Opinion of the court by
JUDGE HOBSON
-Reversing.
Appellant filed this suit to recover damages for the loss of life of his intestate by reason of the alleged negligence [808]*808of appellee, and ai the conclusion of the evidence on both sides the eou'ri instructed the jury peremptorily to find for the' defendant, although he had overruled this motion at the cdose of the plaintiff’s testimony. The intestate was a section hand in the service of appellee, working under a boss whose name was Kron. ITe had been working for the company about three, days at the time, of his death, although it would appear from the proof that he had been in the same service under a previous employment. He was killed on September 10, 1900. On that morning about 6 o’clock the section boss, with his crew of seven men, including the intestate, left the section house on the hand car and went to Riney station. They waited there for some time for the passenger train known as No. 104, a fast train from the South, but it was late. An accommodation passenger train, known as No. 32, was due shortly also from the South. Riney is not a telegraph station. The section boss finally concluded that he could safely go to Otter creek, which was about two miles north of Riney, and was under the impression that the local passenger No. 32 would probably arrive before the fast passenger train No. 104. He accordingly ordered his men to get on the hand car and go to Otter creek. This they proceeded to do, and at each curve they stopped and looked and listened for the train behind them, but saw or heard nothing. After they had made three stops in this wav, and when they had emerged from the last curve, and. were running down the grade to the Otter creek switch, and not very far from it, one of the men on the ear suddenly called out, “'There she comes.” The train was then emerging from a cut about 800 feet from them, and running, according to the proof for the plaintiff, 60 or 70 miles an hour. The hands on the car, except Long, immediately jumped off without standing on the order of their going. About the [809]*809time they reached the ground, or before they got up from the fall, the train struck the car. Whether Long did not know of the approach of the train, or realize how close it was to him, is not made clear by the proof. He remained on the car, and was thrown up into the air by the engine as high as the top of the smokestack, and his brains were knocked out. The proof for the plaintiff tended to show that he was so situated that he could not get off as quickly as the others, while that for the defendant showed that the section boss called to him to leave the car. But this -was evidently just before the train struck it. Pie was 54 years of age, and Mas perhaps not as quick in his movements as the younger men. The proof of the plaintiff shoM’ed that there ■were two Mdiistling boards south of the hand car, one for a road crossing and one for the station, and that the train did not whistle for either of these. The proof of the defendant shoM-ed that the train did whistle, and that it urns running between 50 and 60 miles an hour. The schedule time of the train was 35 miles. On that morning there were two sections of No. 104. The train which struck the hand 'car urns the first section, or an extra consisting of four or five sleepers, carrying excursionists to Ohio, but running on the time of the regular train, and as its first section. It had run from Paducah, 175 miles, without stopping, and M-as about 25 minutes late. Shortly after it came the second section of No. 104, or the regular fast train, and also the accommodation passenger train, known as No. 32, and they were all three at Otter creek together. It is urged for appellee* that the intestate knew the train was late and overdue, and took the risk. It is urged for appellant that he acted under the orders of his foreman, and had a right to presume that his superior would not order him to go ahead with the hand car if there n*as danger. The [810]*810principle relied on is that the servant may lawfully obey the orders of his employer, relying on his superior knowledge and judgment. But it is insisted that this principle does not apply, as Einey Avas not a telegraph station, and each of the men on the hand car kneAAr as much about the danger as the boss. The circuit court seems to have taken this yieAV.
Kron had a Avafch. and so far as appears Avas the only man in the creAV Avho had a watch that was running; but they all knew the time' of the train, and that it was overdue. None of them knew that there was an extra on the road that morning, but as this AA'as running on the time of the regular train, and was simply the front section of it, it did not materially affect the result. The train men had’ no intimation of the presence of the hand car on the track. No flag Avas put out by Kron, and no torpedoes or anything to giA-e notice of danger ahead. In the American and English Encyclopedia of Law (volume 20 [2d Ed.] p. 120) the rule is thus stated: “'Since the master is under a special duty to inspect and in\restigate risks to Avkich the servant is exposed, and since the servant may rely upon the performance of this duty, the fáct that the servant proceeds under the orders of the master in performing an act Avhereby he is exposed to unusual danger renders the master liable for a resulting injury to the servant, unless the risk of the act was fully realized by the servant, and was so apparent that no man of ordinary prudence, situated as he was, would have undertaken it.” A number of cases are collected sustaining the text. See, also, to same effect, 1 Thomp. Neg., sections 192, 412. In section 445, it is said: “Where the negligence of one person has prepared a risk for another, and that other, proceeding in the discharge of his duty or in the course of his business, accepts the risk, and is hurt [811]*811in consequence of so doing, the question of whether he is guilty of contributory negligence is almost always a question of fact for the jury/" A servant is not called upon to set up his unaided judgment against that of his superiors. He may rely upon their orders. Ward v. Railroad Co., (23 R., 1326) (65 S. W., 2). As has been well said, the servant's dependent and inferior position is to be taken into consideration: and if the master gives him positive orders to go on with the work, and the servant is inj vu-ed, he may recover, unless the work was so obviously dangerous that a servant of ordinary prudence, situated as lie was, would not have obeyed. •
In this case Long was a mere laborer.. The section foreman under whose direction he worked represented the master. and it was Long's duty to obey his orders in the usual course of business. When he received an order it was not his duty to sit in judgment upon its propriety, or to enter into a discussion with him as to the facts upon which it was based. He had a right to presume that improper orders would not he given, and to assume that the section foreman would not direct him to take risks that were improper. If he was injured while obeying the orders of his superior and by reason of bis negligence, lie may recover, unless the risk was such that a person of ordinary prudence, situated as Long ivas, would not have taken it. In determining whether Long should have obeyed the orders of liis superior, it must be borne in mind that the crew were out on the road, and that if Long had not obeyed lie could not have remained with the crew. 8o far as appears, he knew nothing about the running of the trains, and was not required by bis employment to know about them.
