c33:No. 156

ROGERS, Circuit Judge
(dissenting). I am unable to concur. The plaintiff below was in my opinion clearly guilty of contributory negligence. He was injured in the yards of the New York Central Railroad at Buffalo where he had been employed 21 years. This yar.d was a very busy place. The towerman who had control of the movements of the trains in the yard estimated the number of trains moving over the cross-over in that yard as 1,600 in the course of eight hours. The plaintiff was asked: “You have got to be on the alert every moment of the time for any engine?” To which he answered: “All the time, and be on the alert for other people besides—there is a lot there for you to look after. It is a very dangerous place there if a man is working there.” He was asked: “Engines are coming and going hither and yonder so that it seems like perfect pandemonium unless you are used to it, that is true?” And he answered, “Yes.” Asked: “And" the only safe way for a man to get along there is to watch out continuously if he is on a track?” He answered: “When you- are working, watch out, and watch out for other people, too.”
Notwithstanding all this the plaintiff, experienced man that he was, deliberately stood on the main, track for a minute and a half at least talking with an assistant yardmaster and knowing that a train which stood waiting to go west might come over the very track on which he stood if the towerman should so determine it, and yet he stood there with his back to the east and was struck. In my opinion he was as matter of law negligent and his negligence contributed to his injury. Both the engineman and fireman testified that their view of the track in front of the engine was cut off for some distance by tire boiler_ of the engine. The engineman said his vision was cut off for about 65 or 70 feet by the boiler. The engineman and fireman each testified that the bell was ringing all the time. The speed of the train was only 6 or 8 miles per hour. If those in the engine had seen the plaintiff on the track 65 or 70 feet away and tiren lost view of him because of the obstruction of their vision, it does not follow that they had no right to assume that the plaintiff would get off tire track and not remain standing directly in front of the approaching engine.
The fireman testified that just as they were turning from track 3 into the cross-over he saw two men 200 feet or better ahead of the engine, and that when he last saw them they were 100 feet or more ahead of the engine, and that they passed from his view in front of the engine so that the boiler cut off his view; they were moving at right angles to the engine, or, in other words, were moving across the track in front of it; that at the time he last saw them they had commenced to turn into track 1,- and that he did not see them again. The engineman testified that as he proceeded down tire cross-over he was looking straight ahead of the engine along the track,' and of course he did not know whether the engine was to proceed straight ahead into the Ohio street branch or turn in on track 1 until he struck the switch points and the engine commenced to1 turn; that he did not see the plaintiff any time until after the accident. The engineman was operating his engine in a very busy place, and was obliged to look for signals regulating the movement of his train.
The contributory negligence of the plaintiff prevents a recovery unless his injury resulted from the willful, wanton, or reckless conduct of the defendant. To constitute a willful injury the act must have been intentional, or the act or omission which produced it must have been committed under such circumstances as .evinced reckless disregard of the safety of others, as by failure after discovering the danger tp exercise ordinary care to prevent impending injury. 29 Cyc. 509.
The distinction is this: That if one who is in the exercise of ordinary care is injured by one who is not in the exercise of ordinary care the latter is liable; but if one who is not in the exercise of ordinary care is injured by one who acts willfully or wantonly the latter is liable, notwithstanding the contributory negligence of the injured party. In one case a mere lack of ordinary care makes the wrongdoer liable. In the other case no liability exists unless the conduct complained of was committed in wanton and reckless disregard of consequences. It is such conduct, if it results in the death of the injured person, as would make the wrongdoer guilty of manslaughter. See Banks v. Braman, 188 Mass. 367, 369, 74 N. E. 594. It was this, I think, that the Supreme Court had in mind in Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270 (1891), when it held that the contributory negligence of a plaintiff would not prevent him from recovery, if the defendant might by the exercise of reasonable care and prudence have avoided the consequences of the plaintiffs negligence.
The difference between the two kinds of liability, ordinary negligence, creating liability in the absence of contributory negligence, and willful, wanton, and reckless conduct, creating liability notwithstanding the plaintiff’s contributory negligence, was not called to the attention oí the jury in the charge as originally given. Indeed, the court charged the jury, “If the plaintiff was negligent, and you iind from the evidence that this negligence contributed to the accident, he cannot recover, no matter how negligent the defendant was.” The court afterwards on the request of counsel, however, charged that plaintiff's contributory negligence would not exonerate the defendant, if it were shown that defendant could by the exercise of reasonable care and prudence have avoided the consequences of its conduct.
If the court had instructed the jury that the plaintiff was as a matter of law guilty of contributory negligence, and that the question for it was to determine whether the defendant’s conduct was willful, wanton, or reckless, atid if they so found that they should bring in a verdict for the plaintiff and determine the amount of the damages, no error of law would have been committed. But, having submitted to the jury the question of contributory negligence, this court cannot know that the jury reached its verdict because it found that the plaintiff was not guilty of contributory negligence, and therefore the defendant was liable because oí its failure to exercise ordinary care, or whether it found that the plaintiff was guilty of contributory negligence, but that defendant was guilty of willful, wanton, and reckless conduct.
I therefore am of the opinion that the judgment should be reversed.

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