Baecht

The plaintiff and the intervener in an action for personal injuries appealed from a judgment of nonsuit, upon the ground that under the doctrine of last clear chance a question of fact within the exclusive province of the jury was presented.

The defendant and respondent operated small construction trains in a switch-yard of the intervener railway company, upon several easterly and westerly lines of track, as an independent contractor. The plaintiff was a welder of steel rails installed in said company’s tracks, as an employee of the latter. He had completed the inspection of his previous work upon one line by looking in between the cars of a train then standing thereon, and had started in a slightly northeasterly direction, about to step on to a near-by parallel track, when he heard a shout of warning from the defendant’s superintendent whom he had just left, and was immediately struck by a train of repair-cars which came from the west. In his action against the contracting corporation it was alleged that the defendant so negligently operated its engine that it ran into and collided with his person, resulting in his permanent injury. The defendant joined issue, alleging that the…