BROWN, J.
In. the case of Atchison etc. Ry. Co. v. Calhoun, 213 U. S. 1, 7 (53 L. Ed. 671, 29 Sup. Ct. [87]*87Rep. 321, 322, see, also, Rose’s U. S. Notes), it was aptly observed by Mr. Justice Moody that:
“Few questions have more frequently come before the courts than that whether a particular mischief • was the result of a particular default. It would not be useful to examine the numerous decisions in which this question has received consideration, for no case exactly resembles another, and slight differences of facts may be of great importance. * * The law, in its practical administration, in cases of this kind regards only proximate or immediate and not remote causes, and in ascertaining which is proximate and which remote refuses to indulge in metaphysical niceties.”
The following constitutes a fair statement of the facts in the case at bar, as we understand them:
As shown by the statement in the case, plaintiff, for grounds of recovery, alleges negligence in three respects. Upon trial, the second and third items of averred negligence were, by order of the court, excluded from the consideration of the jury. The court held, with respect to the element of alleged negligence relating to the gas-pipe, that “there is nothing in the record to support the view of plaintiff that such constituted negligence,” and that
“As to the element of failing to station signals to disclose that the first car was standing upon the track constituting negligence, as claimed by the plaintiff, in the opinion of the court has not been supported, for the evidence disclosed that the car had just stopped when the collision occurred, and had not been standing upon the track; therefore no warning of a condition that did not exist would be enjoined upon the defendant.”
Herman Lewis was the foreman of a crew of employees of the defendant commonly designated as an “extra gang,” and they had been instructed to work for the defendant at Kipheart Bluffs situate [88]*88some fifteen miles from Anmsville on the Corvallis & Eastern Branch of defendant’s lines operating from Albany eastward by way of Mill City to Detroit, Oregon. At the time of the accident the foreman was ill, and the deceased was, and for - some time prior thereto had been, acting as foreman. For purposes of transportation the employees were furmished by the defendant with two motor-cars termed herein Car A and Car B. On the twenty-sixth day of March, 1918, the crew, in going to Kipheart in accordance with previous instructions, went from Aumsville, a town situate on the Woodburn-Springfield branch of the defendant’s road, to Shelburn, a distance of six or seven miles, and there transferred to the tracks of the Corvallis & Eastern branch thereof. Cheffings rode on Car A as far as Shelburn. Car B had not run well. It had stopped a number of times before reaching Shelburn, and at that place Cheffings, the acting foreman, transferred all the crew to Car A and directed them to proceed to their objective point for the purpose of going to work. Emery Bino, a member of the crew, was picked up at Shelburn and was directed by Cheffings to accompany him on Car B for the purpose of repairing it. Bino testified that he got on the car with Cheffings at his order; that Cheffings had instructed the other members of the crew to get on Car A and proceed to their destination, and that he directed him (Bino) “to fix the car (Car B) and make it go.” He further testified that he cleaned the spark plugs “and started to jiggle the carburetor”; that the car in the meantime picked up speed which he estimated to be from twelve to fifteen miles in a distance of a little over six hundred feet.
[89]*89“Q. Now, the car which yon and Mr. Cheffmgs were on, who was running the car, yon or Mr. Cheffings ?
“A. Mr. Cheffmgs. * #
“Q. You say there was a train shortly due each way?
“A. Well, it would be due pretty quick. I don’t know what time. * *
“Q. And he said, ‘Better hurry up and get started’?
“A. Yes, sir. * *
“Q. The first intimation you had! of danger was Cheffmgs yelling to you, ‘Look out’?
“A. Yes.
“Q. Then when you looked up you were only a few feet from this other motor-car?
“A. Yes, sir.
“Q. Was there anything else on the track, or was there anything between the intersection of the station at Shelburn and the tool-house where the accident occurred, any obstruction on the track?
“A. No.
“Q. Any curve there or anything?
■ “A. No. * #
“Q. Did you have time to apply brakes or anything like that?
