ing cars. The rule of the defendant--with which plaintiff was familiar-required all switch stands of this height to be placed not less than six feet distant from the track. Where a switch stand was required to be erected within less than six feet of the track, a low pattern was used. This switch stand had been in use for two years prior to plaintiff's injury. .Defendant's road- master had notified the proper division superintendent, long prior to the injury to plaintiff, that this switch stand was too high and dangerous. Immediately after the injury to plaintiff was removed, and the low pattern substituted.
There was a general verdict for plaintiff. The facts as recited are either uncontradicted, supported by such evidence that the jury might fairly find them to exist. There was a motion to take the case from the jury at the close of plaintiff's testimony and repeated when the testimony was all in; but as the same points are preserved and presented under the exceptions to the instructions, and to the refusal of the court to give certain instructions asked, the motion need not be specially noticed. The negligence of defendant would seem to be established too clearly to be seriously questioned. The learned counsel for defendant contend, however, that the facts do not establish any negligence of which this plaintiff can take advantage; that the defendant had the unrestricted right to erect structures on its right of way where and when it pleased, subject only to liabilities for such injuries as might be caused by such structures to employes while engaged in their proper sphere of duty, and to passengers while riding in their proper place in the cars. As a general proposition the contention is correct. Whether at the time of the injury plaintiff be regarded as a passenger or an employe, we think he was lawfully upon the train; that he was not a trespasser. But as the case has been submitted to us on the theory that his rights were only those of an employe, and the duty and liability of the defendant to him were only such as it owed to its employes, and as that view is the more favorable to the defendant, we will accept it, in passing upon the case. The plaintiff was, then, lawfully on the train, in obedience to the orders of his foreman. He had no duty to perform on the train except to ride in such
