BLAND, P. J.
(after stating the facts). — 1. The first question presented for decision is whether or not the court erred in leaving it to the jury to find whether or not the defendant was negligent in failing to block the guard rail in its yards w'here the deceased was run over and'killed. The rulings of the Federal courts are to the effect that, as railroad companies are charged with negligence if they block their guard rails, because employees are liable to stub their toes and fall over the blocks, and they are charged with negligence if they fail to block them, because employees are liable to put [158]*158their feet between the rails and get them caught, to their injury, “the railroad companies axe at liberty to determine for themselves, in the light of their experience, which form of frog is preferable, so'long as both forms are in common use, and that it is not competent for a jury to hold a railroad company guilty of negligence because it adopts one form of frog in preference to another.” [Gilbert v. Railroad, 128 Fed. l. c. 513; Kilpatrick v. Railroad, 131 Fed. 11; Southern Pacific Company v. Seley, 152 U. S. l. c. 154; McManus v. Oregon Short Line, No. 4973, opinion by Adams, judge Eighth Federal Circuit, who nonsuited the plaintiff on the same evidence as is in the record before us.]
In Lake Shore & Michigan Southern R. R. Co. v. McCormick, 74 Ind. 440, it was held the employee assumed the risk of unblocked frogs, if he knew they were unblocked and went between the cars contrary to the rules of the company to perform a service that might have been performed as well without going between the cars.
Numerous authorities might be cited holding that where there is a safe and an unsafe way open to a servant to perform a particular duty and he chooses the unsafe way and is injured, he Avill be deemed guilty of contributory negligence as a matter of law.
In Titus v. Railroad, 136 Pa. St. l. c. 626, Mitchell, J., writing the opinion of the court, said“All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for, in regard to the style of implement or nature of the mode of performance of any work, ‘reasonably safe’ means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable, and employers axe not insurers. They are liable for the consequences, not of danger but of negligence; and the unbending test of negligence in methods, machinery, and [159]*159appliances is the ordinary usage of the business. No man is held by law’ to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall, in effect, dictate the customs or control the business of the community.” This case is approvingly cited in Rees v. Hershey, 163 Pa. St. 253.
Some of the state legislatures have enacted statutes requiring the blocking of frogs at terminal and other railroad yards. Our Legislature passed an act (sec. 1123, R. S. 1899) in 1891, requiring all railroad companies in this State “to adopt, put in use and maintain the best known appliances or inventions to fill or block all switches, frogs and guard rails on their roads, in all' yards, divisional, and terminal stations, and where trains are made up, to prevent as far as possible the feet of employees or other persons from being caught therein.”
In Huhn v. Railroad, 92 Mo. 440 (1887), 4 S. W. 937, the plaintiff’s husband had been the defendant rail-. road company’s yardmaster at Independence, Missouri, for three or four months. In stepping in between two cars to uncouple them, he put one of his feet into an unblocked frog where it became fastened and he was run over and killed. The allegation of negligence was the failure of the company to block the frog. The trial court gave the following instruction:
“Before the plaintiff can recover in this action, it must appear that the accident, resulting in the death of Charles Huhn, was occasioned by the want of ordinary care on the part of the defendant railroad company in [160]*160protecting its employees, in that it failed to block the track and guard rail at the point complained of, and that, by reason thereof, the said Huhn was killed, in the manner charged in the petition; and further, it must appear that the injury was not occasioned by the carelessness and negligence of said Huhn, which directly contributed to said injury. The ordinary care demanded of the railway company is that degree of care which ordinarily prudent men, in operating railroads, would, and do generally exercise, under similar circumstances, towards the protection of their employees; and as to whether or not Charles Huhn was guilty of contributory negligence, resulting in his death, it is your duty to consider what knowledge he had of the absence of a block to the said guard rail, and, if he had knowledge thereof, whether, at the time, he was acting as a prudent man would under similar circumstances.”
The judgment was for plaintiff. On appeal the Supreme Court approved the instruction and affirmed the judgment.
In Alcorn v. Railroad, 108 Mo. 81, 18 S. W. 188, a majority of the court held whether it was or was not negligence in a railroad company not to block its guard rails, was a question for the jury.
In the recent case of Smith v. Fordyce, 190 Mo. l. c. 24-5, Gantt, J., in respect to the duties of railroad companies toward their employees, said: “The rule is well settled in this State that there is no obligation on the part of the master to furnish absolutely safe appliances, nor is a railroad bound to adopt every new invention, though an actual improvement it may be, but it is the duty of the company to use reasonable care and precaution in procuring and keeping its appliances in good condition and order, and it cannot remain wholly indifferent to the improvements of the day. [Huhn v. Railroad, 92 Mo. 440; Hamilton v. Coal Co., 108 Mo. 364, 18 S. W. 977.]”
