This is an action for personal injuries. The plaintiff was engineer of the defendant’s yard locomotive, his duty consisting in operating the engine and in shifting empty and loaded cars on the tracks and switches in said yard. He had been so employed for three years at the time of the injury complained of. At the time of the injury he was not on his engine, but was some distance away, sitting under a “loading dock.” A fellow-servant named Cobb was rolling and pushing a heavy piece of timber for the purpose of shoving it over the dock, just above the plaintiff’s head. He testifies that he looked over the dock, and, not seeing any one, he slided the piece of timber over, and just‘ then he saw a foot sticking out from below, but it was too late to stop the timber. It was a piece 4 by 10 inches and 14_feet long, of green oak. He testifies that the plaintiff told him that afternoon that he didn’t blame him; that if he (plaintiff) had attended to his work and let liquor alone *471be would not bave gotten burt; tbat be went up there to take a drink of liquor witb another man, but seeing the superintendent coming along, be went up through the mill under the loading-dock and sat down until the superintendent passed. The superintendent testifies tbat be saw the plaintiff there just before be was burt, and asked him what be was under the do.ck for, and told plaintiff to go immediately and get a certain car witb bis engine; tbat the plaintiff at tbat time was 125 feet from where bis engine was, but be did not pay any attention to the order. The plaintiff told him after the injury tbat be bad gone under there to get a drink of whiskey, and tbat the “whiskey was. to blame for the accident.” It was against the rules of the company for any employees to drink on the premises during work hours. Witness bad never seen Buchanan, or any one else before, resting under tbat dock.
The court charged on the second issue as to contributory negligence tbat “The plaintiff bad a right to get off bis engine and a right to sit down under the dock, and if the jury should find, while sitting there, be did not bear the man above him handling the lumber, or could not bave beard him by the exercise of ordinary care and prudence, and should find tbat be sat under there and did not know this lumber was going to come on him, and did not see it in time to get out of the way, and did not know tbat. the fellow-servant was going to throw this lumber over the dock, and could not have' known it by the exercise of ordinary care and prudence, and could not bave gotten out of the way after be saw it before it fell on him and injured him, then the plaintiff was not guilty of contributory negligence.” We think this instruction was erroneous. The evidence of the plaintiff himself is tbat be was 125 feet from bis engine; tbat be knew the purpose of the loading dock, and tbat timber was shoved over it when in use; tbat be went under there to take a drink, which was contrary to the orders of the company, and to bide from the superintendent, who was coming up; tbat the superintendent told him to move bis engine and take up the car, and be again disobeyed orders by remaining under the dock a while longer, until be was burt. He was where be bad no busi*472ness to be; be was away from bis work and doing a prohibited act and biding from tbe superintendent; wben found, be did not obey orders by going back to bis work, but remained in tbe place of danger. Upon these circumstances tbe court erred in telling tbe jury that be bad a right to go there and a right to leave bis engine and was not guilty of contributory negligence unless be saw or should have seen tbe falling timber in time to have avoided its falling upon him. For this reason there must be a
New trial.