after the foregoing statement of the facts, delivered the opinion of the court.

We assume that the question of the negligence of the operators of train No. 23 was properly submitted to the jury, .and that its verdict is conclusive upon that subject. The refusal of the court to direct a verdict for the defendant below, and upon which error is here assigned, presents the question whether, as matter of law, the deceased was guilty of negligence directly contributing to his death. If the evidence upon that question is conflicting, its determination falls within the province of the jury, and we are concluded by the verdict; but where the facts are undisputed, or clearly preponderant, they are questions of law for the court. Southern Pac. Co. v. Pool, 160 U. S. 438, 16 Sup. Ct. 338, 40 L. Ed. 485. If McNulty was informed that train No. 23 Avould back upon the siding, it was sheer recklessness to place himself in the position of peril to which he was necessarily subjected. If he was not so informed, lie had no right to assume, if he gave any thought to the subject, that it would not back upon the siding, and had no right to place himself in a dangerous position without warning to any one, and without setting the air brakes, either of which acts would have rendered his person reasonably secure. The rule of the company with respect (o inspectors is not, in a strict sense, applicable here; but, if applicable, it would only declare a duty which the law imposes, — that proper precautions under such circumstances should be taken. Placing himself in a position of great danger with a train near him which he knew must come upon the siding in order to allow the passenger train, upon its arrival, to move westward, he had no right to assume that it would not enter upon the siding, and possibly come in contact with his train, until the arrival of the passenger train; for, as an experienced locomotive engineer, he knew, as all trainmen know, that the actions of those in charge of trains are governed by desire to save all time possible. He was bound to know that it might come in upon that *866siding in advance of the arrival of the passenger train, that it might come in contact with the rear end of his train, and in the exercise of the most ordinary care he should have provided against such contingency .either by notice to the trainmen, or by the simple movement of setting the air brakes upon his own train. If it was manifest that a blow such as came would drive McNulty’s engine» upon or so near to the main track as to endanger the expected passenger train, that was only an additional reason why he should have taken every reasonable precaution against such a movement of his engine. There was in that situation nothing equivalent to a signal to the crew of the other freight train unless they knew of the danger involved. There is no evidence that they possessed such knowledge, and, if the air brakes had been set, such danger could not have arisen. We think that no argument could add force to the undisputed facts, which disclose incontestably the negligent omission upon the part of McNulty, clearly contributing to his tragic death. In Southern Pac. Co. v. Pool, 160 U. S. 438, 16 Sup. Ct. 338, 40 L. Ed. 485, Pool, a car repairer, went under the last car of a train of 18 or 20 cars, due to leave in a short time, and the car was detached from the train. One Rice was on the watch for any coming car or engine. As an engine backed, Rice called to Kilpatrick, a switchman, to stop the train, and it did so within about six feet of the car. Kilpatrick immediately gave the signal to back again, which signal was obeyed, the caboose striking the car with considerable force. In the meanwhile, Pool, who presumably had gotten out from under the car, went back to his work. His companion saw Kilpatrick’s signal to back down, and cried out to Pool, who was unable to extricate himself, and was caught and injured. The court held that the injury to Pool was the result of his own inexcusable negligence in going under the car without giving-proper signal of, his position, and in remaining there in the presence of impending danger. In Hulien v. Railway Co. (Wis.) 82 N. W. 710, the ease is on all fours with the one we are considering. There, as here, the locomotive engineer went under the engine to perform some duty, while another freight train had backed upon the same track, and its engine was detached, and was switching upon another track. There, as here, the deceased failed to set the brakes upon his engine or upon the train, and failed to notify any of the train crew that he was under the engine, and did not display any signal of warning. In each of these cases the court ruled that, as matter of law, the deceased was guilty of negligence preventing recovery. We are unable to distinguish the case in hand from the authorities cited, and are constrained to the conviction that the court below should have directed a verdict for the defendant upon the undisputed facts of the case.

(dissenting). I am constrained to dissent. The facts in this case do not result, in my judgment, in fixing upon McNulty such contributory negligence as will prevent his recovery.

' It should be noted, before proceeding to the reasons for this dissent, that it was a fairly disputed question of fad; whether the con*867ductor of train No. 23 notified McNulty that he intended to back in or not. The conductor so testified, but McNulty’s fireman, who was within hearing distance, and says he heard all that was said, testifies to the contrary. Other witnesses fairly support him, and the conductor’s testimony is impeached, by contrary declarations made by him prior to the trial. On this review I think we must assume that the jury found that no such notice was given to McNulty, and was supported in that finding by a sufficient weight of evidence.

The law, in assigning to each individual the proper measure of his carefulness,. recognizes the activities of life, not as, ideally, they should be, but as actually they are. It recognizes that on all sides, in the relation of men toward each other, there is shortsightedness, and often negligence; and it requires each to bear this in mind, and to'take reasonable precaution against its consequences. No one is exempt from a judgment of self negligence, simply by having acted upon the assumption that others will not act negligently. There are situations where the usual- carelessness of others is such that it ought to become a part of one’s habitual expectation.

