Townsend, J.
(after stating the facts). The appellant (defendant beloAv) has filed 11 specifications of error, which its counsel discusses under three subheads.
Under the first subhead he discusses the specifications of error numbered 2, 3, 4, 6, 7, 8, 9, and 10. After stating [538]*538the age of plaintiff, and that he had worked upon the same section for 17 months, that the hand car in question had been in use for 14 or 15 months by this particular gang and on this particular section, and that no accident had occurred to any one using the car, and that the car had never been derailed prior to this accident, counsel say the court should have instructed the jury as requested by him, as follows: “Even though the jury believe that the accident in question in this case was occasioned by the defective condition of the hand car, and that such defect was known to exist by the railway company, and that it was negligent in providing the same for the use of the section crew in question, yet, if the plaintiff knew, or by the exercise of ordinary care and prudence could have discovered or known, of the defective condition of the hand car, he will be held to have assumed the risk of using such defective hand car, and cannot recover in this case. The jury is instructed that if you find from the evidence in this calie that the hand car in question had been used upon the section of the railway where the accident occurred some time previous to the accident in question, and that the plaintiff, Wilhoit, was frequently engaged in riding upon, assisting in operating, and otherwise using said hand car, and had an opportunit3, with the use of ordinary care on the part of the plaintiff, to have discovered the condition of the hand car, that even though you may find that the railway company was negligent in failing to provide a proper hand car for its employes, that the plaintiff will be held to have assumed all risk of using said hand car, and cannot recover in this case. The jury is instructed in this case that if' you find from the evidence that the hand car in question was used by the section crew on the section of the railway compan3>- where the accident in question occurred for some “months prior to the time of the accident, and said hand car did not during that time jump the track, and during said time no other accident happened [539]*539to said hand car, there can be no negligence attributed to-the defendant in this case because of the condition of said hand car” — all of which requests were refused, and erroneously-instructed the jury as follows: “It is claimed by defendant in this case that plaintiff in remaining in its employ and riding-on the hand car after knowledge of its defective condition was guilty of negligence which contributed to his injury. The burden of proving this is on the defendant. It may establish this either by the evidence it introduces, or by plaintiff's evidence. Plaintiff claims that he was unskilled in machinery,, and did not know what the nature of the defects were. You are instructed that it was not the duty of plaintiff to inspect the car or look for defects therein, that plaintiff had a right to rest on the assumption that the hand car in question was free from defects discoverable by proper inspection, and that-it had been properly inspected by a competent inspector. Neither was the plaintiff called upon to pass judgment on the railroad's methods of business, or to conclude as to their adequacj. He had a right to assume that the defendant had used reasonable cai’e to furnish a safe hand car, and to deal with the hand car relying on the fact that it was safe.” Counsel contends that the true rule as to the assumption of,' risk is laid down in the case of St. Louis Cordage Co. vs Miller, 126 Fed. 495, 61 C. C. A. 477, 63 L. R. A. 551, and the same, being a decision of the Circuit Court of Appeals for the Eighth Circuit, is binding upon this court.
Under the second subhead appellant insists the trial court erred in instructing the jury that it was the duty of the railway company to establish by a preponderance of evidence the contributory negligence of the appellee, which is specification of error No. 5. Counsel for appellee contends that for the reason that appellant in his motion for new trial in the court- below failed to state the grounds for a new trial separately, [540]*540.and in separate paragraphs (see Hughes Bros. Mfg. Co. vs Reagan [I. T.] 69 S. W. 940), so that “each error complained of should be stated as a separate ground, and they should be stated so specifically as to 'direct the attention of the court and opposing counsel to the precise errors complained of, a mere statement •of the ground without further specifications will therefore be insufficient,” and that in consequence the first, second, third-, .and fifth grounds of the motion for new trial were not well taken as being too general. It will be observed that nowhere in the motion for a new trial is there any complaint made •of the action of the court in giving any of the instructions that it gave of its own'motion. However, the fifth and sixth .assignments of error in this court are predicated -upon the giving in charge by the court of its own motion of an instruction on the subject of the burden of establishing contributory negligence. It does not seem that under the rulings this could now be considered by .this court.
