Gantt, J.
The plaintiff, as the widow of William C. Parker, commenced this action December 2, 1886, against the defendant to recover damages sus[366]*366tained by ber by reason of tbe death of her husband, who was killed by a construction train on defendant’s track, near Randolph Bluff, on the twenty-sixth day of •October, 1886.
Plaintiff’s husband had been engaged as a section hand or track laborer for the defendant for about two years prior to his death. On the twenty-sixth of October, 1886, he was engaged at work on defendant’s track at a place called Randolph Bluff with the rest of the ' section men, and had been working at that point every day for about two weeks prior to his death; the train which struck him was a construction train engaged in carrying rock from the rock crusher at Minnaville, five miles east of Randolph Bluff, to a point near the Bluff, and west of where the section men were working, for the purpose of ballasting the track and had been thus •engaged daily for three months. The engine of the construction train pulled the cars after it going west, and returning east pushed the cars in front of it. It made the round trips past the place where the section men were at work upon the track daily, the last trip being about five o’clock in the aftefnoon, each day.
It was while this train was running eastward on the twenty-sixth of October, 1886, at five o’clock p. m., that it struck William Parker, plaintiff’s husband, and killed him. From the evidence, there were about twenty-five passenger and freight trains running daily over that part of the track where Parker was killed, ■during the daytime.
The evidence discloses that at the time of the ■accident which resulted in Parker’s death the train had discharged its stone, and was being run, caboose in front, eastward, to Minnaville; Parker was working on defendant’s track, tamping some rock under the track, with his face to the east and back to the west. On the part of the plaintiff several witnesses testified, in ó [367]*367negative way, that the train made no signals, either by blowing the whistle or ringing the bell; that some one hundred and fifty yards west of the point where plaintiff’s husband was at work there was a curve in defendant’s track;- that parallel with defendant’s-track was the Wabash railroad track, and distant at this point •about nine feet, one from the other. On the part of the defendant there was much positive affirmative •evidence that at a point some two thousand feet west of where Parker, was killed the engineer blew three blasts of the whistle, as a signal that he was going to back •over this track with his train.
There was also evidence that just at the time plaintiff’s husband was struck and killed a freight train of forty-eight cars on [the Wabash was running ■eastward by this place, making much noise. A number •of witnesses were allowed without being qualified as experts or showing any familiarity with the speed of trains to testify that, in their opinion, the train was running thirty to thirty-five' miles an hour and was racing with the Wabash train. On the part of defendant there was positive testimony that just west of the point where Parker was killed, there was a curve in the track, and that while going round this curve the engine blew four blasts of the whistle, two long and two short.
It appears from the evidence that on the east or front end of the construction train as it backed- east two men were stationed, one with a flag; the train was running backwards at a rate variously estimated from fifteen to thirty-five miles per hour, at the time it ■struck Parker. Erom the point where Parker was at work the track could be seen westward a distance variously estimated by plaintiff’s witnesses as being from ■one hundred and fifty yards to a quarter of a mile; that all the other men composing the gang of section .men were west, and within sixty feet of the point where [368]*368Parker was working, being between Mm and the. approaching train, scattered along the track at work; that the section foreman, Hudgens, noticed the approach of the train and called out to his men to get off the track; seeing that Parker was standing over the north rail of the track busy at work with his back to the approaching train, without heeding the warning, the foreman, Joseph Dawson and Prince L. Hudgens all three started and ran towards him, yelling as loud as they could for him to get off the track, one of them, Dawson, running some forty or forty-five feet towards Parker before he was struck. In addition to this, the men on the front end of the leading car of the train hallooed with all their might, but failed to attract his attention in time to prevent the train striking him.
It seems very probable that the noise made by the "Wabash train passing at the time prevented the deceased hearing these warnings. The negligence complained of is the excessive speed of the train; the fact that it was baching over the track; the failure of the trainmen to give signals to the trackmen at work on the track, and the racing with the Wabash.
The defense is that there was no negligence; that as to trackmen the company did not owe them the duty of whistling and ringing the bell; that this work had been going on daily for three months over this same track, and this same train passed daily at the very hour plaintiff’s husband was struck; that Parker and the other section men had been for two weeks at this point ballasting the track and repairing it, and had every reason to expect this train at that time; that, while it was an irregular train in one sense, yet at this time it made quite regular trips twice a day; that the speed made was necessary to permit this train to clear the track for the regular passenger train, and that if [369]*369negligence it was that of fellow-servants in charge of the construction train who were engaged in the same common employment for the same common master at that time and the contributory negligence of plaintiff’s husband.
