The refusal of the court to direct a verdict for defendant on the ground that the evidence failed to show any negligence on its part, and on the further ground that it showed contributory negligence as a matter of law, is assigned as error. It is established by the evidence that the whirly had a couple of large gear wheels that moved and made a loud grinding noise different from any other noise *602when it was moving from place to place; that' it started very slowly and never reached a speed of more than fonr miles an hour. For these reasons it is urged there was no necessity for promulgating rules for signals before starting, nor for giving any, since the noise made by the whirly when moving was a sufficient signal. The jury negatived both contentions by finding that defendant was negligent in failing to promulgate rules requiring the giving of a signal before' moving the whirly, and inferentially found the engineer guilty of negligence by finding that his failure to give a signal was a proximate cause of plaintiff’s injury. The situation and the evidence is such as to warrant both findings. A number of separate crews were working in and about the coal dock in addition tb the crew directly engaged in loading the cars. That the whirly when in motion was not only able but likely to inflict severe injuries upon any one inadvertently caught by it or in its path, is self-evident. The engine was supplied with a whistle, affording an efficient means of giving a signal before starting. Plaintiff’s crew, or part of it at least, including plaintiff, were, in the operation of loading cars, required to work in close proximity to the whirly. The jury might well come to the conclusion that under such circumstances a signal af ter starting and while in motion would not be adequate protection to those who worked about it, though such a signal might meet the requirements as to loudness and as to what it indicated. It is true the plaintiff must have been about twenty feet from the whirly when it started to move, but it is also a verity in the case that he neither saw nor heard it before it was upon him. He so testifies and such must be the fact, for no one can assume that he voluntarily subjected himself to imminent serious injury or death. The situation disclosed was therefore one in which the jury might well say that rules requiring a signal to be given before starting the whirly should have been promulgated by the defendant.

When the engineer started up the whirly to go to the other *603end of the dock for water the crew had about half loaded a car. The evidence shows that it was not customary for the whirly to move on its own track while loading a car. Owing to the projection of the platform the engineer could not see the ground in the direction he moved the whirly for a distance of some thirty or forty feet. He knew that at least three men belonging to the crew were near the car and near the whirly. He also had reason to believe that they had no cause for anticipating that the whirly would be moved before the loading of the car was completed and yet he started it without blowing his whistle, as he might easily have done. Such conduct sustains a finding of negligence. And since the employer had four or more men in a common employment and the injury happened after the enactment of the law of 1911 (sub. 1, (2), sec. 2394 — 1, Stats.) the defendant was responsible for the negligence of the engineer.

If it had been the custom to move the whirly on its own track often and at irregular intervals without regard to the work that was being done with it, and the plaintiff had known such a custom, a strong case of contributory negligence would have heen presented — perhaps so strong as not to sustain a finding to the contrary. But here we have a case where plaintiff had no reason to believe that the whirly would be moved at least until the car being loaded was finished. One car that morning had been insecurely blocked and had slipped. Plaintiff was intent upon watching this car so that it would not slip and cause trouble. He had a block ready, and as it was convenient for him he sat down on the whirly track just opposite the car wheel, which he says was a good position for him to watch the car. Concede that he might have placed himself in a safe place somewhere else. The position he took cannot as a matter of law be said to be a negligent one in view of the fact that he had no reason to suppose the whirly would be moved until the car was loaded, if then.

By the Court. — Judgment affirmed.