The second, third, and fourth specifications of error, ■under the same rule, could not be urged in this court, as they .are based on the fifth assignment in the motion for new trial, .as follows: “That the court erred in refusing to instruct the jury as requested by the defendant, and to which action of the court below the defendant duly excepted.” And under the same proposition specifications 7, 8, 9, and 10 should not be considered, as the specification below was a general one, as follows: “That the court erred in the several instructions ..given to the jury at the request of the plaintiff, to which action •of the court the defendant duly excepted.” If this decision in Hughes Bros, vs Reagan, decided by Judge Clayton, is correct, and is to be followed, it only leaves to be considered the first specification of error, which is based upon the fourth .ground of motion for new trial, and is as follows: “That the court, erred in refusing to instruct the jury to return a verdict [541]*541for the defendant” — together with the eleventh specification-of error, which is based on the action of the court in overruling the motion for new trial; and these two specifications are discussed by appellant under his third subhead. So far as the-issues, presented by the pleadings in this case for the appellants-as a defense, are alleged, it is a denial of the allegations of the appellee and the negligence of the appellee. The defense of assumption of risk is not tendered by the appellant in his answer. In St. Louis Cordage Co. vs Miller, 126 Fed. 497, 61 C. C. A. 479, 63 L. R. A. 551, the court said: “The defendant did not plead in this case that the plaintiff was guilty of contributory negligence. Its only defense was that the rapidly revolving cogs were seen and known by the plaintiff, that the danger from them was apparent, and that she assumed the risk of it. These are the questions, therefore, which the-instruction to the jury presents.”
It thus appears that the defense of contributory negligence presented in this case was not before the court in that case.
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Townsend, J.
(after stating the facts). The appellant (defendant beloAv) has filed 11 specifications of error, which its counsel discusses under three subheads.
Under the first subhead he discusses the specifications of error numbered 2, 3, 4, 6, 7, 8, 9, and 10. After stating [538]*538the age of plaintiff, and that he had worked upon the same section for 17 months, that the hand car in question had been in use for 14 or 15 months by this particular gang and on this particular section, and that no accident had occurred to any one using the car, and that the car had never been derailed prior to this accident, counsel say the court should have instructed the jury as requested by him, as follows: “Even though the jury believe that the accident in question in this case was occasioned by the defective condition of the hand car, and that such defect was known to exist by the railway company, and that it was negligent in providing the same for the use of the section crew in question, yet, if the plaintiff knew, or by the exercise of ordinary care and prudence could have discovered or known, of the defective condition of the hand car, he will be held to have assumed the risk of using such defective hand car, and cannot recover in this case. The jury is instructed that if you find from the evidence in this calie that the hand car in question had been used upon the section of the railway where the accident occurred some time previous to the accident in question, and that the plaintiff, Wilhoit, was frequently engaged in riding upon, assisting in operating, and otherwise using said hand car, and had an opportunit3, with the use of ordinary care on the part of the plaintiff, to have discovered the condition of the hand car, that even though you may find that the railway company was negligent in failing to provide a proper hand car for its employes, that the plaintiff will be held to have assumed all risk of using said hand car, and cannot recover in this case. The jury is instructed in this case that if' you find from the evidence that the hand car in question was used by the section crew on the section of the railway compan3>- where the accident in question occurred for some “months prior to the time of the accident, and said hand car did not during that time jump the track, and during said time no other accident happened [539]*539to said hand car, there can be no negligence attributed to-the defendant in this case because of the condition of said hand car” — all of which requests were refused, and erroneously-instructed the jury as follows: “It is claimed by defendant in this case that plaintiff in remaining in its employ and riding-on the hand car after knowledge of its defective condition was guilty of negligence which contributed to his injury. The burden of proving this is on the defendant. It may establish this either by the evidence it introduces, or by plaintiff's evidence. Plaintiff claims that he was unskilled in machinery,, and did not know what the nature of the defects were. You are instructed that it was not the duty of plaintiff to inspect the car or look for defects therein, that plaintiff had a right to rest on the assumption that the hand car in question was free from defects discoverable by proper inspection, and that-it had been properly inspected by a competent inspector. Neither was the plaintiff called upon to pass judgment on the railroad's methods of business, or to conclude as to their adequacj. He had a right to assume that the defendant had used reasonable cai’e to furnish a safe hand car, and to deal with the hand car relying on the fact that it was safe.” Counsel contends that the true rule as to the assumption of,' risk is laid down in the case of St. Louis Cordage Co. vs Miller, 126 Fed. 495, 61 C. C. A. 477, 63 L. R. A. 551, and the same, being a decision of the Circuit Court of Appeals for the Eighth Circuit, is binding upon this court.
