Wright, J.
1. negligence : Jifmr’toxlhe011 court. Appellant assigns twenty-five errors. We cannot undertake to notice them in- their order, and yet endeavor to so present our views upon the questions legitimately arising, as to meet and dispose of the several points argued with so much ability by counsel.
I. And first as to defendant’s motion, after the close of the testimony, asking the court to instruct the jiiry to find in its favor, substantially upon the ground that there was no evidence to justify a verdict' for plaintiff. In overruling this motion there was no error. Assuming the correctness of defendant’s premises: first, that the court should grant such motion in all cases where it would feel bound to set aside a verdict for plaintiff, as often as rendered, as being against the evidence; and second, that whether a party has or has not been guilty of negligence in a particular case, is a question of mingled law and fact, but that when the facts are undisputed or conclusively proved the question of negligence must, as a rule, be decided by the court — we say, conceding these premises, defendant’s case is not one justifying the conclusion which he would deduce therefrom. For to reverse the action of the court below, on this motion, we should be compelled to find and say that upon the testimony the jury could not find [37]*37under the law, for plaintiff, or that -the facts were so clear and indisputable, as that, in judgment of law, -.there was no negligence on part of defendant, or if any, the proof was equally clear that defendant, by his want of care, had contributed to the injury. And if we applied ..defendant’s rule to this case, so we could to almost every one tried to a jury. The facts are disputed; the testimony not a little conflicting. There was scarcely any .one fact which could be said to be ascertained or undisputed. The negligence imputed by each party to the other, or the facts upon which it was claimed to depend, were disputed, and thus there -was raised by the clear current of the authorities, a mixed question of fact and law. The law is for the- court, and this law the jury take .from the court to apply to the facts when they have found ■them. In such cases the jury have a duty to perform, and the court should not undertake to invade their province. A party has no right under such circumstances, .upon motion, to withdraw the case from their consideration. When it is said that questions of care and diligence, after the facts are proven, are for the court, it is not meant simply, after the evidence is concluded. Proof is .one thing, evidence another. And the cases to which the rule has been applied show what is meant, and how inapplicable it is to the case at bar. Thus, in 3 Allen, 22 (Todd v. Railroad Co.), plaintiff’s arm, while protruding from the window of a car in which he was riding, was injured, and the court esteemed it its duty to decide upon .the legal effect of such an act, and this, because there was no point in dispute as to the facts. But see Spencer v. Milwaukee Co., 17 Wis. 487. So in cases of stepping on or off a car while in motion (as in Tucker v. Trenton Co., 6 Gray, 64; Nichols v. Sixth Av. Co., 38 N. Y. 131; Jeffersonville Co. v. Hendricks, 26 Ind. 228); or when there is a platform for the landing of the passengers, and [38]*38a passenger leaves on the other side (as in Penn. Co. v. Zebe, 33 Penn. 318); or when one bereft of sight or hearing goes on a railroad track without assistance or aid, or for any one to go thereon without exercising those powers of vision which would have enabled him to avoid an approaching train (Wilcox v. R. & W. R. R. Co., 9 N. Y. 358; Gonzales v. N. Y. & H. Co., Legal Journal, vol. 7, 120); or as in Massachusetts (Galragan v. B. & L. Co., 1 Allen, 187), where one attempts to pass between cars, completely blocking a highway. See Roach v. Lloyd, 31 Penn. 358; also Wyatt v. G. W Co., 6 B. & S. 709. And thus, we repeat, as might be shown from numberless cases, it is apparent that the rule under consideration is not applicable to cases like that before us. But that these may be more clearly seen, let us refer — which may be as well done here as anywhere — to some of the facts of the case.