“A. No. * * ”
J. H. Simpson, another member of the crew, testified that Car B stopped several times between Aumsville and Shelburn, and that upon reaching Shelburn those of the gang riding upon Car B were, by Cheffing’s order, transferred to Car A and directed to proceed; that when Car A was some distance out of Shelburn it stopped on account of trouble with the engine, and that Mr. Darby went to work with the engine; that Cheffings and Bino were working with Car B, “which was coming pretty slow,” and that “it kept on coming pretty slow and they kept working with it”; that Bino was [90]*90on the left-hand side of the car working underneath, and Cheffings was on the right-hand side down on one knee, with his left hand up on the side and his ■ right hand underneath, where the machinery was; that witness first saw Car B when it was about thirty feet away; that the crew were on Car A when they saw Car B approaching and they holloed and jumped off.
“Q. What did Mr. Cheffings and Mr. Bino do after their attention was directed to the fact that your car was on the track?
“A. Mr. Cheffings got up and reached for the brake. About that time the two cars hit and he missed the brake and the railing on the front end of the car' struck him under the chin.
“Q. What was the result of the collision?
“A. Well, smashed the cars up * * .
“Q. Now, could you see from where you were that he (Cheffings) wasn’t looking the way the car was going, or that he was looking down or some other way from the way in which the car was going? ■
“A. Yes, I could see he was looking underneath, about where the engine—
“Q. He wasn’t looking down the track, the way the car was going?
“A. No.”
The term “proximate cause” is thus defined:
“In law ‘proximate cause’ refers to the person producing it, as against ‘proximate cause’ in logic, which refers to the moving influence itself.” Words & Phrases (N. S.).
It is there said:
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BROWN, J.
In. the case of Atchison etc. Ry. Co. v. Calhoun, 213 U. S. 1, 7 (53 L. Ed. 671, 29 Sup. Ct. [87]*87Rep. 321, 322, see, also, Rose’s U. S. Notes), it was aptly observed by Mr. Justice Moody that:
“Few questions have more frequently come before the courts than that whether a particular mischief • was the result of a particular default. It would not be useful to examine the numerous decisions in which this question has received consideration, for no case exactly resembles another, and slight differences of facts may be of great importance. * * The law, in its practical administration, in cases of this kind regards only proximate or immediate and not remote causes, and in ascertaining which is proximate and which remote refuses to indulge in metaphysical niceties.”
The following constitutes a fair statement of the facts in the case at bar, as we understand them:
As shown by the statement in the case, plaintiff, for grounds of recovery, alleges negligence in three respects. Upon trial, the second and third items of averred negligence were, by order of the court, excluded from the consideration of the jury. The court held, with respect to the element of alleged negligence relating to the gas-pipe, that “there is nothing in the record to support the view of plaintiff that such constituted negligence,” and that
“As to the element of failing to station signals to disclose that the first car was standing upon the track constituting negligence, as claimed by the plaintiff, in the opinion of the court has not been supported, for the evidence disclosed that the car had just stopped when the collision occurred, and had not been standing upon the track; therefore no warning of a condition that did not exist would be enjoined upon the defendant.”
Herman Lewis was the foreman of a crew of employees of the defendant commonly designated as an “extra gang,” and they had been instructed to work for the defendant at Kipheart Bluffs situate [88]*88some fifteen miles from Anmsville on the Corvallis & Eastern Branch of defendant’s lines operating from Albany eastward by way of Mill City to Detroit, Oregon. At the time of the accident the foreman was ill, and the deceased was, and for - some time prior thereto had been, acting as foreman. For purposes of transportation the employees were furmished by the defendant with two motor-cars termed herein Car A and Car B. On the twenty-sixth day of March, 1918, the crew, in going to Kipheart in accordance with previous instructions, went from Aumsville, a town situate on the Woodburn-Springfield branch of the defendant’s road, to Shelburn, a distance of six or seven miles, and there transferred to the tracks of the Corvallis & Eastern branch thereof. Cheffings rode on Car A as far as Shelburn. Car B had not run well. It had stopped a number of times before reaching Shelburn, and at that place Cheffings, the acting foreman, transferred all the crew to Car A and directed them to proceed to their objective point for the purpose of going to work. Emery Bino, a member of the crew, was picked up at Shelburn and was directed by Cheffings to accompany him on Car B for the purpose of repairing it. Bino testified that he got on the car with Cheffings at his order; that Cheffings had instructed the other members of the crew to get on Car A and proceed to their destination, and that he directed him (Bino) “to fix the car (Car B) and make it go.” He further testified that he cleaned the spark plugs “and started to jiggle the carburetor”; that the car in the meantime picked up speed which he estimated to be from twelve to fifteen miles in a distance of a little over six hundred feet.