Under the second subhead appellant insists the trial court erred in instructing the jury that it was the duty of the railway company to establish by a preponderance of evidence the contributory negligence of the appellee, which is specification of error No. 5. Counsel for appellee contends that for the reason that appellant in his motion for new trial in the court- below failed to state the grounds for a new trial separately, [540]*540.and in separate paragraphs (see Hughes Bros. Mfg. Co. vs Reagan [I. T.] 69 S. W. 940), so that “each error complained of should be stated as a separate ground, and they should be stated so specifically as to 'direct the attention of the court and opposing counsel to the precise errors complained of, a mere statement •of the ground without further specifications will therefore be insufficient,” and that in consequence the first, second, third-, .and fifth grounds of the motion for new trial were not well taken as being too general. It will be observed that nowhere in the motion for a new trial is there any complaint made •of the action of the court in giving any of the instructions that it gave of its own'motion. However, the fifth and sixth .assignments of error in this court are predicated -upon the giving in charge by the court of its own motion of an instruction on the subject of the burden of establishing contributory negligence. It does not seem that under the rulings this could now be considered by .this court.
The second, third, and fourth specifications of error, ■under the same rule, could not be urged in this court, as they .are based on the fifth assignment in the motion for new trial, .as follows: “That the court erred in refusing to instruct the jury as requested by the defendant, and to which action of the court below the defendant duly excepted.” And under the same proposition specifications 7, 8, 9, and 10 should not be considered, as the specification below was a general one, as follows: “That the court erred in the several instructions ..given to the jury at the request of the plaintiff, to which action •of the court the defendant duly excepted.” If this decision in Hughes Bros, vs Reagan, decided by Judge Clayton, is correct, and is to be followed, it only leaves to be considered the first specification of error, which is based upon the fourth .ground of motion for new trial, and is as follows: “That the court, erred in refusing to instruct the jury to return a verdict [541]*541for the defendant” — together with the eleventh specification-of error, which is based on the action of the court in overruling the motion for new trial; and these two specifications are discussed by appellant under his third subhead. So far as the-issues, presented by the pleadings in this case for the appellants-as a defense, are alleged, it is a denial of the allegations of the appellee and the negligence of the appellee. The defense of assumption of risk is not tendered by the appellant in his answer. In St. Louis Cordage Co. vs Miller, 126 Fed. 497, 61 C. C. A. 479, 63 L. R. A. 551, the court said: “The defendant did not plead in this case that the plaintiff was guilty of contributory negligence. Its only defense was that the rapidly revolving cogs were seen and known by the plaintiff, that the danger from them was apparent, and that she assumed the risk of it. These are the questions, therefore, which the-instruction to the jury presents.”