The accident occurred at Waterloo, • Black Hawk county, in October, 1868, between four and five o’clock in the morning. The train left Dubuque the previous evening about six o’clock. The night had been cold, the morning was damp and disagreeable, and it had snowed, or the mist had frozen. It was a freight train of six cars, but a caboose car, which is usually attached to such a train, was wanting. Nor was there any stove in' either car,, where the employees could warm. As this train approached the depot, it was found that the “ night express ” was on the main track. The freight was therefore stopped some six hundred feet east, and ■ remained some thirty or fifty minutes for the passenger train to get put of the way. As the freight was not to go beyond this point, the engineer and brakemen, including decedent, concluded to make what-is known as a “flying switch” and thus place their train on the north side-track, where .it would be out of the way and where it belonged. But [39]*39for the “ night express,” the freight would have been run to the west end of the north switch and backed on to it, which was the usual way of placing trains upon the side-track ; though there is testimony tending to show that “ the making of flying switches was of every day occurrence.” The conductor of the freight train left it soon after it stopped, and went to the depot. There is testimony, however, tending to show that he was aware that the employees were making this switch — that he was near the train at the time and signaled the engineer to stop as soon as he discovered the accident. He knew nothing whatever, however, of ■ the agreement between the engineer, fireman and brakemen to thus dispose of the train, nor did he direct the movement of the train.
A flying s witch is made by uncoupling the cars from, the engine while in motion, and throwing the cars on to the side-track, by turning the switch, after the engine has passed it, upon the main track. In this instance, one brakeman attended to the switch, while decedent’s intention was to draw the pin between the tender and the cars. In doing this, he was thrown, or was compelled to jump, from the end of the car, upon which it is believed he was standing or to which he was holding ; the six cars passed over his body and he was instantly killed. The jury could reasonably conclude (as they find in their special verdict) that the car next to the tender was wanting in the usual, if not all, the appliances commonly used by other railroad companies for the safety and protection of brakemen, and this, because it was lacking in a platform, a brake rod, ladder or handle-rod on the end of the car, and other appliances spoken of by the witnesses. Plaintiff’s theory is, that defendant was negligent in three respects : First, in not furnishing a caboose car, whereby deceased was necessarily exposed to the cold and storm, [40]*40and became so benumbed that he fell and lost his life. Second, in not furnishing a car with the necessary and usual appliances for the safety of those whose duty it was to assist, as decedent did, in uncoupling the cars.
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Wright, J.
1. negligence : Jifmr’toxlhe011 court. Appellant assigns twenty-five errors. We cannot undertake to notice them in- their order, and yet endeavor to so present our views upon the questions legitimately arising, as to meet and dispose of the several points argued with so much ability by counsel.
I. And first as to defendant’s motion, after the close of the testimony, asking the court to instruct the jiiry to find in its favor, substantially upon the ground that there was no evidence to justify a verdict' for plaintiff. In overruling this motion there was no error. Assuming the correctness of defendant’s premises: first, that the court should grant such motion in all cases where it would feel bound to set aside a verdict for plaintiff, as often as rendered, as being against the evidence; and second, that whether a party has or has not been guilty of negligence in a particular case, is a question of mingled law and fact, but that when the facts are undisputed or conclusively proved the question of negligence must, as a rule, be decided by the court — we say, conceding these premises, defendant’s case is not one justifying the conclusion which he would deduce therefrom. For to reverse the action of the court below, on this motion, we should be compelled to find and say that upon the testimony the jury could not find [37]*37under the law, for plaintiff, or that -the facts were so clear and indisputable, as that, in judgment of law, -.there was no negligence on part of defendant, or if any, the proof was equally clear that defendant, by his want of care, had contributed to the injury. And if we applied ..defendant’s rule to this case, so we could to almost every one tried to a jury. The facts are disputed; the testimony not a little conflicting. There was scarcely any .one fact which could be said to be ascertained or undisputed. The negligence imputed by each party to the other, or the facts upon which it was claimed to depend, were disputed, and thus there -was raised by the clear current of the authorities, a mixed question of fact and law. The law is for the- court, and this law the jury take .from the court to apply to the facts when they have found ■them. In such cases the jury have a duty to perform, and the court should not undertake to invade their province. A party has no right under such circumstances, .upon motion, to withdraw the case from their consideration. When it is said that questions of care and diligence, after the facts are proven, are for the court, it is not meant simply, after the evidence is concluded. Proof is .one thing, evidence another. And the cases to which the rule has been applied show what is meant, and how inapplicable it is to the case at bar. Thus, in 3 Allen, 22 (Todd v. Railroad Co.), plaintiff’s arm, while protruding from the window of a car in which he was riding, was injured, and the court esteemed it its duty to decide upon .the legal effect of such an act, and this, because there was no point in dispute as to the facts. But see Spencer v. Milwaukee Co., 17 Wis. 487. So in cases of stepping on or off a car while in motion (as in Tucker v. Trenton Co., 6 Gray, 64; Nichols v. Sixth Av. Co., 38 N. Y. 131; Jeffersonville Co. v. Hendricks, 26 Ind. 228); or when there is a platform for the landing of the passengers, and [38]*38a passenger leaves on the other side (as in Penn. Co. v. Zebe, 33 Penn. 318); or when one bereft of sight or hearing goes on a railroad track without assistance or aid, or for any one to go thereon without exercising those powers of vision which would have enabled him to avoid an approaching train (Wilcox v. R. & W. R. R. Co., 9 N. Y. 358; Gonzales v. N. Y. & H. Co., Legal Journal, vol. 7, 120); or as in Massachusetts (Galragan v. B. & L. Co., 1 Allen, 187), where one attempts to pass between cars, completely blocking a highway. See Roach v. Lloyd, 31 Penn. 358; also Wyatt v. G. W Co., 6 B. & S. 709. And thus, we repeat, as might be shown from numberless cases, it is apparent that the rule under consideration is not applicable to cases like that before us. But that these may be more clearly seen, let us refer — which may be as well done here as anywhere — to some of the facts of the case.
The accident occurred at Waterloo, • Black Hawk county, in October, 1868, between four and five o’clock in the morning. The train left Dubuque the previous evening about six o’clock. The night had been cold, the morning was damp and disagreeable, and it had snowed, or the mist had frozen. It was a freight train of six cars, but a caboose car, which is usually attached to such a train, was wanting. Nor was there any stove in' either car,, where the employees could warm. As this train approached the depot, it was found that the “ night express ” was on the main track. The freight was therefore stopped some six hundred feet east, and ■ remained some thirty or fifty minutes for the passenger train to get put of the way. As the freight was not to go beyond this point, the engineer and brakemen, including decedent, concluded to make what-is known as a “flying switch” and thus place their train on the north side-track, where .it would be out of the way and where it belonged. But [39]*39for the “ night express,” the freight would have been run to the west end of the north switch and backed on to it, which was the usual way of placing trains upon the side-track ; though there is testimony tending to show that “ the making of flying switches was of every day occurrence.” The conductor of the freight train left it soon after it stopped, and went to the depot. There is testimony, however, tending to show that he was aware that the employees were making this switch — that he was near the train at the time and signaled the engineer to stop as soon as he discovered the accident. He knew nothing whatever, however, of ■ the agreement between the engineer, fireman and brakemen to thus dispose of the train, nor did he direct the movement of the train.
A flying s witch is made by uncoupling the cars from, the engine while in motion, and throwing the cars on to the side-track, by turning the switch, after the engine has passed it, upon the main track. In this instance, one brakeman attended to the switch, while decedent’s intention was to draw the pin between the tender and the cars. In doing this, he was thrown, or was compelled to jump, from the end of the car, upon which it is believed he was standing or to which he was holding ; the six cars passed over his body and he was instantly killed. The jury could reasonably conclude (as they find in their special verdict) that the car next to the tender was wanting in the usual, if not all, the appliances commonly used by other railroad companies for the safety and protection of brakemen, and this, because it was lacking in a platform, a brake rod, ladder or handle-rod on the end of the car, and other appliances spoken of by the witnesses. Plaintiff’s theory is, that defendant was negligent in three respects : First, in not furnishing a caboose car, whereby deceased was necessarily exposed to the cold and storm, [40]*40and became so benumbed that he fell and lost his life. Second, in not furnishing a car with the necessary and usual appliances for the safety of those whose duty it was to assist, as decedent did, in uncoupling the cars. Third, in not providing by rules for the removal of the passenger train, within a reasonable time, thus permitting the freight to be set upon the side-track in the usual way, without resorting to the flying switch.