The laws of the State of Idaho (if it has any) in [161]*161regard to blocking guard rails, were not offered in evidence. The United States acquired territory, out of which the State of Idaho was carved, from Spain, by the treaty of February 22, 1819, promulgated February 22, 1821, between the United States and the King of Spain, hence Idaho was never subject to the laws of England, and the presumption cannot be indulged that the common law is in force in that State; and, in the absence of proof of its laws, we must apply the laws of this State in determining whether or not it was proper to submit to the jury to find whether the defendant was or was not negligent in failing to block its guard rails. [Flato v. Mulhall, 72 Mo. 522; McDonald v. Life Assn., 154 Mo. 618, 55 S. W. 999; Hurley v. Railroad, 57 Mo. App. 675; Witascheck v. Glass, 46 Mo. App. l. c.
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BLAND, P. J.
(after stating the facts). — 1. The first question presented for decision is whether or not the court erred in leaving it to the jury to find whether or not the defendant was negligent in failing to block the guard rail in its yards w'here the deceased was run over and'killed. The rulings of the Federal courts are to the effect that, as railroad companies are charged with negligence if they block their guard rails, because employees are liable to stub their toes and fall over the blocks, and they are charged with negligence if they fail to block them, because employees are liable to put [158]*158their feet between the rails and get them caught, to their injury, “the railroad companies axe at liberty to determine for themselves, in the light of their experience, which form of frog is preferable, so'long as both forms are in common use, and that it is not competent for a jury to hold a railroad company guilty of negligence because it adopts one form of frog in preference to another.” [Gilbert v. Railroad, 128 Fed. l. c. 513; Kilpatrick v. Railroad, 131 Fed. 11; Southern Pacific Company v. Seley, 152 U. S. l. c. 154; McManus v. Oregon Short Line, No. 4973, opinion by Adams, judge Eighth Federal Circuit, who nonsuited the plaintiff on the same evidence as is in the record before us.]
In Lake Shore & Michigan Southern R. R. Co. v. McCormick, 74 Ind. 440, it was held the employee assumed the risk of unblocked frogs, if he knew they were unblocked and went between the cars contrary to the rules of the company to perform a service that might have been performed as well without going between the cars.
Numerous authorities might be cited holding that where there is a safe and an unsafe way open to a servant to perform a particular duty and he chooses the unsafe way and is injured, he Avill be deemed guilty of contributory negligence as a matter of law.
In Titus v. Railroad, 136 Pa. St. l. c. 626, Mitchell, J., writing the opinion of the court, said“All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for, in regard to the style of implement or nature of the mode of performance of any work, ‘reasonably safe’ means safe according to the usages, habits, and ordinary risks of the business. Absolute safety is unattainable, and employers axe not insurers. They are liable for the consequences, not of danger but of negligence; and the unbending test of negligence in methods, machinery, and [159]*159appliances is the ordinary usage of the business. No man is held by law’ to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall, in effect, dictate the customs or control the business of the community.” This case is approvingly cited in Rees v. Hershey, 163 Pa. St. 253.
Some of the state legislatures have enacted statutes requiring the blocking of frogs at terminal and other railroad yards. Our Legislature passed an act (sec. 1123, R. S. 1899) in 1891, requiring all railroad companies in this State “to adopt, put in use and maintain the best known appliances or inventions to fill or block all switches, frogs and guard rails on their roads, in all' yards, divisional, and terminal stations, and where trains are made up, to prevent as far as possible the feet of employees or other persons from being caught therein.”
In Huhn v. Railroad, 92 Mo. 440 (1887), 4 S. W. 937, the plaintiff’s husband had been the defendant rail-. road company’s yardmaster at Independence, Missouri, for three or four months. In stepping in between two cars to uncouple them, he put one of his feet into an unblocked frog where it became fastened and he was run over and killed. The allegation of negligence was the failure of the company to block the frog. The trial court gave the following instruction:
“Before the plaintiff can recover in this action, it must appear that the accident, resulting in the death of Charles Huhn, was occasioned by the want of ordinary care on the part of the defendant railroad company in [160]*160protecting its employees, in that it failed to block the track and guard rail at the point complained of, and that, by reason thereof, the said Huhn was killed, in the manner charged in the petition; and further, it must appear that the injury was not occasioned by the carelessness and negligence of said Huhn, which directly contributed to said injury. The ordinary care demanded of the railway company is that degree of care which ordinarily prudent men, in operating railroads, would, and do generally exercise, under similar circumstances, towards the protection of their employees; and as to whether or not Charles Huhn was guilty of contributory negligence, resulting in his death, it is your duty to consider what knowledge he had of the absence of a block to the said guard rail, and, if he had knowledge thereof, whether, at the time, he was acting as a prudent man would under similar circumstances.”