It thus appears that the defense of contributory negligence presented in this case was not before the court in that case. The court in that case clearfy presents the distinction existing between the defenses as follows: “Assumption of risk is the voluntary contract of an ordinarily prudent servant to take the chances of the known or obvious dangers.of his employment, and to relieve his master of liability therefor. Contributory negligence is the causal action or omission of the servant without ordinary care of consequences. The one-rests in contract, the other in tort. Contributory negligence-is no element or attribute of assumption of risk. The latter does not prevail because the servant was or was not negligent in making his contract and in exposing himself to the defect and danger which injured him, but because he voluntarily agreed to take the risk of them. No right of action in his favor in such a case can arise against the master, because the latter violates no duty in failing to protect the servant against [542]*542risks and dangers which the latter has voluntarily agreed to assume and to hold the former harmless from. This clear distinction between assumption of risk and contributory negli.gence has been repeatedly' announced and constantly maintained in the Federal Courts and in most of the courts of the states. The law upon this subject which controls this case and all eases of this character in the Federal Courts is stated in Washington, etc., R. Co. vs McDade, 135 U. S. 554, 570, 10 Sup. Ct. 1044, 34 L. Ed. 235, in the quotation which follows, and, so far as our investigation has extended, the rules of law thus announced have never been disregarded or modified by that court in any subsequent decision: ‘Neither individuals nor corporations are bound, as employers, to insure the absolute safety of the machinery or mechanical" appliances which they provide for the use of their employes; nor are they bound to supply the best and safest or newest of those appliances for the purpose of securing the safety of those who are thus employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service by providing them with machinery reasonably sáfe and suitable for the .use of the latter. If the employer or master fails in this duty of precaution and care, he is responsible for any injury winch may happen through a defect of machinery which was, or ought to have been, known to him, and was unknown to the employe or servant. But, if the employe knew of the defect in the machinery from which the injury happened, and yet remained in the service and continued to use the machinery without giving any notice thereof to the employer, he must be deemed to have assumed the risk of all danger reasonably to be apprehended from such use, and is entitled to no recovery. And, further, if the employe himself has been wanting in such reasonable care and prudence as would have prevented the happening of the accident, he is guilty of contributory negligence, and the employer is thereby ab[543]*543solved from responsibility for the injury, although it was occasionéd by the defect of the machinery, through the negligence of the employer.’ Here the two defenses of assumption of risk and contributory negligence are separately stated, and the first failed because the servant ‘did not know that the belt in which he was caught had been recently and perhaps imperfectly repaired,’ and ‘was wholly unaware of the danger attendant upon putting on the belt by hand,’ while the defense of contributory negligence failed because the defendant failed'to satisfy the jury that the servant was not exercising ordinary care in placing the belt upon the pulley. In Union Pacific Ry. Co. vs O’Brien, 161 U. S. 451, 454, 456, 16 Sup. Ct. 618, 40 L. Ed. 766, the Supreme Court sustained a refusal to submit an instruction to the jury upon the express ground that it confused these two distinct defenses — assumption of risk and contributory negligence. Its words were: ‘The second instruction was properly refused because it confused two distinct propositions, that relating to the risks assumed by an employe in entering a given service, and that relating to the amount of vigilance that should be exercised under given circumstances.’ ” Also: “Assumption of risk and contributory negligence are separate and distinct defenses. The one is based on contract, the other on tort. The former is not conditioned or limited by the existence of the latter, and is alike available whether the risk assumed is great or small, and whether the danger from it is imminent and certain or remote and improbable.” The appellee in this action seeks a recovery by reason of the alleged negligence of the appellant in furnishing a hand car that was not safe; “that this plaintiff was not skilled in machinery and was not aware of the condition of said hand car; that, in fact, the said hand ear was very badly worn and the rims of the wheels were not sufficient to hold it on the track, and the axles and boxes of said hand car were so badly worn that said hand car was liable at any time [544]*544to jump the track; that one of the wheels of said car was out of line in such way as to have a tendency to climb the rail and throw the car off the track;” that while appellee, in the exercise of due care in pumping said car, “said car, as a result of its defective condition as aforesaid, caused by defendant’s negligence in furnishing the same in said condition and failing to inspect same 'and to repair the same, jumped the track just north of a bridge, about 1^ miles south of Big Cabin, I. T.”; that plaintiff was thrown over a bridge and injured; and “that the proximate cause of all his said injuries to this plaintiff was neglect of the defendant, in that it did not furnish a hand car suitable and safe for the purpose, and did not inspect it so as to ascertain its condition.” The only defense pleaded is contributory negligence. In Beach on Contributor;' Negligence, § 7, the same is defined as follows: “Contributory negligence, in its legal signification, is such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or co-operating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of. To constitute contributory negligence, there must be.a want of ordinary care on the part of the plaintiff, and a proximate connection between that and the injury. Perhaps, besides these two, there are no other necessary elements. ■ Certainly they are -the two points of difficulty in the consideration of the question; ‘Did the plaintiff exercise ordinary care under the circumstances?’ ‘Was there a proximate connection between his act or omission and the hurt he complains of?’ These are the vital questions when contributory negligence is the issue.”
