1. Plaintiff was run over by a freight train of defendant. He testified that he was ordered by the conductor to go under the train to fix something that was dragging, and that while he was under the car for that purpose the conductor started the train without notice to him. This story is denied by the conductor. Some of the circumstances corroborate plaintiff. The evidence is sufficient to sustain the jury's finding that plaintiff's injury was caused by the negligence of the conductor.

Charge to jury.

2. An instruction that the violation of a penal statute, as to starting trains without signal, constituted a breach of duty owed by defendant to plaintiff, could not prejudice defendant where the employee on whom the statute imposes the duty of giving the signal is the engineer and the finding of the jury negatives negligence on the part of the engineer.

1 Reported in 148 N. W. 446.

127 M.-1.

3. There was no error in charging the jury that, unless plaintiff was injured while under the car fixing a broken brake rod, there is no evidence as to how the accident happened, nor in refusing to charge that if he was not under the car for that purpose the verdict must be for the defendant. There was no theory advanced on the trial that the accident happened in any other manner, and the conduct of all parties has conceded that at the time plaintiff was injured he was under the car for the purpose claimed by him.

Offer to prove custom.

4. An offer of evidence that on other roads it is customary for a trainman, before going under a train, to personally notify the engineer, was properly rejected since defendant's witnesses testified that personal notice to the engineer was not required on this division of defendant's road if the conductor was notified.

A train "on the road."

5. A train made up ready for travel, in charge of a road crew, overdue to start, and which has attempted to leave the station, but is unable to make a heavy grade without application of additional power, which, however, is right at hand, is a train "on the road" as distinguished from a train "standing in a yard."

Damages not excessive.

6. The damages awarded are not excessive.

Action in the district court for Ramsey county to recover $81,000 for personal injury received while in the employ of defendant. The answer denied that plaintiff was ordered by defendant or any of its agents to go under the train for the purpose of making any repairs, and denied that defendant or its agents had any notice of the fact that plaintiff was under the train and alleged that the accident was caused wholly by plaintiff's negligence in going under the train without taking any precaution to see that it was not moved while he was thereunder. The case was tried before Orr, J., who denied defendant's motion for a directed verdict, and a jury which returned a verdict for $39,000 in favor of plaintiff. From an order denying its motion for a new trial, defendant appealed. Affirmed. Butler & Mitchell, for appellant.

Henry Mahoney, Humphrey Barton and Walter D. Corrigan, for respondent.

HALLAM, J.

Plaintiff was a brakeman on one of defendant's trains. On the morning of October 16, 1912, he was run over and terribly injured. On the trial plaintiff had a verdict. Defendant appeals from an order denying its motion for a new trial.

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1. Defendant contends that the evidence is not sufficient to sustain the verdict. The facts are as follows: Plaintiff's crew was about to take a train of 70 cars from Amboy to Clinton, in Illinois. The train was made up and started slowly. The grade was heavy and the train stalled and backed up again, apparently to get a fresh start. Plaintiff's story is that, about the time the train commenced to back up he saw marks on the ground indicating that something was dragging; that the following conversation between himself and the conductor, Edward Burns, then occurred: "I said: "There is something dragging, Eddie.' He said: 'Now we'll back up, and I'll stand here and watch and point out to you the car that is dragging, and you hurry up and fix it and we'll wait until you get it fixed.' And we both gave a back-up signal * I stood and hung out the side of the caboose and watched Burns, and he was looking down at the cars, and he pointed and hollered and he said: "There it is on that B. & O.' and I hollered 'All right, I'll fix it.'” Plaintiff testified that when the train stopped he took a wrench, got under the car, found a brake rod broken, and proceeded to detach it. While he was so engaged the train started, upon signal from the conductor, without warning to plaintiff, and he was injured. The conductor denies the above conversation in toto. Plaintiff's case hangs on the truth of this story. The court in his charge so limited the issues. The charge reads as follows: "If you are satisfied

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that the conductor did give this

order and that in the exercise of reasonable care the brakeman did undertake to make these repairs or to go under the car, and that the conductor gave a signal (to start) without any information from the flagman * * or without knowing that he was in a place

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of safety, his act would be one of negligence," but that “if * he went there without being told by conductor Burns to do so and without notifying the conductor or the engineer of the fact that he

intended to do so, he would then be the cause of his own injuries and could not recover."