Under these circumstances and upon these facts it would certainly bo going a great way, and beyond any case brought to our attention, to say that the facts were ascertained and settled, and that nothing but a question of law remained, which it was for the court to decide. And this remark and this thought applies to and disposes of defendant’s instruction to the effect that plaintiff had not introduced sufficient evidence to entitle him to recover, and that the verdict should, therefore, be for defendant. And see Donaldson v. M. and M. R. R. Co., 18 Iowa, 280; Sherman v. Western Stage Co., 24 id. 515. These cases are in accord with the authorities before cited, and fully sustain the conclusion, that the court below properly overruled defendant’s motion and refused said instruction. Shearman & Redf. on Negl., § 11, and cases cited in note 3; Snow v. Housatonic Co., 8 Allen, 441.
2. juky and c£ifindTngsP:e" practice. II. Defendant asked that the jury be required to answer specifically fifteen interrogatories. All of these were responded to but two, and as to them the answers were that they “ did not know.” Because these interrogatories were not answered, and because others were answered, as was claimed, evasively, defendant, before the reading of the general verdict, objected to its acceptance, and moved that the jury retire and be required to respond specifically to all the interrogatories. This motion was overruled', [41]*41the general verdict was received, and of this the defendant complains. As we could not, except in a case of clear abuse, interfere with the action of the court in refusing to return a jury to their room when they had reported their inability to agree upon a general verdict; neither will we where they are unable to respond to specific interrogatories. And this more especially, when the pertinency or materiality of the answer sought to be elicited, is not apparent. And still more so, when the general verdict is inconsistent with any other than one answer to such questions. In this case, the facts bearing thereon not being before us, we do not know but the court, from the length of time the jury had been engaged in their deliberations, could well say it was idle to keep them longer together, with the hope of obtaining a more complete or satisfactory return or verdict. The other answers were sufficiently definite and clear.
3. railroad : injuries to employees. III. The body of this case, however, is found in alleged errors, in giving and refusing instructions, and to these we now turn our attention. All defendant’s . .... instructions (eighteen m number) were refused, and this, as we suppose, either because they were held inapplicable, not to contain the law, or to be covered by the instructions in chief. Very many questions are raised therein, and yet they may and must be disposed of briefly.
The sixth paragraph of the court’s charge held it to be defendant’s duty to provide cars with such appliances as are best calculated to insure the safety of employees and if a ladder on the end of a car, or a handle, as described by the witnesses, would be a protection to life better than the car which produced the accident, then it would be defendant’s duty to furnish a car with such appliances.
To this it is objected, that it holds the company to the [42]*42exercise of the highest degree of skill of which human effort is capable, and, in the second place, that it assumes that the car produced the accident. In neither of these views can we concur. The duty of defendant was to use all reasonable precaution for the safety of his employees; And among other things it was bound to furnish suitable machinery — materials sound and safe — and to keep them in such a condition as would not endanger their safety ; such as wore least likely to do or cause injury. This, however, does not imply that it is the master’s duty to use extraordinary care and diligence ; nor that he is bound to obtain all the so-called improvements in machinery and appliances, for the use of those in his employ, and we do not by any means intend so to hold. But if a ladder on the end of a car is better calculated to insure safety than a smooth surface without any means of ascending the car to apply the brake after the hazardous work of uncoupling 'the train, then it should be provided. And looking at the language of this instruction it means no more than this, and especially so in the light of the testimony. It was shown that a ladder or handle was placed upon the end of cars generally ; that nothing of this kind was upon this car ; and i'f those would afford a better protection to defendant’s employees, then they, or none of them, should have been provided. It was never meant, nor is this the fair construction of the language used, that defendant was bound to use the highest skill, the greatest foresight, the most extraordinary care in procuring the very best appliances, but rather those appliances which were reasonably, best calculated to insure the end proposed, as compared with those furnished.
Then as to the language, “ the car which produced the accident,” this means no more than to designate the one which plaintiff claimed was defective in its construction.. This is no more erroneous than if the court had referred [43]*43to this as the “train producing the accident,” or “this car,” or the like. Nc reasonable jury could have been misled thereby. A court is not bound to the exercise of such extraordinary care and caution in the selection of its language as to prevent all possibility of misapprehension. At can well be assumed that the purpose and object of the language employed, when not fairly calculated to deceive and mislead, will be correctly understood and applied by the jury.
The tenth instruction given by the court was this : “If you find that the deceased was in the discharge of his duties, under the control of a superior officer, or agent of the defendant, and that the áccident was occasioned by reason of the defective construction of the car next to the tender, or the improper maimer in which the train was made up, or from having no way car or caboose attached to the train, and without the deceased’s fault, then you should find for plaintiff.”