The judgment was for plaintiff. On appeal the Supreme Court approved the instruction and affirmed the judgment.
In Alcorn v. Railroad, 108 Mo. 81, 18 S. W. 188, a majority of the court held whether it was or was not negligence in a railroad company not to block its guard rails, was a question for the jury.
In the recent case of Smith v. Fordyce, 190 Mo. l. c. 24-5, Gantt, J., in respect to the duties of railroad companies toward their employees, said: “The rule is well settled in this State that there is no obligation on the part of the master to furnish absolutely safe appliances, nor is a railroad bound to adopt every new invention, though an actual improvement it may be, but it is the duty of the company to use reasonable care and precaution in procuring and keeping its appliances in good condition and order, and it cannot remain wholly indifferent to the improvements of the day. [Huhn v. Railroad, 92 Mo. 440; Hamilton v. Coal Co., 108 Mo. 364, 18 S. W. 977.]”
The laws of the State of Idaho (if it has any) in [161]*161regard to blocking guard rails, were not offered in evidence. The United States acquired territory, out of which the State of Idaho was carved, from Spain, by the treaty of February 22, 1819, promulgated February 22, 1821, between the United States and the King of Spain, hence Idaho was never subject to the laws of England, and the presumption cannot be indulged that the common law is in force in that State; and, in the absence of proof of its laws, we must apply the laws of this State in determining whether or not it was proper to submit to the jury to find whether the defendant was or was not negligent in failing to block its guard rails. [Flato v. Mulhall, 72 Mo. 522; McDonald v. Life Assn., 154 Mo. 618, 55 S. W. 999; Hurley v. Railroad, 57 Mo. App. 675; Witascheck v. Glass, 46 Mo. App. l. c. 215.] Plaintiff offered some evidence tending to show that it was common practice for railroad companies to block their frogs in switch and terminal yards, and that it was negligence in the defendant to leave its guard rails unblocked at such points; and, although the preponderance of the evidence was the other way, it was nevertheless the duty of the court to submit the issue to the jury for determination, under the rule of practice in this State, to the effect that, where there is any substantial evidence, though slight, whether direct or inferential, tending to establish matters in issue, the issue must be submitted to the jury. [Knapp v. Hanley, 108 Mo. App. 353, 83 S. W. 1005; Tapley v. Herman, 95 Mo. App. 537, 69 S. W. 482; Baird v. Railway, 146 Mo. 265, 48 S. W. 78; Gannon v. Gas Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907.] And we conclude that the court did not err in refusing to grant plaintiff’s instruction in the nature of a demurrer to the evidence offered at the close of all the evidence.
2. It is insisted that the evidence conclusively shows that the deceased was guilty of contributory negligence. If he went between the cars to uncouple them, then he [162]*162was guilty of contributory negligence as a matter of law for having chosen a dangerous way to discharge this duty, when he could have performed it in a safe way, to-wit, by using the lever to uncouple the cars. It does not conclusively appear that deceased went between the cars for the purpose of uncoupling them. The air-brake hose could only be detached by going in between the cars, and they were found detached after the deceased was run over. Defendant’s evidence is that the proper time to detach these hose is when the train is standing still and before it begins to switch. But it is not shown that this was done on the occasion the deceased was killed. He had been working in the yards for several months and therefore knew that it was necessary that the hose should be detached, and as it was not necessary to go between the cars to uncouple them, the reasonable inference is that he stepped between them for the purpose of detaching the air-brake hose; and we think the instructions given properly left it to the jury to find from all the facts and circumstances in evidence the purpose for which the deceased stepped between the cars.
3. Under the laws of this State, deceased did not assume the risk of going in between the cars, if it was necessary for him to do so in the performance of any duty he owed the railroad company, his employer; nor was he guilty of contributory negligence as a matter of law, unless the danger was so obvious and glaring that a prudent man would not have undertaken to perform the service. [Blundell v. Mfg. Co., 189 Mo. l. c. 559, 88 S. W. 103.] The absence of blocking between the guard and track rail was not such a danger.
' 4. Since the case was appealed, John Kelly Mc-Manus has departed this life. His death does not abate the suit. It may be continued by the surviving plaintiff under the provisions of sections 858, 859, Revised Statutes 1899. [Prior v. Kiso, 96 Mo. 313, 9 S. W. 898.]
5. The act of Congress regulating interstate commerce has no application whatever to the facts in this [163]*163case, and we think the instructions given the jury fairly submitted all the issues in the case, and properly declared the law as announced by the Supreme Court of this State.
Discovering no reversible error in the record, the judgment is affirmed.
All concur.