Conroy vs. Chicago, St. Paul, Minneapolis & Omaha R. Co. of the distance from said tank to where the east gap had been opened. The plaintiff was standing at said place for about half or three quarters of an hour before the explosion occurred; having left the eastern gap and walked westward towards the burning oil tank. At the time of the explosion the flame from the burning tank ascended about 100 feet or more, and, as one witness said, there was nothing but fire in the sky. Just before the explosion the flames were burning quite high,-- from three to five feet,- right in the middle of the tank, and kept rising and going down. The plaintiff received his injuries from the burning oil, cast on him by the explosion. It was contended by the plaintiff that the defendant was guilty of negligence in not warning him of the danger to which he was exposed by said burning wreck, and in not providing a safe place, and in designating an unsafe one, for the plaintiff and other passengers to wait for the train designated to carry them eastward, and in not warning the plaintiff of the danger to which he was exposed at the place he was waiting, and in allowing him to leave said train and go to said place and there remain, and in allowing said train wreck to be and remain in a dangerous and unsafe condition. The defendant denied all allegations of negligence, and alleged and gave evidence tending to show that, by its officers and agents, it directed the plaintiff and other passengers to a place at the east gap, and eastward thereof, designated as a temporary station, to wait for the train to carry them eastward, which was a sufficient distance from the wreck to insure safety from any injury on account thereof, or the subsequent explosion. The plaintiff, in his complaint, alleged that the defendant directed the plaintiff to go around said. wreck to a point east and south thereof, and he accordingly walked around the same to a point on defendant's right of way, designed by the defendant as a temporary station, to wait for said train to carry said passengers eastward. Conroy vs. Chicago, St. Paul, Minneapolis & Omaha R. Co. A special verdict was taken. By this it was found, among other things, in substance, that the plaintiff understood that he was to wait with the other passengers at or near the east gap for the train to carry him on his journey; that, after passing "around through the gaps to a point at or near the east gap, the plaintiff unnecessarily, and from motives of curiosity and pleasure, went from there to a place much nearer the burning tank," but not "for the purpose of boarding the outgoing train or supposing that was the proper place to do so," and "that the plaintiff's injuries were caused by his so going nearer the burning tank," and that he "would not have been seriously injured if he had remained at or near the east gap;" further, that "a reasonable and prudent man, under the circumstances, situate as the plaintiff was and with his means of knowledge, would not have anticipated that there was danger of an explosion of the burning oil tank, or that it might explode, and that there was danger in being so near it when he was injured;" that he "was not guilty of any want of ordinary care that contributed to his injury," but that "the defendant's officers and agents, by the exercise of ordinary care and prudence, would have anticipated that the explosion might occur;" that they "did not exercise reasonable care and prudence in designating a safe place where the plaintiff and other passengers were to take the train east; " that they "were guilty of negligence, which was the proximate cause of the plaintiff's injuries, and did not give the plaintiff any warning whatever with respect to the danger to which he was exposed by virtue of the burning tank;" and, among other things, that "the defendant's officers, in the exercise of reasonable care, ought to have anticipated the plaintiff would leave the east gap, or near there, and go back nearer to the tank, and thus incur unnecessary danger; that the defendant, its officers or agents, knew, or, in the exercise of ordinary prudence should have known, of the plaintiff's position in time to warn him of the danger Conroy vs. Chicago, St. Paul, Minneapolis & Omaha R. Co. which threatened on account of the burning tank." The jury found the plaintiff's damages at $2,500. The defendant moved for judgment on the verdict in its favor, which was denied. It then moved to set aside the verdict and for a new trial on the grounds, among others, of error in the charge to the jury and in refusing instructions requested by the defendant's counsel, and that the verdict was adverse to, and not sustained by, the evidence; but the motion was denied, and judgment entered thereon against the defendant, from which it appealed. L. K. Luse, attorney, and Thomas Wilson, of counsel, for the appellant, argued, among other things, that the relation of carrier and passenger was severed by the plaintiff's voluntary departure from the temporary station. State v. Grand Trunk R. Co. 58 Me. 176; De Kay v. C., M. & St. P. R. Co. 41 Minn. 178; Finnegan v. C., St. P., M. & O. R. Co. 48 id. 378; Johnson v. B. & M. R. Co. 125 Mass. 