exercise of reasonable care to provide a safe place for work of servants. In general, a railroad has the right to construct its own road, to solve its own engineering problems in accordance with its own views, and, more specifically, to determine what structures it will erect and at what places. It by no means follows that it may disregard rules of law for the protection of the public, passengers, or employees. If on a track, over bridges, and through tunnels, on a scale current in early railroading, it were attempted to run modern trains, disaster would be as inevitable as liability would be certain. The fact that a platform in existence for half a century had proven safe and satisfactory has no tendency whatever to show that it would be safe one moment after a material change had occurred in conditions. If, in the case at bar, the car had been a few inches wider, and had crashed into the platform and injured the switching crew and freight handlers on the platform, in the absence of contributory negligence or assumption of risk, a case of actionable negligence would have been clearly made out. The proximity of the platform to the track may, as a matter of law, be negligent or careful, or the negligence of its erection may be a question of fact, according to the circumstances of each particular case. This case involved no engineering problem of technical character. As Judge Hammond said in 112 Fed. 888, 50 С. С. А. 591, approved in Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 67, 24 Sup. Ct. 24, 25, 48 L. Ed. 96: "It [the matter of erecting a waterspout so as to provide a safe clearance] is so simple a task, one so devoid of all exigencies of expense, necessity, or convenience, so free of any consideration of skill except that of the foot rule, and so entirely destitute of any element of choice or selection, that not to make such a construction safe for the brakeman on the trains is a conviction of negligence." And see 4 Thompson, Neg. § 4315. The authorities subsequently considered in connection with assumption of risk and contributory negligence fully sustain this view. It is to be immediately noted that Tuttle v. Detroit, G. H. & M. Ry. Co., supra, was called to the attention of the supreme court in argument in Texas & Pac. Ry. Co. v. Swearingen, 196 U. S. 51, 25 Sup. Ct. 164, 49 L. Ed. 382. A conclusion consistent with plaintiff's right to recover here was none the less reached.

(b) Defendants insist that the hazard to which he was exposed was ordinary. The distinction between ordinary and extraordinary hazards is familiar, the ideas are simple, and the terms self-explanatory. It would avail nothing to enlarge upon them here. It is obvious that the proximity of the obstruction to the car would constitute an ordinary or an extraordinary hazard, as a matter of law or as a question of fact, according to the circumstances of each particular case. It would be stultification to hold here as a matter of law that a clearance distance of only six and one half inches between the platform and the ladder of the car on which a minor employee, without warning, was riding, pursuant to the direction of his conductor, was an ordinary hazard. The trial court was justified in submitting the matter to the jury.

2. The second question on the merits is whether as a matter of law plaintiff was guilty of contributory negligence, or assumed the risk, because he knew, or ought to have known of the hazard of the platform and to have apprehended its danger. There was testimony, defendant insists, that plaintiff had frequently been in position in which he had a clear and unobstructed view of that platform, and that on the very night on which he was hurt he was in position for observation, and he could by use of his lantern easily have seen the platform in question. Plaintiff's trip should have been one of continual and industrious discovery. He made it one of industrious blindness and indifference. Accordingly he should not be allowed to recover, even if his exposed position brought him unusually near the platform. McLeod v. New York, 191 Mass. 389, 77 N. E. 715, 114 Am. St. 628. And see Sisco v. Lehigh, 145 N. Y. 296, 39 N. E. 958; Chicago v. Clark, 108 Ill. 113.

The Michigan rule is quite clear that obstructions abutting side tracks "are usually necessary for the conduct of railroad business, and in making up trains brakemen and switchmen must be on the lookout for them. While, where they abut on the main track, and not in yards where trains are usually made up, servants of railroads may expect that such obstacles will not be placed in so close proximity to the track as to make them dangerous." See Pahlan v. Detroit, 122 Mich. 232, 81 N. W. 103; Phelps v. Chicago, 122 Mich. 171, 178, 81 N. W. 101, 84 N. W. 66. The Michigan cases have been criticised as involving "a wire-drawn differentiation" (1 Labatt, Master & Servant, footnote, p. 151), and have been regarded as requiring the "limit of excessive diligence and caution" on the servant's part (5 Thompson, Neg. § 5561).

The theory of the trial court in submitting both questions to the jury was clearly in accord with the opinions of the supreme court of the United States. In Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96, a brakeman was killed as a result of being struck by an iron spout. Mr. Justice Day said (at page 68 of 191 U. S., page 25 of 24 Sup. Ct. [48 L. Ed. 96]): "The servant has the right to assume that the master has used due diligence to provide suitable appliances in the operation of his business, and he does not assume the risk of the employer's negligence in performing such duties. The employee is not obliged to pass judgment upon the employer's methods of transacting his business, but may assume that reasonable care will be used in furnishing the appliances necessary for its operation. The charge of the court upon the assumption of risk was more favorable to the plaintiff in error than the law required, as it exonerated the railroad company from fault if, in the exercise of ordinary care, McDade might have discovered the danger. Upon this question the true test is, not in the exercise of care to discover dangers, but whether the defect is known or plainly observable by the employee. Texas & Pacific Ry. Co. v. Archibald, 170 U. S. 665."

