BLAND, P. J.
— It is contended by appellant that its instruction in the nature of a demurrer to the evidence should have been given. The court so instructed, and it is conceded that appellant’s liability is governed by the laws of Iowa, the State where the accident occurred. Respondent pleaded specially section 2071- of' the Iowa Code. That section reads as follows: “Every corporation operating a railroad, shall be liable for all' damages sustained by any person, including employees-of such corporation in consequence of the neglect of the-agents,, or by any mismanagement of the engineers, or other employees thereof; and in consequence of the willful wrongs, whether of commission or omission of such agents, engineers or other employees, when such wrongs are in any manner connected with the use and operation of any such railway on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding. ’ ’
The evidence shows that the respondent was not engaged in the operation of a railway, but in the reconstruction of an old and theretofore abandoned railway track, preparatory to a resumption -of its use as a rail[423]*423way.' His employment was not to assist in the operation of a railway and Ms injury was not inflicted by any act of' commission or omission of any agent, engineer or employee of the appellant, in any manner connected with the nse and operation of a railway. Schroeder v. R. R., 41 Iowa 345; Smith v. R. R., 59 Iowa 73. The fellow-servant act (section 2071, snpra) did not furnish the respondent the relief therein provided, nor was the canse tried upon the theory that it came within the provision of that act. In respect to the alleged negligence of the foreman or section boss in permitting the car to be overloaded and in failing to instruct the inexperienced men engaged in the loading of the car, how many rails to put on the car as a proper load, it seems from the Iowa cases that the relation of a laborer and boss or foreman, engaged in the same general service in that State, is that of fellow-servants. In Peterson v. Whitebreast Coal & Mining Company, 50 Iowa 673, the plaintiff was injured through the negligence of Watson, a foreman or boss. The court said: “It does not appear what was the extent of his (Watson’s) authority, except as can be inferred from the terms used in defining it. Certain it is that it is not averred he had authority to discharge other employees or that the defendant was negligent in employing him. ... It makes no difference if the employee receiving the injury is inferior in grade to the one by whose negligence the injury was caused, ’ ’ and held the company not liable for Watson’s negligence. The same rule is announced in Foley v. R. R., 64 Iowa 644; Wilson v. R. R., 77 Iowa 429, and Hathaway v. R. R., 92 Iowa 337.
. The allegation in the petition is that the appellant was negligent in employing inexperienced men to load and push the caí. The evidence is that Tilger was the boss or foreman, under whom the resp.ondent and the other employees who loaded the car worked, and that the car was loaded by his direction and that he was nearby when it was loaded, but there is not a ray of testimony that he was an inexperienced or incompetent man to perform the duty assigned him by appellant.' [424]*424It was also contended by appellant that the only evidence that the car was defective was the fact that it broke down when overloaded. Standing alone this would not be sufficient proof to authorize a recovery. O’Connor v. R. R., 83 Iowa 105; Kuhn v. R. R., 70 Iowa 566. But there is evidence that the car was made of faulty and insufficient material. A section of the sill of the car which broke and caused the rail to fall upon respondent was produced in court on the trial and submitted to a number of experienced and expert persons as to quality and strength of this particular sill, all of whom testified that it was brittle, had been cut from an old or decaying tree, did not possess more than from one-third to one-fourth the resisting power of a good and sound sill of the same size, and that it was unfit for a sill in a push car. The evidence is all one way, that the car was constructed with faulty material, and that the defect was not perceptible to ordinary observation — the defective sill having been painted on the outside so that the kind and character of the wood was not open to ordinary observation. The law in Iowa, as elsewhere, being that' it is the duty of the master to furnish the servants reasonably • safe appliances and tools with which to work (Burns v. R. R., 69 Iowa 450; Cooper v. R. R., 44 Iowa 136; Finch v. Ins. Co., 84 Iowa 321), we hold that there was evidence that the appellant had failed to perform this duty and that the case was properly submitted to the jury.
II. It is alleged in the petition that the appellant built and caused to be built, the car at its own shops and furnished it to respondent and other employees to be used in the reconstruction of the railway. Appellant contends that the respondent should be held to strict proof of this allegation that it built the car.
The instructions ásked by both parties and given by the court, show that the case was submitted to the jury on the theory that it was the duty of the appellant to furnish the respondent with a reasonably safe push car. Por the respondent the jury were instructed that it was the appellant’s duty to select the proper mater[425]*425ials out of which to construct the car and if it did not build the car, that it was its duty to make a reasonable inspection of it before putting it in the hands of the respondent. The court instructed the jury at the request of appellant, that if any defective condition of the car could not be discovered by an inspection on the part of appellant or its agents, plaintiff could not recover.
Having tried the case on the theory that appellant was liable if it negligently furnished respondent with a defective car, the appellant will not be permitted on appeal to insist that the respondent should have been held to strict proof of the allegation that appellant built the car at its own shops, the law being well settled that on appeal parties litigant may be confined to the cause of action they adopted on the trial. Hill v. Meyer Bros. Drug Co., 140 Mo. 433; Stewart v. Outhwaite, 141 Mo. 562; Pope v. Ramsey, 78 Mo. App. (K. C.) 157.