In actions for recovery of damages by reason'- of negligence, the facts of each particular case must be carefully considered: The court very properly instructed the jury in this case that it was a duty resting upon the appellant to furnish [545]*545reasonably safe machinery to its employes, and to maintain the same in reasonable repair. “The care demanded of a railroad company implies the exercise of reasonable diligence. As between employer and employe, it implies such watchfulness, caution, and foresight as under all circumstances of the particular service ought to be exercised by careful and prudent men." The burden was upon appellant to show that appellee was guilty of contributory negligence by riding upon the car and remaining in the employ of appellant. The, proof was submitted to the jury; and, while there was some conflict in the testimony as to the hand car being defective, no one seémed to be absolutely certain what it was. The appellee testified he did not know, except, that it was hard to pump. He was also using ordinary care in the performance of his duty. One of the witnesses, who was also an employe, applied to the foreman for permission to repair the hand car, but the foreman declined to permit him to do so, and said he would attend to that. It was shown that, the foreman was authorized and directed to inspect, the car. He sa}s he looked to see that the brasses were all right. But not until after the accident, when the hand car was taken apart, did any one know the extent of the defect. It was then found to be in an exceedingly defective condition.
It is insisted by appellant that the appellee and the foreman were fellow servants, and that, therefore, there could be no recovery. This is unquestionably correct, but it is held in the case of Hough vs Texas & P. Ry. Co., 100 U. S. 213, 25 L. Ed. 612, that where the master imposes upon a co-servant the performance of a duty which the master owes to the employes, and that co-servant, is negligent in performing that duty, the master must respond for any injuries following therefrom, and “the corporation is equally chargeable whether the negligence was in originally failing to provide or in afterwards [546]*546failing to keep its machinery in safe condition.” In Union Pacific R. R. Co. vs .Snyder (U. S.) 14 Sup. Ct. 756, 38 L. Ed. 597, the court says it is the duty of the company to inspect, and that this duty cannot be delegated so as to shield the companj'' from liability when a servant is injured, and that the company cannot claim that it has performed its duty in this regard when it has furnished sufficient and competent inspectors. In Northern Pac. R. R. Co. vs Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 994, the court'say: “The general ride is that those entering into the service of a common master become thereby engaged in a common service and are fellow servants, and, prima facie, the common master is not liable for the negligence of one of his servants which has resulted in an injury to a fellow servant. There are, however,- some duties which a master owes, as such, to a servant entering his employment. He owes the duty to provide such servant with a reasonably safe place to work in, having reference to the character of the employment in which the servant is engaged. He also owes the duty of providing reasonably safe tools, appliances, and machinery for the accomplishment of the work necessary to be done. He must exercise proper diligence in the employment of reasonably safe and competent men to perform their respective duties, and it has been held in many states that the master owes the further duty of adopting and promulgating safe and proper rules for the conduct of his business, including the government of the machinery and the running"jof trains on a railroad track. If the master be neglectful in any of these matters, it is a neglect of a duty which he personally owes to his employes, and, if the employe suffer damage on account thereof, the master is liable. If, instead of personally performing these obligations, the master engages another to do them for him, he is liable for the neglect of that other, which, in such case, is not the neglect of a fellow servant, no_matter what his position as to other matters, but is the [547]*547neglect of the master to do those things which it is the duty of the master to perform as such.” Mr. Thompson on Negligence, § 4445, says: “Under the principles of this chapter, if a railway company fails to exercise reasonable care and skill in providing and maintaining hand cars which are reasonably safe and free from dangerous defects, in consequence of which failure of duty their employes, required to use such cara, are injured, they will be liable to them in damages; nor will the fact that the section foreman in charge of the hand car, whose duty it was to keep it in repair, was a fellow servant of the servant sustaining the injury, avert the liability of the company, since the proper inspection and reparation of such cars is one of the absolute duties which the law puts upon the master in favor of his servants.”
