co. (La.) supra, an employee of a telegraph company recovered damages from a railway company along whose road a telegraph line was being constructed, through being struck by an engine while he was attempting to remove from the track a hand car, operated by him in the construction work, the court holding that the evidence was sufficient to show that the engineer had the last clear chance to avoid the accident, and that, as to the plaintiff's contributory negligence, the rule applied that one who suffers injury while risking his life to save the lives of others in danger is not to be charged with contributory negligence for failing to exercise his best judgment in the emergency.

It has been held that contributory negligence was not shown as matter of law, so as to preclude recovery for injury sustained in attempting to remove hand or push cars from the track in front of an approaching train,

- where the foreman directed those who were attempting to remove the hand car to get out of the way of the train, which was then only about 60 feet away, and all escaped except the plaintiff, who stumbled and fell near the track, and was struck and injured by the hand car when it was thrown to one side by the engine, Schroeder v. Chicago & A. R. Co. (1891) 108 Mo. 322, 18 L.R.A. 827, 18 S. W. 1094:

where a section foreman was killed while attempting to remove a push car from the track, the evidence being sufficient to show negligence on the part of the railway company in failing to keep a proper lookout or to avoid the accident after the danger was observed, International & G. N. R. Co. v. McVey (1904) Tex. Civ. App., 81 S. W. 991;

- where an employee of a telephone company, who, with the consent of the railroad company, was operating a hand car upon the latter's track, sustained injury through excessive strain, causing rupture, in removing the hand car from the track upon the approach of a train which failed to give proper signals, Houston & T. C. R. Co. v. Goodman (1905) 38 Tex. Civ. App. 175, 85 S. W. 492;

- where a section foreman remained with the hand car in an attempt to remove it, until too late for him to escape an approaching train, although all the other members of the crew with him fled and escaped injury, there being evidence of negligence on the part of the railway company in failing to give the required signals, and in failing sooner to discover the danger, or to stop the train after it was discovered, Gulf, C. & S. F. R. Co. v. Brooks (1910) 63 Tex. Civ. App. 231, 132 S. W. 95.

In Omaha & R. Valley R. Co. v. Krayenbuhl (1896) 48 Neb. 553, 67 N. W. 447, an action for death of a section foreman who was killed by being struck by a train while he was attempting to remove a hand car from the track, the court laid down the rule that the deceased could not be charged with contributory negligence because he remained upon the track for the purpose of removing an obstruction endangering an approaching train, when he might have saved himself by abandoning the track, and leaving the train to its fate.

Whether a push car is such a dangerous obstruction as to imperil the lives of persons on an approaching passenger train through derailment of the train, and therefore justify one in remaining on the track in an effort to remove the car, has been held to be

a question for the jury. International & G. N. R. Co. v. McVey (Tex.) supra.

And whether a railroad employee, who is injured by being struck by a train when he is attempting to remove a hand car from the track, is acting for the purpose of saving human life, or merely for the purpose of protecting property (in which latter case his conduct would be unjustified), was held a question for the jury, and a judgment for damages so sustained was affirmed, in Roll v. Northern C. R. Co. (1878) 15 Hun (N. Y.) 496, affirmed without opinion in (1880) 80 N. Y. 647.

It was held also in Roll v. Northern C. R. Co. (N. Y.) supra, that an instruction was properly refused that the plaintiff was not justified in placing himself in a position of danger, unless he actually saw some person in imminent, personal peril, it being held that it was immaterial, as to the application of the doctrine that one is justified in risking his own life to preserve the life of another, provided he does not act rashly or recklessly, that the attempt was to save the life of persons upon a railroad train, not in view, but known to be on the train. It was unnecessary to decide the question of contributory negligence in Nelson v. Northern P. R. Co. (1915) 50 Mont. 516, 148 Pac. 388, the action being under the Federal Employers' Liability Act, and a nonsuit being granted on the ground that culpable negligence on the part of the railway company was not shown, where a section foreman was injured by being struck by a train while attempting to remove a hand car from the track.

4. Stopping runaway cars.

A brakeman, in endeavoring to stop a detached car moving down grade toward a passenger train, and avoid a collision, may lawfully imperil his life to protect the lives of those on the train, provided he uses such care as may be reasonably expected of a person of ordinary prudence, similarly situated. Chesapeake & O. R. Co. v. Brown (1913) 152 Ky. 479, 153 S. W. 753.

And the doctrine that one is not

negligent, as matter of law, in risking his own life, or serious injury, to prevent injury to others in imminent danger, unless he acts rashly or recklessly, was applied where the plaintiff, seeing a delivery truck of the defendant, unattended, moving down grade at the rate of 3 or 4 miles an hour, in a direction likely, as he thought, to imperil human life, attempted to get on the truck and guide it to safety, and in doing so was injured by getting between the truck and a trolley pole. American Exp. Co. v. Terry (1915) 126 Md. 254, 94 Atl. 1026, Ann. Cas. 1917C, 650.

And it was held in McCallion v. Missouri P. R. Co. (1906) 74 Kan. 785, 9 L.R.A. (N.S.) 866, 88 Pac. 50, that the court could not declare, as a matter of law, that a railway employee whose foot was run over by a car when, in the course of his employment, he attempted to stop it with a pinch bar applied to the wheels, as it was moving by force of gravity toward another car on which a man was standing, was guilty of contributory negligence, since the effort might have been to avoid danger to another, and the rule applied that where one is placed in a dangerous position by the negligence of another person, and, in a sudden emergency, adopts a perilous alternative in an endeavor to avoid danger to himself or to others, he is not guilty of contributory negligence, as a matter of law, although, as it turns out, he should have acted differently.