[89]*89“Q. Now, the car which yon and Mr. Cheffmgs were on, who was running the car, yon or Mr. Cheffings ?
“A. Mr. Cheffmgs. * #
“Q. You say there was a train shortly due each way?
“A. Well, it would be due pretty quick. I don’t know what time. * *
“Q. And he said, ‘Better hurry up and get started’?
“A. Yes, sir. * *
“Q. The first intimation you had! of danger was Cheffmgs yelling to you, ‘Look out’?
“A. Yes.
“Q. Then when you looked up you were only a few feet from this other motor-car?
“A. Yes, sir.
“Q. Was there anything else on the track, or was there anything between the intersection of the station at Shelburn and the tool-house where the accident occurred, any obstruction on the track?
“A. No.
“Q. Any curve there or anything?
■ “A. No. * #
“Q. Did you have time to apply brakes or anything like that?
“A. No. * * ”
J. H. Simpson, another member of the crew, testified that Car B stopped several times between Aumsville and Shelburn, and that upon reaching Shelburn those of the gang riding upon Car B were, by Cheffing’s order, transferred to Car A and directed to proceed; that when Car A was some distance out of Shelburn it stopped on account of trouble with the engine, and that Mr. Darby went to work with the engine; that Cheffings and Bino were working with Car B, “which was coming pretty slow,” and that “it kept on coming pretty slow and they kept working with it”; that Bino was [90]*90on the left-hand side of the car working underneath, and Cheffings was on the right-hand side down on one knee, with his left hand up on the side and his ■ right hand underneath, where the machinery was; that witness first saw Car B when it was about thirty feet away; that the crew were on Car A when they saw Car B approaching and they holloed and jumped off.
“Q. What did Mr. Cheffings and Mr. Bino do after their attention was directed to the fact that your car was on the track?
“A. Mr. Cheffings got up and reached for the brake. About that time the two cars hit and he missed the brake and the railing on the front end of the car' struck him under the chin.
“Q. What was the result of the collision?
“A. Well, smashed the cars up * * .
“Q. Now, could you see from where you were that he (Cheffings) wasn’t looking the way the car was going, or that he was looking down or some other way from the way in which the car was going? ■
“A. Yes, I could see he was looking underneath, about where the engine—
“Q. He wasn’t looking down the track, the way the car was going?
“A. No.”
The term “proximate cause” is thus defined:
“In law ‘proximate cause’ refers to the person producing it, as against ‘proximate cause’ in logic, which refers to the moving influence itself.” Words & Phrases (N. S.).
It is there said:
“In discussing legal causation, the phrase ‘proximate cause’ does not necessarily mean that which is nearest, but refers rather to the efficient cause, and in this sense is sometimes referred to as the immediate and direct cause, as opposed to remote; and the words ‘proximate,’ ‘immediate’ and ‘direct’ are fre[91]*91quently used as synonymous.” Words & Phrases (N. S.).
Again:
“In determining the proximate cause of an injury, it is not material whether it is the first or last in the succession of events resulting therein, provided it is the responsible cause.” Words & Phrases (N. S.).
“Proximate cause means probable cause.” Words & Phrases- (N. S.).
It appears from the evidence in the instant case that the alleged defects in Car A and Car B, or either of them, were not the proximate cause of the injury.
The phrase “assumption of risk” has been defined thus:
“The standard of care which the law requires of a servant is that which a reasonably cautious and intelligent person would exercise under the same circumstances, and the hazards and risks attendant upon his employment which he assumes are those, which are open and obvious, of which he ought to have known by using reasonable care.” Words & Phrases (N. S.).
The following is peculiarly applicable to the ease at bar:
“The doctrine of ‘assumed risk’ must be limited to risks which are obvious and can be understood by a servant of ordinary intelligence, or at most to those dangers which should be anticipated by the servant, as a result of obvious conditions, or may reasonably be expected to be known by him.” Words & Phrases (N. S.).