Upon request of plaintiff the court gave the jury the following instructions, to the giving of which the defendant objected at the time and excepted: “1. The plaintiff in this action seeks to recover of defendant $5,000 damages for the killing of her husband while he was at work as a section hand upon the defendant’s railroad, by one of defendant’s construction trains; and her right to recover is based upon alleged negligence of the servants and agents of defendant, in the running and management of the train in question. The defendant railroad company, by its answer, admits that plaintiff’s husband was killed while in its employ, but denies the negligence charged by plaintiff, and in substance alleges that the death of plaintiff’s husband was occasioned solely by his own carelessness and recklessness, and without any fault or neglect of defendant’s agents or servants contributing thereto. The questions for you to determine under the issues, thus made and the evidence and the instructions of the court are: First. Did the agents and servants of defendant in charge of the train in question run and manage said train in a negligent, careless manner? If so, was the injury to, and death of, plaintiff’s husband caused thereby?
“If the plaintiff has satisfied you by a preponderance, of the evidence that these questions should be answered in the affirmative, then you will find a verdict in her favor, unless the defendant railroad company has satisfied you, by a preponderance of the evidence, that the plaintiff’s husband was at the time guilty of carelessness, recklessness or negligence, and that such want [370]*370of due and proper care upon Ms part directly contributed to Ms death. These questions it is your duty to determine under all the facts and circumstances in proof.
“2. The degree of necessary, usual and proper precautions to secure his own safety, to which plaintiff ’s husband was held, as a section hand upon defendant’s railroad, was such care, caution and diligence only as a man of ordinary prudence should have exercised in the same situation, under the facts and circumstances in proof.
“ 3. If the jury find from the evidence that there was a sharp curve in defendant’s track a short distance west of the point at which plaintiff’s husband was killed; that it was the custom of defendant’s railroad, known to its employes, to give notice of the approach of its trains by ringing the bell or sounding the whistle when running its trains around its curve on its track, then it was the duty of the agents and servants of defendant, in charge of said train, to give such signals in this instance.
“4. If the jury find from the evidence that the agents and servants of defendant in charge of the construction train in question were running said train backward; that they were engaged in a race with a train of cars on the Wabash, St. Louis & Pacific railway, which at that point runs parallel with and near to defendant’s track; that they were running said construction train at such a high rate of speed, and in such a manner as to endanger the lives of employes upon its track; that they knew, or by the exercise of ordinary care upon their part might have known, that plaintiff’s husband and his colaborers upon the track were at or near the point where the accident occurred, and did not ring the bell or sound the whistle as they came around the curve, or approach the same, so as to give warning [371]*371of their approach, and failed to nse the ordinary means within their power to prevent the injury to and death of plaintiff’s husband, then the defendant was guilty of negligence in so running and operating its train, and if the jury find that plaintiff’s husband was without fault or negligence upon his part, and that such negligence on the part of the servants and agents of defendant in running and managing said train caused his death, then you should find a verdict for the plaintiff.
“5. Although the jury may believe from the evidence that the noise made by the running of the train upon the track of the Wabash, St. Louis & Pacific railway was so great as to render it difficult for plaintiff’s husband, while engaged in his work upon defendant’s track, to hear the approach of defendant’s train, yet that fact alone did not absolve the defendant from its obligation to use the usual and proper precautions to warn plaintiff’s husband of his danger; and if the jury find that plaintiff’s husband was standing with his back towards the approaching construction train; that it was necessary for him to stand in that position in order for him to'do the work upon which he was at that moment engaged; that the servants and agents of defendant in charge of their train, and the deceased, had the same means of knowing that the noise made by the other train rendered it difficult for plaintiff’s husband to hear the approach of the train that struck and killed him; that plaintiff’s husband had no notice or warning of the approach of said train, and that without fault or neglect on his part he was struck and killed by said train, on account of the negligence of defendant’s agents and servants having the charge thereof, in failing to ring the bell or sound the whistle, or giving other warning likely to be seen or heard by an ordinarily prudent person there engaged, and in running said train backward at a high rate of speed [372]*372without notice or warning, which they might have given by the exercise of ordinary care upon their part, the jury should find for the plaintiff.
“6. If the jury find for the plaintiff they will assess her damages at the sum of $5,000.”