The question presents only an issue of fact, which the jury resolved in favor of the plaintiff. The evidence is sufficient to sustain the verdict. One of these men testified falsely. The jury could tell better than we which told the truth. Some circumstances tend to corroborate plaintiff. It is strange that plaintiff, an experienced railroad man, should have gone under this car in the manner he did if no conversation had occurred. It is a fact that after backing the train the conductor allowed it to remain standing for several minutes during which time he left the train and went to the roundhouse 1,000 feet away. Subsequent inspection discovered the fact that there was a "B. & O." car in the train with a broken rod. Its dragging would make a mark that could be seen, and it required immediate attention. The conductor reported to his employer two days later that plaintiff was injured while removing this brake rod, and that plaintiff could have prevented the accident by "having understanding with engine crew," and further reported that plaintiff "apparently thought he had time to get under car and remove rod." Considering the positive testimony of plaintiff and all the attendant circumstances, we must hold the evidence sufficient to sustain a verdict for the plaintiff.

2. Much stress is laid upon the fact that the court charged the jury in substance that the violation of a certain penal statute of Illinois constituted a breach of legal duty owed by defendant to plaintiff, and that it might be considered as bearing on the question of defendant's negligence. This statute reads as follows:

"STARTING TRAIN WITHOUT SIGNAL: If any engineer on any railroad shall start his train at any station or within any city, incorporated town or village, without ringing the bell or sounding the whistle a reasonable time before starting he shall forfeit a sum not less than $10.00 nor more than $100.00 to be recovered in an action of debt in the name of the People of the State of Illinois and such corporation shall also forfeit a like sum to be recovered in the same manner." (Hurd's Rev. St. [Ill.] 1913, c. 114, § 70). Defendant contends that this statute was intended for the pro

tection of the public, such as persons at crossings, and not for employees, and that the charge was erroneous. It is not necessary to determine whether the ruling of the court was correct because, if it was erroneous, the error was without prejudice. The statute, so far as it imposes a duty at all, imposes that duty on the engineer. It could have bearing only on the negligence of the engineer. Had the jury found the engineer negligent, then the question of the correctness of the court's construction of this statute would have been material. But the jury did not find the engineer negligent. In response to an instruction that if they found for the plaintiff, and that the accident was due to and caused by the negligence of a fellowservant or co-employee or employees, "you must name in your verdict the fellow-servant or servants of the plaintiff whose negligence caused the accident." The jury returned this verdict: "Employee found to be negligent, E. F. Burns, conductor." This is tantamount to a finding that the engineer was not negligent and it renders immaterial any instruction which pertained only to the negligence of the engineer.

3. Defendant assigns as error the charge of the court that the contention of plaintiff that he was injured while under the car fixing a broken brake rod "is the only contention as to how this accident happened, and unless it happened under those conditions, there is no evidence as to how it may have happened," and in refusing to charge: "If you believe from the evidence that at the time of the accident the plaintiff was not in fact under the cars for the purpose of fixing the broken brake rod, your verdict must be for the defendant." Defendant's contention is: "There is abundant circumstantial evidence that he may not have gone under the cars at all to fix the brake rod;" that it is more probable that plaintiff must have started between the cars and accidentally fallen between them. We agree with the trial court that if the accident did not happen while plaintiff was under the car fixing the brake rod, the record presents no evidence as to how it did happen. No witness suggests any other theory. More than this, the conduct of all parties from start to finish concedes the fact that plaintiff was injured while under this car for the purpose mentioned. The conductor, who knew