John Mitchell testified that he had been in appellant’s employ for thirteen years and had charge of its car shops at Moberly, Missouri, and built appellant’s push cars, and “supposed he made the car in question,” but could not say positively, as he was not at Bussey where the accident occurred; that cars built at appellant’s shops were furnished for that division. "While this is not direct positive evidence that the car was built by appellant, it was evidence tending to prove that fact, and as appellant did not, as was in its power to do, offer any evidence to show where the car was actually built, or any evidence to show that the car was not built at its shops, it was sufficient to warrant the court in submitting that issue to the jury and to warrant the jury in finding as a fact that defendant did build the car.
III. The appellant contends that the court erred in authorizing a recovery, even though the car was overloaded. The instructions for respondent told the jury in effect that if the car was made of brash and brittle wood and was not reasonably safe for the purposes for which it was being used when loaded with an ordinary load, and for this cause broke down, then the fact that it was overloaded did not absolve appellant from lia
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BLAND, P. J.
— It is contended by appellant that its instruction in the nature of a demurrer to the evidence should have been given. The court so instructed, and it is conceded that appellant’s liability is governed by the laws of Iowa, the State where the accident occurred. Respondent pleaded specially section 2071- of' the Iowa Code. That section reads as follows: “Every corporation operating a railroad, shall be liable for all' damages sustained by any person, including employees-of such corporation in consequence of the neglect of the-agents,, or by any mismanagement of the engineers, or other employees thereof; and in consequence of the willful wrongs, whether of commission or omission of such agents, engineers or other employees, when such wrongs are in any manner connected with the use and operation of any such railway on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding. ’ ’
The evidence shows that the respondent was not engaged in the operation of a railway, but in the reconstruction of an old and theretofore abandoned railway track, preparatory to a resumption -of its use as a rail[423]*423way.' His employment was not to assist in the operation of a railway and Ms injury was not inflicted by any act of' commission or omission of any agent, engineer or employee of the appellant, in any manner connected with the nse and operation of a railway. Schroeder v. R. R., 41 Iowa 345; Smith v. R. R., 59 Iowa 73. The fellow-servant act (section 2071, snpra) did not furnish the respondent the relief therein provided, nor was the canse tried upon the theory that it came within the provision of that act. In respect to the alleged negligence of the foreman or section boss in permitting the car to be overloaded and in failing to instruct the inexperienced men engaged in the loading of the car, how many rails to put on the car as a proper load, it seems from the Iowa cases that the relation of a laborer and boss or foreman, engaged in the same general service in that State, is that of fellow-servants. In Peterson v. Whitebreast Coal & Mining Company, 50 Iowa 673, the plaintiff was injured through the negligence of Watson, a foreman or boss. The court said: “It does not appear what was the extent of his (Watson’s) authority, except as can be inferred from the terms used in defining it. Certain it is that it is not averred he had authority to discharge other employees or that the defendant was negligent in employing him. ... It makes no difference if the employee receiving the injury is inferior in grade to the one by whose negligence the injury was caused, ’ ’ and held the company not liable for Watson’s negligence. The same rule is announced in Foley v. R. R., 64 Iowa 644; Wilson v. R. R., 77 Iowa 429, and Hathaway v. R. R., 92 Iowa 337.
. The allegation in the petition is that the appellant was negligent in employing inexperienced men to load and push the caí. The evidence is that Tilger was the boss or foreman, under whom the resp.ondent and the other employees who loaded the car worked, and that the car was loaded by his direction and that he was nearby when it was loaded, but there is not a ray of testimony that he was an inexperienced or incompetent man to perform the duty assigned him by appellant.' [424]*424It was also contended by appellant that the only evidence that the car was defective was the fact that it broke down when overloaded. Standing alone this would not be sufficient proof to authorize a recovery. O’Connor v. R. R., 83 Iowa 105; Kuhn v. R. R., 70 Iowa 566. But there is evidence that the car was made of faulty and insufficient material. A section of the sill of the car which broke and caused the rail to fall upon respondent was produced in court on the trial and submitted to a number of experienced and expert persons as to quality and strength of this particular sill, all of whom testified that it was brittle, had been cut from an old or decaying tree, did not possess more than from one-third to one-fourth the resisting power of a good and sound sill of the same size, and that it was unfit for a sill in a push car. The evidence is all one way, that the car was constructed with faulty material, and that the defect was not perceptible to ordinary observation — the defective sill having been painted on the outside so that the kind and character of the wood was not open to ordinary observation. The law in Iowa, as elsewhere, being that' it is the duty of the master to furnish the servants reasonably • safe appliances and tools with which to work (Burns v. R. R., 69 Iowa 450; Cooper v. R. R., 44 Iowa 136; Finch v. Ins. Co., 84 Iowa 321), we hold that there was evidence that the appellant had failed to perform this duty and that the case was properly submitted to the jury.
II. It is alleged in the petition that the appellant built and caused to be built, the car at its own shops and furnished it to respondent and other employees to be used in the reconstruction of the railway. Appellant contends that the respondent should be held to strict proof of this allegation that it built the car.
