eth and Twenty-first streets, a little east of Grand Trunk Junction. The trial judge directed a verdict for the company and the plaintiff alleged error. One Brooks had contracted with the defendant to lay water-pipe along its right of way from the river to the shops at Grand Trunk Junction. In carrying on this job Brooks had several companies of men at work upon it, and the plaintiff's intestate belonged to one of these parties. He was engaged in preparing the ditch a little west of Twenty-first street. A box for keeping the tools, and which was moved from one point to another as convenience suggested, was standing within the roadway south of the track and near the fence, and between 75 and 100 feet east of Twenty-first street. The deceased quit work on the day in question, March 10, 1880, at 6 o'clock, and in company with McCarthy, a fellow-laborer, started to put his shovel in the box. They proceeded down the track until they had passed Twenty-first street, at which point McCarthy was called back. The deceased went on and deposited his shovel in the box. He was then only distant about 100 feet from Twenty-first street, but instead of returning to it for the purpose of passing to his home, and which was practicable without going upon the tracks, he went down the tracks to reach Twentieth street, which was some 700 feet away. At this place trains were almost constantly moving; those going west following the south main track, and those going east pursuing the north track. The deceased fell in with another man, and the two followed the tracks together. At this time the Jackson express going west on the south track rang its bell and started. It had been standing at Twentieth street. About the same time a Grand Trunk train, hauled by one of defendant's engines, passed east on the north track, the two tracks being about eight feet apart. The trains passed cach other about midway between the two streets. The Grand Trunk train was going about eight miles an hour. It was about dusk, but there was nothing to prevent seeing the train with proper attention. There was a space of some eight feet between the south main track and the south side track, and a like space between the north and south main tracks, and between the north main track and the stock-yard track there was another space of 15 feet. There was no difficulty in finding safe positions. The ground of preference for the track seems to have been that the

way to Twentieth street outside the tracks was very muddy. When the Grand Trunk train had passed on to a point about 448 feet east of Twenty-first street, and some 300 feet distant from the toolbox, it struck decedent and the man who was with him and ran over them.

The evidence does not explain whether the men were walking on the north track, or whether they had stepped upon it from the other just ahead of the Grand Trunk train, but the facts rather point to the probability that they noticed the Jackson train, and suddenly changed from the south track to the other side to avoid it, and without noticing the approach of the Grand Trunk train. But whatever may be the fact in this respect the effect will be the There is no pretence of any wanton or wilful conduct on the part of defendant, and it is needless to inquire concerning the negligence charged against it. It may be freely admitted for this occasion that it failed to observe and exercise proper care. It does not aid the case. On no view of the facts can it be said that the casualty was not chiefly owing to decedent's own negligence.

same.

The case on its facts is almost identical with that of Campau, 35 Mich. 468, and in principle there is no difference, and the observations there of Mr. Justice Cooley are strictly applicable: “The decedent had voluntarily placed himself in a position of great danger. He was making a highway of a railroad track where he had no lawful right to be, and upon which dangerous vehicles were constantly liable to pass. Under such circumstances he was called upon to exercise more than ordinary care and caution to protect himself against danger which was constantly imminent. Instead of this, he seems not to have availed himself of any precaution whatever." "If the plaintiff can recover in a case like this, it is plain that the negligence of the injured party must be held immaterial in any conceivable case."

An attempt is made to distinguish the case before us from the case cited on the ground that decedent was a laborer for Brooks, who was executing the contract for laying the water-pipe. This was not an employment upon the road nor in connection with the track, and there was nothing in the service of decedent which implied any right or privilege to regard the track as a foot-way, and he had no more warrant than any others to travel up and down

upon it. But his employment and the theatre of his service may not be disregarded. They made him conversant with the locality, the character and frequency of trains, the necessity for incessant vigilance to avoid injury, and the fact that no one could venture upon the tracks and escape injury without the greatest circumspection. He knew it was dangerous to step upon it without the keenest watchfulness. The present case is therefore quite as strong to say the least as the other against the right of action. I think the judgment should be affirmed with costs.

The other justices concurred.

See note, 5 Am. and Eng. R. R. Cas., 504.

COLLINS, Adm'x, etc.,

v.

ST. PAUL AND S. C. R. Co.

(Advance Case, Minnesota. November 24, 1882.)

A., who was a track-repairer, was injured by a train running into a handcar, upon which he was returning home from work. The evidence showed that the head-light of the locomotive was not lighted. Held, that the negli gence was that of fellow-servants, and that the company was not liable.

APPEAL from order denying plaintiff's motion for a new trial, district court, county of Nobles.

