Page:North Dakota Reports (vol. 3).pdf/135

 in not knowing that there was danger of his being injured in making the coupling should he remain on the footboard; nor is there any evidence that he would have been hurt had there been no undue play to the drawbar of the car. The jury might, under the evidence, have found that this drawbar projected 12 inches beyond the end of the car; that the plaintiff was justified in assuming that only a little of the slack would be taken up in view of the very slow approach of the engine to the car; and it is undisputed that the drawbar of the engine projected at least 6 inches beyond the 2-inch rim around the rear end of the engine, and that there was no slack in this drawbar which could be taken up. This would have left a standing place of about 16 inches, assuming that the spring of the drawbar of the car yielded two inches. This would have afforded plaintiff ample space in which to stand with safety, under the evidence on this record. It is true that plaintiff was bound to know that this space would be diminished somewhat by reason of his being on the inside of the curve, but there is no evidence in this case showing the extent of the curve, or how much closer together the ends of the car and engine would come on the inside than on the outside of the curve. The curve may have been so slight as to make the difference barely appreciable, especially at the point where plaintiff must have stood, quite near the center, in order to secure the pin, and drop it into the opening in the drawhead of the car.

Whether plaintiff ought to have gone ahead and set the pin, and stepped to one side before the engine and car came together, is also a question for the jury. Negligence and contributory negligence are generally matters of fact, and we think that in this case, under the present record, they should have been both sub- mitted to the jury, under proper instructions. Radical changes in testimony excite more or less suspicion, but it is not for this court to say whether the plaintiff swore falsely on the second trial; nor was it the province of the trial court to settle this matter of fact either for or against the plaintiff. The judgment is reversed, and a new trial ordered. All concur.

(54 N. W. Rep. 315.)