Upon several grounds we are of the opinion that this instruction was calculated to mislead, and hence was erroneous. It very clearly appears that it is the duty of a conductor of a train to direct its movements ; and it is just as well shown that the deceased proposed this flying switch, and that the other trainmen agreed to it for their own accommodation (because they desired to get rid of the train, and some of them, the deceased at least, wished to go to a station north of Waterloo that evening), and in the absence of the conductor. There was no superior officer there at the time, and .hence he could not have been acting under the control of such officer. That the conductor had knowledge of their work, and requested the engineer to stop, after the accident, is quite a different thing. Then,, too, we have searched in vain for testimony that this accident occurred by reason of the improper manner of making up the train, or the [44]*44absence of a way car. If by the “improper making up of the train” is m'eant the defective car next to the tender, then this thought is covered by other language of the instruction. And what was meant we cannot tell, unless it refers to either the place of this car in the train, or the absence of the caboose. If any thing else, them there is no scintilla of evidence upon. which to base it. And if to the want of the way car, then it was based, doubtless, upon the thought that there being no stove, the deceased, by reason of the cold and his exposure was so benumbed as that he fell and lost his life. But as defendant’s counsel well suggests, for aught that appears the deceased was entirely warm and comfortable ; in no manner suffering from the influence of the frost and snow. Then, too, if thus cold, it was no part of his duty to voluntarily undertake to make the switch. In doing so he would be guilty of such negligence or want of care as prima facie would defeat a recovery; and especially so in view of the snow and ice on the car. Having no part in making up trains, as the testimony shows he had, we grant, a right to presume that it was made up properly, and as such trains are usually made up, including a caboose and proper appliances for his safety. And if, by reason of any neglect in this respect, he was necessarily exposed to danger, and injury followed, the company might be liable. Hence, if in obedience to the direction of the conductor or engineer in applying the brakes, when compelled and required for the safety of the train and- human life, he should, by reason of incapacity brought on by the absence of the caboose and a fire, suffer injury, we could not say that he would be remediless. But if in this condition, the greater caution was demanded at his hands. And to say that when he acts at his own instance and without the command of a snpeirior or a pressing emergency, he may hold the com[45]*45pany liable for a condition of the hands or feet produced by cold — a condition which, as is argued, might have been avoided by a way car and stove — would trace back the chain of causes too indefinitely, and far beyond what the law will undertake to do. In such a case the negligence of the company in not attaching the way car would hardly be the proximate cause of the injury of which plaintiff complains. The law looks to the person or agent who is the proximate and not the remote cause of the wrong or injury. If but for such neglect (the omission of the car) the injury would not have happened, then, though it may not have been the sole and immediate cause, it still might, in the estimation of the law, be proximate, and especially so if this and the other circumstance or circumstances are connected in the order of events with the injury. Sher. & Redf. on Negl., § 10.
And now of a few other matters generally. The charge of the court is for the most part quite as favorable to defendant as could be reasonably asked. So, too, it covers very much of the ground of defendant’s numerous and quite lengthy instructions. It is unusually clear and specific in the enunciation of general rules, wanting, however, it must be added, in a reference to the facts and the application of the law to this, instead of cases of negligence generally. The case is one which calls peculiarly for particularity in the statement of rules, as applicable to the theories of the respective parties. And hence, while the charge in its general language covered what was asked by defendant, it might still have been well to have given some of them either as asked, or in some other manner, to have brought more directly to the attention of the jury the rights, duties and liabilities of the company and its employees. And the same is true as to some rules of evidence pertaining to such cases. Without undertaking to point out in' detail how this [46]*46might and should have been done, we conclude by stating some matters which may and should be observed in the next trial.