So, it was held that contributory negligence was not shown, as matter of law, in an action for death of a railroad yard man while attempting to board runaway cars, or to cross the track to warn others of the danger, where the evidence was to the effect that while in a place of safety he voluntarily ran to the track on which the cars were running down grade toward an engine standing on the same track, on which engine there were an engineer and fireman, with a certainty of collision unless the cars were stopped, and a probability that, if a collision occurred, not only would a destruction of the property of the railway com

pany result, but perhaps, also, a loss of human life. Missouri P. R. Co. v. Lyons (1898) 54 Neb. 633, 75 N. W. 31, 4 Am. Neg. Rep. 172.

And where one engaged in loading lumber upon a dock from small, flattopped cars which were allowed to run by gravity from the lumberyard down a slight incline toward the dock was injured when he attempted, by blocking the wheels, to stop a car negligently set in motion, fearing that if it ran to the end of the track it might destroy property or injure someone, there being no bumper at the end of the track, and one of the end rails being shorter than the other, it was held that he was not guilty of contributory negligence, as matter of law, although, as the result showed, no harm would have come, had the car been allowed to run to the end of the rails. Thoresen v. St. Paul & T. Lumber Co. (1913) 73 Wash. 99, 131 Pac. 645, 132 Pac. 860. The court said that the plaintiff's acts may not have been essential, either to preserve property from loss or to protect other individuals

from harm; nevertheless the question whether they constituted contributory negligence was for the jury; that he was entitled to act upon appearances, and, if his conduct was that of a reasonably prudent person under the circumstances, he should not be charged with contributory negligence, although he may have been deceived thereby.

Attention is called also to Dean v. Kansas City, C. & S. R. Co. (1911) 156 Mo. App. 634, 137 S. W. 603, although the court does not discuss the question of imminent peril to human life, except to say that disobedience to the foreman, or slowness in attempting to obey, might have meant great disaster by the car's getting away. In this case section hands were loading ballast on a car which had a defective brake, and was standing on a grade. While the foreman was wheeling a load of ballast over a gangplank attached to the car, the latter began to move; and one of the workmen, who, in obeying the order of the foreman to stop the car, attempted to board it on the same side the gangplank was on, was held not

necessarily negligent in failing to choose the least hazardous course, although, while making the attempt, the plank fell and injured him.

But the doctrine that, before the rescuer is authorized to act on the ground that another person is in imminent peril, there must be more than a mere suspicion of danger, actual peril or at least such circumstances as induce a reasonable belief of such peril being necessary, was applied in Eversole v. Wabash R. Co. (1913) 249 Mo. 523, 155 S. W. 419, to preclude recovery where a railroad employee voluntarily boarded an engine of another railway company, in order to assist in stopping cars which were running unattached down a slight grade in a railroad yard, the time of day and other circumstances not showing imminent peril to any person, or grounds for reasonable apprehension of such peril.

5. Dangers incurred in attempts to flag trains.

The rule relieving from the charge of contributory negligence per se one who risks his own life in order to rescue another in imminent peril was applied, where a bridge foreman, believing a bridge to be unsafe for the passage of a train, placed the proper danger signal at the approach to the bridge, which was ignored by the engineer of the train, and, in order to stop the train, which carried passengers and was running at a high rate of speed, went to the center of the bridge and attempted to flag the train, but, the engineer failing to heed the warning in time, the foreman was struck by the engine and killed. Bourdier v. Louisiana Western R. Co. (1912) 131 La. 689, 60 So. 78. The court in this case held. that the deceased could not be charged with contributory negligence, as matter of law, in seeking to escape by running toward the end of the bridge when his signal was unheeded, instead of, as might have been safer, jumping from the bridge into the water 8 feet below, or stepping aside on a space about 21 feet wide along the track. The court applied the rule that one placed in a posi

tion of danger through the negligence of another is not bound to weigh dangers, as under ordinary circumstances, and is not chargeable with contributory negligence because of failure to choose the least dangerous course of action.

But it was held in Wright v. Atlantic Coast Line R. Co. (1910) 110 Va. 670, 25 L.R.A. (N.S.) 972, 66 S. E. 848, 19 Ann. Cas. 439, that to relieve one from the charge of contributory negligence in standing in front of an approaching train, on the ground that he was attempting to rescue another from peril, it must appear that such other was in imminent danger, and that it was caused by the negligence of the railroad company. And it was held that the plaintiff, in attempting to signal a train approaching a flag station, was negligent, as matter of law, in remaining on the track in front of an approaching engine until it was too late to avoid being hit by it; and that she could not excuse her act on the ground that she was attempting to stop the train, in order to rescue from danger her mother, who was approaching the station along a highway with her back toward the train, of the approach of which, however, she had knowledge, although the mother, in fact, stepped in front of the train and was killed; since, while the plaintiff was attempting to signal it, there was no imminent danger to the mother, and such danger did not arise until the latter stepped upon the track.

Although it seems that the decision might have been based on the ground of a failure to show negligence on the part of the defendant railway company, the view taken in Blair v. Grand Rapids & I. R. Co. (1886). 60 Mich. 124, 26 N. W. 855, 16 Am. Neg. Cas. 146, that the plaintiff, as matter of law, was guilty of contributory negligence amounting to extreme rashness and recklessness, and could not therefore recover, seems opposed to the general rule in the cases under consideration. In this case, the plaintiff, who was in no way connected with the defendant railway company, was requested by its watchman to go in a certain direction and stop a construction train which