Southern Pac. Co. v. Pool, 160 U. S. 438, 16 Sup. Ct. 338, 40 L. Ed. 485, is illustrative. Pool’s duty was repair work on cars, both in the shop, and on the tracks in the yard. On the occasion of the injury he was under a car, belonging to a train of eighteen or twenty cars, standing on one of the six or seven tracks, upon which there was a frequent moving to and fro of trains, and a constant switching of cars backward and forward. There was no flag, or other signal, indicating his presence under the car, nor had the engineer any knowledge of his peril. The court held that, under these circumstances, Pool was inexcusably negligent. He had no right to assume that there would be no switching of cars — a thing to be expected — and, in consequence, no collision with the car under which he lay. A bumping together of cars in this way is one of the every day occurrences in a railroad yard.

Hulien v. Railway Co. (Wis.) 82 N. W. 710, is another illustration. Hulien, the victim of the accident, was the engineer of freight train No. 43 which, having arrived at Wittenberg, pulled in upon the passing track. Shortly afterwards freight train No. 50, arriving from the opposite direction, and passing down on the main track, backed in upon the passing track, stopping its caboose within two or three cars’ length from the rear end of Hulien’s train. The engine of No. 50, with several cars that had been detached, became engaged for a time in switching upon another track. In the mean time the passenger train, for which both trains were waiting, came and left.

Soon after the arrival of train No. 50 Hulien went under his engine to make some repairs. No brakes were set upon the engine, nor upon the train; nor was any notice given to Hulien’s train crew, or to the crew of No. 50; nor was any signal placed at the rear of Hulien’s train.

The passenger train having gone, the engine of No. 50 backed in again to take on its train of cars, and in doing so forced its own caboose against the caboose of Hulien’s train, impelling it forward, *868and . causing the locomotive to run over the engineer, who was still under the engine. .

.It will, he noted that the injury took place after the passenger train had left, and when, under all usual conditions, the engine of train No. 50 might be expected to couple upon the detached cars. The engineer, remaining under the engine in the face of such probabilities, is not guiltless of negligence. He ought, as a part of the usual course of events, to have expected that No. 50 would back in; and, perhaps, had no right to assume, that its momentum would be so nicely balanced, that no bumping would occur.

But while the law thus requires precaution against the foreseeable carelessness of others, it does not visit the penalties of negligence upon one who, having no reason, either in the usual course of events, or the particular circumstances of the occasion, to apprehend danger, has acted as if no danger impended. It may be carelessness to lack foresight against what, when it occurs, would not be regarded .as1 unusual; but certainly .not to lack foresight against that, which, when it occurs, comes, in the nature of things, as a complete surprise. An engineer, for instance, who sees a person walking on the track far ahead of the train is not guilty of negligence in supposing that he will get out of the way before the train reaches him. Beach, Contrib. Neg. § 38, and cases cited. One is not required to be so far seeing that nothing will surprise him. Now let us apply these distinctions to the case under review.

McNulty’s engine stood as near the east end of the passing switch as would give it clearance from the incoming passenger train. The siding was too short to accommodate both freight trains at once; indeed, it could accommodate but a few cars more than McNulty’s train. It was manifest that before the passenger train could obtain a right of way westward from the station, McNulty’s train must have pulled out, so as to allow the other freight train to back in. The passenger train would, upon arrival, be blocked until McNulty had pulled out. It was manifest, also, that a blow on the rear, such as came, would drive McNulty’s engine upon the main track; and as the passenger train was momentarily expected, might cause a collision of McNulty’s engine with the incoming passenger train. I cannot escape the conviction that the incoming passenger train — momentarily expected, — with McNulty’s engine carefully balanced in the clearance, was, to the crew of the other freight train, a physical situation more impressive than any signal or word of danger. Is the recklessness of the other crew that, in the face of such a danger to the passenger train, drove McNulty’s engine forward, to be regarded as anything less than criminal? Is McNulty to be held to an expectation — or a suspicion — of that kind of recklessness on the part of the other crew? What use of a flag, or of verbal notice, to men whom such a situation, filled with such danger, would not deter?

The case under review is, in this respect, different from Southern Pac. Co. v. Pool, and Hulien v. Railway Co. In the. Pool and Hulien Cases the law imposed a duty to take precaution against the carelessness of others, for the carelessness there complained of was *869within the reasonable apprehension of the person injured. Beach, Contrib. Neg. § 38 and cases cited in note. Tn the McNulty Case there was no such duty, for there could reasonably be no such apprehension. The cases fall on opposite sides of the line that marks the boundary between one’s duty to look out for such negligence as may, without unusualness, attend the conduct of others, and one’s exemption from duty to look out for what, in the natural order of event's, is not to be thought of.

The judgment is reversed and the cause remanded with directions to the court below to award a new trial.