Harman

The plaintiff had been working as a carpenter in the employment of certain railroad contractors, who were *960 engaged in relining a tunnel on the defendant’s road. Oh being discharged from his work, the plaintiff took a push car belonging to the defendant, placed thereon his tool chest, blankets, and personal baggage, and, accompanied by another man, proceeded to push the car 'along the track of the defendant from the tunnel to Basin, a station where he expected to take a train in the direction of Butte. He claimed the right so to use the push car on the ground that the railroad track was the only available way to Basin, that if he took the county road he would have to wade a creek, he having no money with which to pay for a livery team, that the track from the tunnel to Basin was a general thoroughfare for employés on the tunnel work, and that the push car had regularly been used by them in carrying emergency supplies from Basin to the tunnel. While on his way, and while he and his companion were pushing the car around a curve, the plaintiff saw a train 400 or 500 feet ahead, approaching at a speed variously estimated by the witnesses at from 20 to 45 miles an hour. While he was…