The instructions ásked by both parties and given by the court, show that the case was submitted to the jury on the theory that it was the duty of the appellant to furnish the respondent with a reasonably safe push car. Por the respondent the jury were instructed that it was the appellant’s duty to select the proper mater[425]*425ials out of which to construct the car and if it did not build the car, that it was its duty to make a reasonable inspection of it before putting it in the hands of the respondent. The court instructed the jury at the request of appellant, that if any defective condition of the car could not be discovered by an inspection on the part of appellant or its agents, plaintiff could not recover.
Having tried the case on the theory that appellant was liable if it negligently furnished respondent with a defective car, the appellant will not be permitted on appeal to insist that the respondent should have been held to strict proof of the allegation that appellant built the car at its own shops, the law being well settled that on appeal parties litigant may be confined to the cause of action they adopted on the trial. Hill v. Meyer Bros. Drug Co., 140 Mo. 433; Stewart v. Outhwaite, 141 Mo. 562; Pope v. Ramsey, 78 Mo. App. (K. C.) 157.
John Mitchell testified that he had been in appellant’s employ for thirteen years and had charge of its car shops at Moberly, Missouri, and built appellant’s push cars, and “supposed he made the car in question,” but could not say positively, as he was not at Bussey where the accident occurred; that cars built at appellant’s shops were furnished for that division. "While this is not direct positive evidence that the car was built by appellant, it was evidence tending to prove that fact, and as appellant did not, as was in its power to do, offer any evidence to show where the car was actually built, or any evidence to show that the car was not built at its shops, it was sufficient to warrant the court in submitting that issue to the jury and to warrant the jury in finding as a fact that defendant did build the car.
III. The appellant contends that the court erred in authorizing a recovery, even though the car was overloaded. The instructions for respondent told the jury in effect that if the car was made of brash and brittle wood and was not reasonably safe for the purposes for which it was being used when loaded with an ordinary load, and for this cause broke down, then the fact that it was overloaded did not absolve appellant from lia[426]*426bility. Counter to this the jury were instructed for appellant, that if the car was reasonably safe when not overloaded, but was overloaded and broke down from this cause, that respondent could not recover. Appellant adopted respondent’s theory of the law,by its counter instruction and can not now be heard to complain of the error, if it be an error, which it adopted and acted upon at the trial. Berkson v. K C. Cable Co., 144 Mo. 211; Dunlop v. Griffith, 146 Mo. 288; Frankenthal v. Guardian Ins. Co., 76 Mo. App. 15; Marks v. Davis, 72 Mo. App. 557. But we do not hold the instruction to be erroneous. In effect it declared the law to be, that if the car was constructed of such weak and faulty wood that it would not bear up under an ordinary load, and that if appellant was guilty of negligence in furnishing it in its weak and unsafe condition and that it broke down from its inherent weakness, but not from being overloaded, then the respondent and his eo-employees were not guilty of such contributory negligence as to bar a recovery. The instruction for appellant, on the other hand, in effect declared the law to be that if the car was overloaded and broke down because overloaded, then respondent was guilty of contributory negligence and could not recover. In short, it was left to the jury by these instructions, to say whether the car broke down from inherent weakness or on account of the overload. Whether the car would have broken down under an ordinary load and whether the accident would have happened, is, perhaps, under the evidence, somewhat problematic. Tet there was evidence tending to show that it was incapable of carrying ah ordinary load of steel rails, and we think it was proper to submit the question to the jury. The other instructions given, correctly stated the law of the case fully and fairly for both sides. The refused instructions asked by appellant are not supported by the evidence and were properly denied.
IV. Appellant contends that the damages are excessive. In support of this contention, our attention is called by its abstract and statement to the fact that on [427]*427ihe first trial, the verdict recovered by respondent was for nine hundred dollars.
The former trial is not before ns for review. The verdict on that trial furnished no precedent fop a verdict on-the second trial. The evidence of the extent and permanence of the injury may have been much stronger on the last than on the first trial. The time intervening between the two trials, in the course of nature, develop the extent, nature and probable duration of the injury, and furnish the expert witnesses better information and enable them to testify more fully and satisfactorily of the nature, extent and probable duration of the injury.
The trial judge refused to set aside the'Ver diet on account of excessive damages; it therefore had his approval. In such circumstances we are not authorized to interfere unless .it is manifest that the jury were actuated by passion or prejudice. The respondent was nineteen years old when injured; he was a' laborer, raised on a farm; after the injury he testified that he was unable to plow more than a few hours at a time; he had been lame ever since the injury and was lame at the trial. The injured ankle was énlarged. The expert evidence tended to prove that the sprain was a severe one. One of the physicians stated that there was evidence of injury to the bone. One other said the injury might, and another that he thought it would, be permanent. All agreed that he could not walk in a natural manner, ■ and the evidence was. that the ankle joint would for a long time continue weak and easy to be hurt again, and was more liable to disease than a sound ankle. In view of this evidence, we are not prepared to say that the verdict is not .the honest expression of the jury of what is a fair-and just compensation to respondent for the injury, and affirm the judgment.
Barclay and Goode, JJ., concur.