5 _jmowiedge of defect. If this car was wanting in the appliances referred to by plaintiff at the time of its construction, and so continued when put and used upon the road, it would n0t jjg necessary to show further notice, or knowledge thereof on defendant’s part, or that of its agents, in order, thus far, to fix liability. If, however, it was at one time safe and convenient, that is, had all the conveniences reasonably necessary for the- safety of employees, and they were removed by accident or otherwise, then it should be shown that defendant either had notice thereof, or ought to have had, by the use of ordinary care, before an employee could claim liability on account of such defect. When once this knowledge is shown, or what is the same thing, culpability in lacking knowledge, if it is claimed that the injured employee also knew it, this knowledge by the employee, and that the service was commenced or continued with such knowledge by him, must be shown by defendant. The burden in such cases is put upon the employee, but he is not bound to show, in the first instance, his lack of knowledge. Sher. & Redf. on Negl., § 99. If the danger or defect is known to the employee, or might have been known by the use of ordinary care, and there is no inducement to remain, by promises to remove, to secure or remedy the same it would seem but reasonable that he assumes the risk and should not recover.
,n0e°^ probandi. The burden of proof is upon the plaintiff to show both the negligence of defendant and his own care. But he is not bound to do more than raise by his proof a reasonable presumption of negligence. If the facts proved make it probable that the defendant neglected its duy, it is for the jury to decide between them. [47]*47Thus, if it appears that a brakeman, engaged as this one was, with cars suitably equipped, by the exercise of due care had from time to time discharged the duty without injury, this might raise a fair presumption against defendant, and it would be for it to show that the employees' negligence, or some circumstance which it could not control, contributed to or caused the accident.
We are aware that the cases are not entirely in accord as to the duty of plaintiff in these actions to show himself without fault. In this state, however, it is believed the rule is as stated above. Thus- in Donaldson v. M. & M. Co., 18 Iowa, 281, where plaintiff's intestate was killed by the cars while crossing the track, it was held to be incumbent on plaintiff to show by direct testimony, or by presumptions arising from facts and circumstances, that the deceased was all the time rightfully, and not negligently or improperly, upon the track. And in Spencer v. Ill. Cent. R. R. Co., post, 55; Rusch v. City of Davenport, 6 Iowa, 443; Hanlon v. City of Keokuk, 7 id. 488; where the general doctrine is very fully stated and recognized.
9_wJiere uniermstruotl0ns' And finally, though decedent knew of the defective car, if he acted under instructions and directions of a superior, the action would by no means thereby be defeated. Under such circumstances, compelled as he necessarily would be to act with promptness and dispatch, it would be most unreasonable to demand of him the thought, care and scrutiny which might be exacted where there is more time for observation and deliberation. Thus, if a ladder is usually found upon such cars, in the haste necessarily attendant upon uncoupling cars and stopping the train, he was not bound to deliberate and settle in his mind that alike means of ascending the car was on this one, though he knew by prior observation that' it was wanting. And it was upon this principle, in [48]*48part at least, that Snow v. Housatonic Co., 8. Allen, 441, was ruled. There the plaintiff stepped into a hole, while uncoupling cars, by which he was injured, and though he had previous knowledge of this hole, he was held entitled to recover. And so of other cases which might be cited. And see Reed v. Northfield, 13 Pick. 98; Smith v. Terrill, 6 Allen, 40.
It is always competent for the jury to take into consideration the hazardous nature of the work in which brakemen are employed; their means of knowledge; what they are reasonably required to know, in the nature of their calling, of machinery; the thought and reflection demanded or expected of such persons ; their just expectation that the company will exercise due care and prudence in protecting them against injury; and to give due weight to those instincts which naturally lead men to avoid injury and preserve their lives. And hence, as these instincts, motives and feelings may properly constitute evidence for the consideration of the jury (Allen v. Willard, 57 Penn. 380), when, as in this case, it appears that the deceased was last seen proceeding with becoming care, with the usual light, to uncouple the cars, we say, under such circumstances the jury might well presume care and caution on his part to save himself from harm. Upon such proof or in such a case how the deceased got under the cars, or what caused him to fall, is a question for the jury. To require a plaintiff to even show due care in such cases would in many instances impose the duty of showing negatively that he did not stumble by carlessness, or jump voluntarily into danger. How clear, and the nature of, the evidence to show a want of negligence, must of course depend upon the time, place and surroundings of the parties, as well as many other matters which we need not enumerate, but which [49]*49will readily occur to the non-professional as well as to the legal mind.
The judgment below is reversed, and the case remanded for trial de novo.
Reversed.