The court on its own motion gave the following instructions, viz.: “1. The defendant’s servants engaged in running and operating the construction train mentioned in evidence were not guilty of negligence in failing to anticipate that the section men engaged at work on the track would fail to be reasonably watchful, and upon the alert, to ascertain that said train was approaching. In other words, the-defendant’s servants running said train had the fight to assume that the said section men would be in the exercise of that degree of care which would be exercised by ordinarily prudent persons under the same or similar circumstances:
“2. Defendant had a lawful right to run its trains upon the track at the place where the injury occurred, either forward or backwards, and the fact that said train was being run at said time with the engine in the rear of the flat cars does not of itself constitute any negligence on the part of the defendant, or on the part of those in charge of said construction train.”
To the giving of which instructions the defendant then objected and excepted, and still excepts.
The court gave the following instructions at the instance and request of defendant: u7. The court instructs the jury that in the transaction of its business, and in the operation of its railroad, the defendant has a lawful right to run its trains at any rate of speed it may deem convenient and necessary, and, although the jury may believe from the evidence that the defendant’s train was at the time and place mentioned running,at a [373]*373rapid rate of speed, yet that -fact alone did not constitute negligence on the part of the defendant.”
‘ ‘10. The jury are instructed that, if they find from the evidence that the accident to the said William. Parker was the result of the combined negligence of both the said Parker and of the men ;in charge of the construction train, the verdict must be for the defendant.”
“12. The plaintiff does not charge that the servants of the defendant running the rock train were guilty of any negligence: First, in respect to the efforts made by them to stop said train after discovering the position and danger of William Parker, or, second, that said servants failed to discover the position and danger of the said William Parker as soon as they should, or, third, that said servants were negligent in any respect after they became aware of his position and danger. And, in the consideration of your verdict, you will disregard all evidence, if any there be, on these points, as plaintiff must recover on the case made in the pleadings.”
“b. Although the jury may believe that in some regards the defendant was negligent, yet if they further believe from the evidence that deceased by the exercise of ordinary prudence and caution could have avoided the accident, they must find for the defendant.”
The defendant prayed, and the court refused, the following instructions, and defendant at the time excepted to the action of the court in refusing the same: “1. The defendant moves the court to instruct the jury that, under the pleadings and the evidence in this case, your verdict must be for the defendant. First. Because deceased was a fellow-servant of the men engaged in running the train by whose negligence it is alleged he was injured. Second. Because the said [374]*374William Parker was guilty of negligence directly contributing to the injury.
“2. The court instructs the jury that there is no evidence that the train was being run at an improper or dangerous rate of speed at the time and place of the accident.
“3. The court instructs the jury that there is no evidence that the defendant’s servants were guilty of any negligence in running the construction train backwards over defendant’s track.
“4. There is no evidence tending to show that defendant’s servants in charge of said train failed and neglected to sound the whistle upon said engine before starting around the curve near the point of the accident.
“5. The jury are instructed that if they believe from the evidence that the deceased, William Parker, came to his death by reason of the negligence of the employes of defendant in charge of the rock or construction train, in the running and management of the same, they will find for defendant.
“6. The defendant’s servants engaged in running and operating the construction train mentioned in evidence were not guilty of negligence in fading to anticipate that the section men engaged at work on the track would fail to be watchful and upon the alert, to ascertain that said train was approaching.”
“8. The court instructs the jury that it was the duty of William Parker, while in and upon the defendant’s- track at work, to be constantly on the alert and watchful that he might ascertain whether trains were approaching over the same, in time to avoid danger from the same. He had no right to rely upon being notified by the men in charge of the train of his danger, but was in duty bound, while thus in and upon the track at work, to use every precaution to learn of the [375]*375approach of trains and avoid danger, that a careful prudent man would have used under similar circumstances.
“9. The court instructs the jury that, under the evidence in this ease, the section men, including the deceased, engaged in work on defendant’s tracks, were bound to expect an irregular train from the west at any-moment; and if you believe from the evidence in this case that the curve in defendant’s track, and the high bluff on the north side, rendered it impossible to see any considerable distance westward along said track from the point where the deceased stood, and that by reason of the noise made by the freight train on the "Wabash track, it was impossible or difficult to hear an approaching train on defendant’s track, or signals made by such train; and that the said William Parker, with a knowledge of these facts, placed himself astride of one of the rails of defendant’s track, with his face to the east, and continued in this position, engaged himself in the work of tamping stone under a tie, without keeping a watch to the west, or taking any precautions to ascertain whether any train was approaching him from that direction, your verdict must be for the defendant.”
“11. Defendant had the lawful right to run its trains upon the track at the place the injury occurred, either forward or backward, and the fact that said train was being run at said time with the engine in the rear of the flat cars does not constitute any negligence on the part of the defendant, or on the part of those in charge of said construction train.”