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Opinion of the court by
JUDGE HOBSON
-Reversing.
Appellant filed this suit to recover damages for the loss of life of his intestate by reason of the alleged negligence [808]*808of appellee, and ai the conclusion of the evidence on both sides the eou'ri instructed the jury peremptorily to find for the' defendant, although he had overruled this motion at the cdose of the plaintiff’s testimony. The intestate was a section hand in the service of appellee, working under a boss whose name was Kron. ITe had been working for the company about three, days at the time, of his death, although it would appear from the proof that he had been in the same service under a previous employment. He was killed on September 10, 1900. On that morning about 6 o’clock the section boss, with his crew of seven men, including the intestate, left the section house on the hand car and went to Riney station. They waited there for some time for the passenger train known as No. 104, a fast train from the South, but it was late. An accommodation passenger train, known as No. 32, was due shortly also from the South. Riney is not a telegraph station. The section boss finally concluded that he could safely go to Otter creek, which was about two miles north of Riney, and was under the impression that the local passenger No. 32 would probably arrive before the fast passenger train No. 104. He accordingly ordered his men to get on the hand car and go to Otter creek. This they proceeded to do, and at each curve they stopped and looked and listened for the train behind them, but saw or heard nothing. After they had made three stops in this wav, and when they had emerged from the last curve, and. were running down the grade to the Otter creek switch, and not very far from it, one of the men on the ear suddenly called out, “'There she comes.” The train was then emerging from a cut about 800 feet from them, and running, according to the proof for the plaintiff, 60 or 70 miles an hour. The hands on the car, except Long, immediately jumped off without standing on the order of their going. About the [809]*809time they reached the ground, or before they got up from the fall, the train struck the car. Whether Long did not know of the approach of the train, or realize how close it was to him, is not made clear by the proof. He remained on the car, and was thrown up into the air by the engine as high as the top of the smokestack, and his brains were knocked out. The proof for the plaintiff tended to show that he was so situated that he could not get off as quickly as the others, while that for the defendant showed that the section boss called to him to leave the car. But this -was evidently just before the train struck it. Pie was 54 years of age, and Mas perhaps not as quick in his movements as the younger men. The proof of the plaintiff shoM’ed that there ■were two Mdiistling boards south of the hand car, one for a road crossing and one for the station, and that the train did not whistle for either of these. The proof of the defendant shoM-ed that the train did whistle, and that it urns running between 50 and 60 miles an hour. The schedule time of the train was 35 miles. On that morning there were two sections of No. 104. The train which struck the hand 'car urns the first section, or an extra consisting of four or five sleepers, carrying excursionists to Ohio, but running on the time of the regular train, and as its first section. It had run from Paducah, 175 miles, without stopping, and M-as about 25 minutes late. Shortly after it came the second section of No. 104, or the regular fast train, and also the accommodation passenger train, known as No. 32, and they were all three at Otter creek together. It is urged for appellee* that the intestate knew the train was late and overdue, and took the risk. It is urged for appellant that he acted under the orders of his foreman, and had a right to presume that his superior would not order him to go ahead with the hand car if there n*as danger. The [810]*810principle relied on is that the servant may lawfully obey the orders of his employer, relying on his superior knowledge and judgment. But it is insisted that this principle does not apply, as Einey Avas not a telegraph station, and each of the men on the hand car kneAAr as much about the danger as the boss. The circuit court seems to have taken this yieAV.