75; Comm. v. B. & M. R. Co. 129 id. 500; Dodge v. Boston & B. S. S. Co. 148 id. 207; Toomey v. L., B. & S. C. R. Co. 3 C. B. (N. S.), 146; Siner v. G. W. R. Co. L. R. 3 Exch. 150; S. C. L. R. 4 Exch. 117; Bridges v. North London R. Co. L. R. 6 Q. B. 377; Railway Co. v. Cox, 60 Ark. 106; Louisville & N. R. Co. v. Ricketts, 96 Ky. 44; 1 Thomp. Neg. 459, and cases cited; Mich. Cent. R. Co. v. Coleman, 28 Mich. 440; Frost v. Grand Trunk R. Co. 10 Allen, 387; McDonald v. C. & N. W. R. Co. 26 Iowa, 124; Todd v. O. C. & F. R. R. Co. 3 Allen, 18; Railroad Co. v. Jones, 95 U. S. 439; Пarvey v. E. R. Co. 116 Mass. 269; Jewell v. C., St. P. & M. R. Co. 54 Wis. 610; Pittsburg & C. R. Co. v. McClurg, 56 Pa. St. 294; Torrey v. B. & A. R. Co. 147 Mass. 412; Baltimore & Y. Turnpike Road Co. v. Cason, 72 Md. 377; Dun v. S. & R. R. Co. 78 Va. 645; Bon v. Railway Passenger Asso. Co. 56 Iowa, 664, 667; Paterson v. Cent. R. & B. Co. 85 Ga. 653. For the respondent there was a brief by John W. Hancock, Edwin A. Jaggard, and Oscar A. Turner, and oral argument by Mr. Jaggard. Conroy vs. Chicago, St. Paul, Minneapolis & Omaha R. Co. The following opinion was filed March 16, 1897: PINNEY, J. The carrier owes to its passenger, while that relation exists, the duty of providing reasonably safe stations, whether permanent or temporary, where he may await the arrival of trains, as well as the duty to seasonably warn him, when reasonably necessary, of any existing or apprehended danger which may interfere with or imperil his personal safety. The defendant contends it performed towards the plaintiff the full measure of its duty, and that the proximate, or at least a contributing, cause of the plaintiff's injury was his own negligence in unnecessarily exposing himself to danger. The point to which the plaintiff and his fellow passengers were directed to go by the defendant's agents, and to which he went as a temporary station, as thus directed, to wait for the train which was to convey him and his fellow passengers eastward to their respective destinations, was the gap opened about sixteen rods east of the burning wreck, and at and east of which the mail, express matter, and baggage had been deposited. The wreck and remaining naphtha and the kerosene oil in the oil tank were burning fiercely, and flames were shooting from the joints in the oil tank or car, and flashed up to the height of many feet, making at times a loud, roaring noise. The gaps opened in the right of way fence, on the south side of the railway, by which a way had been opened around the burning wreck, diverged to the south, in order to avoid it. The details of the entire scene, about which there is no material dispute, were open and obvious, even to a casual observer, and gave clear and emphatic warning to the humblest intelligence of impending danger from the burning tank of oil. The situation spoke for itself, and in no uncertain tones. The plaintiff had nothing to do but to observe these facts as they appeared before him, and to consult his own safety. His actual transit as a passenger had been interrupted, and, until the train arrived from the east, he was free to go and Conroy vs. Chicago, St. Paul, Minneapolis & Omaha R. Co. come as he chose, and the company had no power to restrain him in the least. 1. Whether the company had performed its entire duty towards him, under the circumstances, or not, it was his duty to exercise ordinary care and caution to secure his own safety. The railway company was not an insurer of his personal safety, and it is familiar law that, under the circumstances stated, the duties of the plaintiff and of the defendant to observe proper care and caution are reciprocal. If the plaintiff failed to exercise ordinary care and caution, and by reason of such failure he sustained the injuries complained of, he was guilty of contributory negligence, and must be held to have assumed the consequent risk or danger of injury. Assumption of risk in such cases is a species of contributory negligence. Darcey v. Farmers' L. Co. 87 Wis. 249; Nadau v. White River L. Co. 76 Wis. 120, 131. The plaintiff was in the open country, and under no restraint. Whatever of danger there was in consequence of the alleged negligence of the defendant, he was free and able to avoid it. It is not a question of what he thought or believed would be safe and prudent, under the circumstances, for him to do. If he unnecessarily exposed himself to a danger, obvious to a person of ordinary care and prudence, and was injured in consequence, he cannot recover. He was an adult, and must be held bound to the exercise of the same care and prudence as a person of ordinary care, intelligence, and judg ment. The defendant, on the other hand, had a right to assume that the plaintiff would act with reasonable care and caution, and occupy the position or situation to which he had been conducted; and we are unable to perceive anything in the case to warrant the inference that the defendant had any reason to apprehend that the plaintiff would expose himself to or incur unnecessary danger. The actual transit of the plaintiff in the defendant's passenger train having been interrupted, its duty required that it should ex |