Geo. W. Wilson and Emery Clark for appellant. E. C. Palmer and Daniel Rohrer, for respondent.

GILFILLAN, C. J.-The action is by plaintiff, as administratrix, to recover for an injury to her intestate, Cornelius Collins. He was a laborer employed by defendant in repairing its track, and at the time when hurt was, with others, going along on the track upon hand car after nightfall. A train coming along on the track ran upon the hand car and injured Collins so that he died. The complaint alleges that there was negligence in running the train; that

there was no light in front of the locomotive; and that it had not what is called a head-light. The negligent omission to provide a head-light (or lantern) upon the locomotive, it appearing that a head-light is necessary to the safe running of a train in the dark, -would have been the negligence of the defendant, as between it and its servants, for which it would have been liable to them for injuries caused by it. Drymala v. Thompson, 26 Minn. 40. There was, however, no evidence that there was not a head-light on the locomotive; on the contrary, the evidence was full and satisfactory that it had a head-light. There was evidence enough that it was not lighted at the time. That was due to the neglect of those in charge of the train,-fellow-servants of Collins,-for whose negligence the defendant would not be liable to him or his representatives. Foster v. Minn. Cent. Ry. Co., 14 Minn. 360.

The action was properly dismissed. Order affirmed.

See note, 5 Am. and Eng. R. R. Cas. 504.

S. N. SWEENEY

v.

THE CENTRAL PACIFIC R. R. Co.

(57 California Reports, 15. November Term, 1880.)

A servant voluntarily entering upon an employment, the dangers and hazards of which are known to him, must be held to have assumed the consequences of such risks. Held, accordingly, that the defendant was not liable for the death of an employee, resulting from a collision caused by its failure to provide fences along the line of its road, if the deceased knew of the want of fences.

Where a new trial is asked, on the ground that the verdict is against law, and, it appears that the jury must either have disregarded the law as given in the instructions of the Court, or else have found a fact wholly contrary to the evidence, the verdict is against law, and it is proper to grant a new trial on that ground.

APPEAL from an order granting a new trial, in the Fourteenth District Court, County of Placer. Reardan, J.

After the decision in Department, the appellant filed its petition that the appeal be reheard in banc, and the application was denied. C. A. Tuttle, and J. M. Fulweiler, for Appellants.

The Court left the question of Sweeney's knowledge of the existence of a fence to the jury. The jury, in effect, found that Sweeney did not know that the road was not fenced. The jury had no way of determining Sweeney's knowledge, except by an inference from his intelligence and habit of passing over the road. If the jury drew an improper inference from this testimony, it cannot be claimed that the verdict is against law; a verdict which is not justified by the evidence is not against law. Brumagim v. Bradshaw, 39 Cal. 24; Smith v. Christian, 47 id. 18.

Hale & Craig, for Respondent.

MYRICK, J.-Plaintiff's husband was engineer and conductor of a construction train of defendant, and as such had been for some time, and was at the time of the occurrence herein spoken of, running the train on the road of defendant between Newcastle and New England Mills. The train had taken a load of gravel up the road, and having unloaded, was backing down to Auburn, to there meet an up-bound freight train. The train reached a point near Clipper Gap, and was running at an increased rate of speed. Sweeney was in charge of the train, and was on the forward car, as backing down, the engine being at the other end. He had taken his position there to look out for danger. Just at the point where the occurrence took place, there is a curve in the road, and in rounding the curve, the leading car ran over two head of cattle, several cars and the engine were thrown from the track, and Sweeney was killed. At that point, the track was not fenced. The other facts necessary to the decision of this case are stated in the opinion of the Court below hereinafter copied. The jury rendered a verdict for the plaintiff for $20,000. Defendant moved for a new trial, which was granted; and plaintiff appealed. In granting the motion for a new trial, the Court below gave its reasons as follows:

"I am now of the opinion, that the motion for a nonsuit, made when the plaintiff rested in chief, should have been granted, as also the same motion, when it was renewed at the close of the whole case, for the following reasons, viz.: The second ground upon which the nonsuit was asked is: That it appears, from the testimony introduced by the plaintiff, that the deceased Sweeney had full knowledge of the fact that the road was not fenced at the point or near the point where the collision occurred, resulting in his death; and, having such full knowledge, he, by entering into and continuing in the employment of the defendant, took upon himself the risks and hazards necessarily incident to the service, and that this risk, which resulted in the collision, was necessarily incident to the employment.'

"From the testimony of the plaintiff's witnesses, and as the case stood when plaintiff rested, it would hardly be rational to deny that the deceased had known for months, indeed years, before the acci