In the case of Wintermute v. Oregon-Wash. R. & N. Co., 98 Or. 431, 436-439 (194 Pac. 420, 421), Mr. Chief Justice Burnett, speaking for this court, said:
“Another proposition well established by the precedents is that the defenses of assumption of risk [92]*92and of contributory negligence are separate and distinct in legal effect, although as applied in practice they may largely rest upon the same state of facts. This rule is thus stated in a note in 49 L. R. A. 33, 50, reporting the case of Limberg v. Glenwood, Lbr. Co., 127 Cal. 598 (60 Pac. 176, 49 L. R. A. 33), reading as follows: ‘The doctrine of assumed risks obtains without necessary reference to the existence of negligence. If the servant, with knowledge of a defect in the master’s premises, and of a danger and risk incident thereto, continues in the service of the master without proper notice to the latter he assumes the risk incident to the service and growing out of the existence of the defect, and this without regard to the degree of care which he may exercise in the performance of his labors (citing many authorities).’ * * The principle established by such cases is that assumption of risk is an implied condition of the contract between the employer and the employee, while negligence of the employee contributing to his hurt arises from his own tort. * # The rule is thus stated in Ball v. Gussenhoven, 21 Mont. 321 (74 Pac. 871): ‘If the defense of assumption of risk is maintained, the question of the existence of contributory negligence does not arise, because, if plaintiff assumed the risks of the employment, he cannot recover, even if he exercised the highest degree of care.’ * * Lastly, it is sound doctrine that notice or knowledge and appreciation of the danger are indispensable to the assumption of risk.”
In the case of Brundage v. Southern Pac. Co., 89 Or. 483, 504, 509 (174 Pac. 1139, 1145), Mr. Justice Harris wrote:
“The defense of assumption of risk is available to the defendant: Jacobs v. Southern Ry. Co., 241 U. S. 229 (60 L. Ed. 204, 36 Sup. Ct. Rep. 588, see, also, Rose’s U. S. Notes); Morata v. Oregon-Wash. R. & N. Co., 87 Or. 219, 225 (170 Pac. 291). * * Framhein [the decedent] assumed all the risks that were ordinarily incident to his employment and also [93]*93extraordinary risks which he knew or ought to have known and appreciated: Galvin v. Brown & McCabe, 53 Or. 598, 611 (101 Pac. 671.)”
According to the record, Cheffings (the decedent) had knowledge of the defects existing in the motorcar, and hy his own direction created the dangerous conditions under which he worked, and voluntarily assented thereto.
As shown in the evidence, the fatal collision occurred at a point about six hundred feet from Shelburn, on a straight track, where there was nothing obscuring the view. Furthermore, the foreman had directed Car A to go forward. By his own arrangement he followed on, and operated, Car B. Under his order Emery Bino worked on Car B while it was running, for the purpose of repairing the carburetor, cleaning the spark-plugs and making the car go. Cheffings was not only an experienced railroad employee, but he knew that cars and trains of cars were operated upon the railroad track over which he was traveling. Notwithstanding this fact he, while operating the motor-car, not only failed to watch the track ahead in order to preserve the safety of Bino and others, including himself, but he got down upon his hands and knees, probably for the purpose of helping Bino fix the ear, and permitted it to run without keeping a lookout ahead. In the meantime, something' went wrong’ with the engine of Car A and it stopped. Car B approached within a few feet of car A before Cheffings discovered the obstruction upon the track. When he suddenly saw the proximity of Car A he got up, reached for the brake and missed it, the cars collided and the railing on the front end of his car struck him under the chin, inflicting the injury from which he died. According to the undisputed testimony, the [94]*94deceased was the man in charge of the crew; the man who ordered Car A to go ahead; the man who directed the operation of the cars; the man who made the situation. The condition of the record establishes that Cheffings knowingly assumed a risk that was obvious. The defendant is not an insurer.
The court committed error in failing to direct a verdict for the defendant on its motion at the conclusion of the evidence. This error was fundamental. Hence it is not necessary to consider the other assignments.
As stated in State v. Moss, 95 Or. 616, 629 (182 Pac. 149, 188 Pac. 702):
“It is possible that the prosecution may be able to make a better case at another trial, but a conviction (judgment) cannot be sustained rightly oh the record before us.” .
The judgment rendered in favor of the plaintiff in the court below is reversed and the cause remanded to that court for further proceedings consistent with this opinion.
Beversed and Bemanded.
Bean,. Harris and McCourt, JJ., concur.