Kron had a Avafch. and so far as appears Avas the only man in the creAV Avho had a watch that was running; but they all knew the time' of the train, and that it was overdue. None of them knew that there was an extra on the road that morning, but as this AA'as running on the time of the regular train, and was simply the front section of it, it did not materially affect the result. The train men had’ no intimation of the presence of the hand car on the track. No flag Avas put out by Kron, and no torpedoes or anything to giA-e notice of danger ahead. In the American and English Encyclopedia of Law (volume 20 [2d Ed.] p. 120) the rule is thus stated: “'Since the master is under a special duty to inspect and in\restigate risks to Avkich the servant is exposed, and since the servant may rely upon the performance of this duty, the fáct that the servant proceeds under the orders of the master in performing an act Avhereby he is exposed to unusual danger renders the master liable for a resulting injury to the servant, unless the risk of the act was fully realized by the servant, and was so apparent that no man of ordinary prudence, situated as he was, would have undertaken it.” A number of cases are collected sustaining the text. See, also, to same effect, 1 Thomp. Neg., sections 192, 412. In section 445, it is said: “Where the negligence of one person has prepared a risk for another, and that other, proceeding in the discharge of his duty or in the course of his business, accepts the risk, and is hurt [811]*811in consequence of so doing, the question of whether he is guilty of contributory negligence is almost always a question of fact for the jury/" A servant is not called upon to set up his unaided judgment against that of his superiors. He may rely upon their orders. Ward v. Railroad Co., (23 R., 1326) (65 S. W., 2). As has been well said, the servant's dependent and inferior position is to be taken into consideration: and if the master gives him positive orders to go on with the work, and the servant is inj vu-ed, he may recover, unless the work was so obviously dangerous that a servant of ordinary prudence, situated as lie was, would not have obeyed. •
In this case Long was a mere laborer.. The section foreman under whose direction he worked represented the master. and it was Long's duty to obey his orders in the usual course of business. When he received an order it was not his duty to sit in judgment upon its propriety, or to enter into a discussion with him as to the facts upon which it was based. He had a right to presume that improper orders would not he given, and to assume that the section foreman would not direct him to take risks that were improper. If he was injured while obeying the orders of his superior and by reason of bis negligence, lie may recover, unless the risk was such that a person of ordinary prudence, situated as Long ivas, would not have taken it. In determining whether Long should have obeyed the orders of liis superior, it must be borne in mind that the crew were out on the road, and that if Long had not obeyed lie could not have remained with the crew. 8o far as appears, he knew nothing about the running of the trains, and was not required by bis employment to know about them. It was the section boss’ duty to control the movements of the crew, and to do this with proper regard to their safety. Long had a right to [812]*812rely on his superior knowledge and judgment- as to the safety of proceeding with the hand car under the circumstances, unless ihe facts actually known to Long were such-that a servant of ordinary prudence, situated as he was, would not have taken the risk, and this was a question for the jury. Tn an exhaustive note on this subject to the case of Dallemand v. Saalfeldt, 48 L. R. A., 755 (s. c. [Ill Sup.] 51 N. E., 645, 67 Am. St. Rep., 214), the editor, after pointing out the conflict of authority on the question, says: “Some judges, following out the analogy of the doctrine stated in the last section, have held that the rule by which contributory negligence is inferred, as matter of law, from the undertaking or continuance of work which entails an abnormal l'isk of which the servant was aware, involves the corollary that the addition of the element of a direct order will not prevent the defense from taking effect if the servant understood the perils to which he would be exposed in obeying that order. . . . But by almost all courts, including those who apply the rule- just referred to (see Pennsylvania, Illinois and North Carolina cases cited infra), it' is held that the fact of the servant’s having been directly ordered to do the act which caused the injury introduces into the situation a differentiating circumstance, which will render his contributory negligence a question for the jury in nearly every conceivable state of the evidence. It does not follow that because the servant could justify a disobedience of the order he is guilty of negligence in obeying it. . . . Hence we find it laid down in a leading caso that where, in obedience to an order, the servant performs a duty which, though dangerous, is not so dangerous as to threaten immediate injury, or where it is reasonably probable that the work may be safely done by using extraordinary caution or skill, he may recover if [813]*813injured. ... in other cases the same principle is expressed by a restrictive form of statement, the servant being held entitled to obey a specific command of his superior without necessarily incurring the consequences of contributory negligence, unless the execution of that command involves a hazard which no ordinarily prudent- person would have subjected himself to.” Tn support of these principles, the following instances are given in which the servant was allowed to recover: Where a section hand obeys orders to take a hand car off the track, when a train is close at hand; or where a section man undertook to get two stones off the track when a train was approaching; or where a brakeman jumped from a moving train; or where a laborer was injured by the fall of a large wheel which he was helping to move down an- incline; or by the caving of a bank; or by the explosion of a blast over which he was ordered to work. These principles control this case. If a gravel train had stopped at Ririey that morning, and waited for the passenger until it was past due, and the conductor had then concluded to. go on to Otter creek ahead of the 'passenger train and had ordered the hands aboard it would hardly be maintained > that if the train had been run into by the passenger before it reached Otter creek, and one of the laborers killed, the company would not'be responsible. Yet this is, in substance, the case we have; for the section boss has as full control of the hand car as the conductor has of the gravel train. The hands on the gravel train would not be required to inquire what orders the conductor had, or what emergency induced him to go forward, or what reason he had for supposing it to be safe. All this applies equally to the'laborer working under the section boss. Long was simply riding on the hand car in obedience to the orders of his boss, who was [814]*814taking kim to the place of work, and for some reason was anxious to get there as quickly as he could.
Judgment reversed, and cause remanded, with directions to grant appellant a new trial.
Whole court sitting.
Judges DuRelle and O’Rear dissent. •