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In Texas & Pac. Ry. Co. v. Swearingen, 196 U. S. 51, 25 Sup. Ct. 164, 49 L. Ed. 382, a state of facts curiously similar to those presented on this appeal was presented. Plaintiff, a switchman, was injured by striking a scale box alleged to have been in dangerous proximity to the switch track down which plaintiff was riding on the ladder of a box car. He was looking for a signal from his superior, and had a lantern, substantially as here. The tracks and scale were "standard," with a space of less than two feet for the movement of a switchman between the side of a car and the scale box. Plaintiff knew the proximity of the scale box to the switch track, but did not closely inspect it or take measurements of the situation. Mr. Justice White said, inter alia, "that the dangerous contiguity of the scale box to track No. 2 and the extra hazard to switchmen therefrom was not so open and obvious on other than a close inspection as to justify taking from the jury the determination of the question whether there had been an assumption of the risk. The plaintiff was entitled to assume that the defendant company had used due care to provide a reasonably safe. place for the doing by him of the work for which he had been employed, and, as the fact that the defendant company might not have performed such duty in respect to the scale box in question was not so patent as to be readily observable, the court could not declare, in view of the testimony of the plaintiff as to his actual want of knowledge of the danger, that he had assumed the hazard incident to the actual situation. * Knowledge of the increased hazard resulting from the dangerous proximity of the scale box to the north rail of track No. 2 could not be imputed to the plaintiff simply because he was aware of the existence and general location of the scale box. It was for the jury to determine, from a consideration of all the facts and circumstances in evidence, whether plaintiff had actual knowledge of the danger."

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The general rule throughout the states accords with these opinions. Many of them will be found well arranged in 31 Am. & Eng. Ry. Cas. (N. S.) 548, note. And see Louisville v. Hall, 115 Ky. 567, 74 S. W. 280. The rule in this state accords. Flanders v. Chicago, St. P., M. & O. Ry. Co., 51 Minn. 193, 53 N. W. 544; Johnson v. St. Paul, M. & M. Ry. Co., 43 Minn. 53, 44 N. W. 884; Robel v. Chicago, M. & St. P. Ry. Co., 35 Minn. 84, 27 N. W. 305; Campbell v. Railway Transfer Co., 95 Minn. 375, 104 N. W. 547. Chief Justice Ryan, in Dorsey v. Phillips, 42 Wis. 583, with characteristic clearness and force stated the reason for this rule: "The safety of railroad trains depends largely upon the exclusive attention of those operating them to the track and to the trains themselves. It is not for the interest of railroad companies, or of the public with like, if not equal, concern in the safety of trains that persons so employed should be charged with any duty or necessity to divert their attention. And it appears to us very doubtful whether persons operating railroad trains, and passing adjacent objects in rapid motion, with their attention fixed upon their duties, ought, without express proof of knowledge, to be charged with notice of the precise relation of such objects to the track. And, even with actual notice of the dangerous proximity of adjacent objects, it may well be doubted whether it would be reasonable to expect them, while engaged in their duties, to retain constantly in their minds an accurate profile of the route of their employment and of collateral places and things, so as to be always chargeable, as well by night as by day, with notice of the precise relation of the train to adjacent objects. In the case of objects so near the track as to be possibly dangerous, such a course might well divert their attention from their duty on the train to their own safety in performing it." This view of the law accords better with the opinions of the supreme court of the United States, supra, delivered in 1903 and 1904, respectively, than the later and more or less inconsistent decisions of the supreme court of Wisconsin. See Pahlan v. Detroit, 122 Mich. 232, 81 N. W. 104, and Scidmore v. Milwaukee, 89 Wis. 188, 61 N. W. 765 (rendered, respectively, in 1899 and 1894).

The application of these principles to the case at bar permits no doubt that the instructions of the trial court were as favorable to the defendants as could reasonably have been. The court fully and fairly charged that the plaintiff assumed the ordinary, but not the extraordinary, hazards and risks of his employment; that if an order was given, and the plaintiff had knowledge or notice that to execute the order would expose him to unusual or extraordinary danger, he would assume the risk and danger incident thereto, and he might not recover for injuries so sustained. Plaintiff denied actual knowledge. It must be assumed that the jury believed him. Within the views thus expressed, the court was clearly right in submitting to the jury the question of notice to him. Plaintiff, a minor, had had no experience in this line of duty, except two months' service as a freight brakeman. He had passed by and had stopped at Lyle only four or six times. For part of this time he had been on this branch of the road, and claimed that his "work had been performed in another part of the yard." He had a right, in the performance of his duties, which occupied his attention in giving and receiving signals, watching the loading and unloading of freight at depots, and the like, to assume, especially in view of the direction of his superior officer, that the master had not been guilty of negligence, and was not required by law to make a detailed and exact study of the facilities his master had provided.