The appellant objected to the charge of the court that" the burden of proof was on the defendant to show contributory negligence. In Northern Pacific R. R. Co. vs Mares, 123 U. S. 721, 8 Sup. Ct. 327, 31 L. Ed. 296, it is said: “ ‘And the defendant having alleged negligence on the part of the plaintiff, denominated- “contributory negligence,” it must be established by preponderance of evidence to warrant you in finding it. .The objection, as we understand it, is that it was calculated to mislead the jury by not only putting the burden of proof of the fact on the defendant, but also in assuming that they must look for that proof only to the testimony adduced by the defendant. We do not, however, think it possible that any jury could be misled in that way. The whole effect of the charge is that the fact in question must be established from the whole testimony, by a preponderance of evidence in its favor. Where the burden of proof rested was immaterial at that stage of the cause when all the evidence was in, and the jury certainly could not suppose that they were confined, in their examination of that question, to the [548]*548testimony adduced only on the part of the defendant. On the whole case it abundantly and satisfactorily appears that the cause was submitted to the jury, upon the charge of the court, fairly, and with an accurate statement of the law applicable to the relation between the parties. We find no error in the record. The judgment is accordingly affirmed.” The charge of the court was: “It is claimed by defendant' in this ease that plaintiff in remaining in its employ and riding on the hand car after knowledge of its defective condition was guilty of negligence which contributed to his injury. The' burden of proving this is on'the defendant. It may establish this either by the evidence it introduces or by plaintiff’s evidence” — which is in harmony with the foregoing citation. See, also, 93 U. S. 291, 23 L. Ed. 898, in the case of Indianapolis & St. Louis R. R. Co. vs Horst.
Much discussion by the counsel on both sides of this case is devoted to the defense of the assumption of risk, which in our judgment was not an issue presented by the pleadings. In Oregon Short Line & U. N. Ry. Co. vs Tracy, 66 Fed., page 936, 14 C. C. A. 204, the. court said: “It is assigned as error that the court excluded evidence offered by the defendant tending to prove that the plaintiff knew the condition of the track where the accident occurred, and that he therefore assumed the risks incident thereto. The defendant had not pleaded such knowledge upon the part of plaintiff, and the ruling of the court was in accordance with the doctrine es-established by the authorities. 14 Am. & Eng. Enc. Law, 844; Mayes vs Railroad Co., 63 Iowa, 562, 14 N. W. 340, and 19 N. W. 680; Hulehan vs Railroad Co., 68 Wis. 520, 32 N. W. 529; Railroad Co. vs Orr, 84 Ind. 50. The doctrine of these decisions is that the assumption of the risk after knowledge of the defects is matter of defense in the nature of a waiver of the right to recover for the defendant’s negligence, and [549]*549must be pleaded.” The evidence was conflicting as to the condition of the hand car, and as to its proper inspection. A peremptory instruction would have been improper, and the court, in our judgment, acted properly in submitting the case to the jury. We do not feel at liberty to disturb their verdict, and the judgment of the court in refusing a new trial, and rendering judgment on the verdict, was correct, and is affirmed.
Clayton, J., concurs. Lawrence, J., dissents.