“a. If the jury believe from the evidence that in consequence of the curve in the defendant’s track it was impossible for a person to see any considerable distance along the same; that the noise and roar of the freight train running on the Wabash track made it difficult or impossible to hear the noise or the signals [376]*376of a train approaching upon the defendant’s road at the time of the accident, and you further find that the section men, including the said Parker, knew or had reasonable grounds to expect that the construction train would come along over the track going east at about the time said train did in fact come along, and that the said William Parker, with a knowledge of all these facts, went between the rails of defendant’s track and continued to work with his back to the approaching train, and without taking any precautions to ascertain the approach of the same, your verdict must be for the defendant.”
“c. If the jury find from the evidence that the servants of the defendant running the train, in proof, sounded the signal whistle just before starting their train around said curve, then the court instructs you that the defendant’s servants in charge of the train had the right to believe that the section men would hear and heed said warning, and if you find from the evidence that a man was stationed on the front end of the train as it moved east to warn persons off the track, then such servants so in charge of said train were hot negligent in respect to the rate of speed at which said train ran, and the finding should be for the defendant.”
The court, at the request of plaintiff and against the objection of the defendant, allowed the jury to take to the jury room with them, after the case was submitted for consideration of their verdict, and while considering of the same, the plat or picture spoken of in the evidence and shown in evidence by plaintiff.
To this' ruling and action of the court the defendant then excepted, and still excepts.
The jury returned a verdict for plaintiff in the sum of $5,000, and judgment was rendered thereon by the [377]*377court, to which action of the court the defendant then ■excepted and still excepts.
Plaintiff’s husband was a section hand in the service of defendant at the time he was killed. He had been in this same employment for about two years prior to his death. At the time of his death, he was tamping rock under the head block at the switch, near Randolph Bluff, stooping, with his back toward the west. He was struck by a car in a construction train coming from the west, on defendant’s track, in charge ■of defendant’s trainmen, who were and had been for some three months engaged in hauling and unloading crushed rock for ballast for this section. The train had discharged its load of rock, and was backing, caboose in front, to Minnaville, some five miles distant, in order to clear the track for the afternoon passenger train.
Just at the time plaintiff’s husband, William 0. Parker, was struck, a freight train of forty-eight cars was passing on the track of the Wabash railroad, about nine feet distant, and at this point parallel to defendant’s road. The Wabash train was making a great noise. The evidence for the plaintiff was that Parker and his associate section men did not hear any signals by way of bell-ringing or whistle-blowing on the part of those in charge of the construction train-. On the part of the trainmen, there was much positive evidence that just prior to starting the train back on the main track the engineer sounded his whistle. About one hundred and fifty yards west of the point where Parker was struck there was a curve in defendant’s road. The engineer and other trainmen testify that when nearing this curve the engineer gave four signals, two long and two short blasts of the whistle. All the section men except Parker saw the train in time to avoid it, and did so. '
[378]*378Three of them, seeing that Parker was apparently wholly unconscious of its approach, ran towards him and attempted to attract his attention by calling to him in a loud voice; but it seems clear now that the noise of the Wabash train prevented his hearing them. Plaintiff bases the right to recover on the grounds that defendant’s trainmen on the construction train were running it at a high, unusual, dangerous and reckless-rate of speed; that her husband was stooping, with his-back to the west, when this train suddenly and without, warning or signal by whistle or bell, was run over him;. that it was racing with the Wabash train at the time.
There are a number of specific exceptions saved in-the record, but it is plain that one question of controlling importance arises on this record. Were the trainmen operating the construction train that killed plaintiff fellow-servants of his, working for a common master-in a common service, and if so is defendant liable for the injury? Learned counsel for defendant in bis, argument of this cause urged us to lay down some definite principle or rule by which employers could govern themselves. After a careful examination of this, subject, in its varied aspects, we think the attempt-would be futile and unsatisfactory. The judge or court who would deal in general observations outside of the record under consideration would be treading on dangerous ground, and in a very short time would probably find “himself hoisted by his own petard.”
It is unnecessary to go over the learning and history of the rule that the master is not liable to his servant for the injury resulting from the negligence of a fellow-servant in the same common service. See Ell v. Railroad, 48 Eng. & Am. R. R. Cases, 318. An examination of the cases in this court will show that this-court has never denied the rule. McDermott v. Railroad, 30 Mo. 115; Rohback v. Railroad, 43 Mo. 187;, [379]*379McGowan v. Railroad, 61 Mo. 528; Brothers v. Cartter, 52 Mo. 372; Gibson v. Railroad, 46 Mo. 163; Marshall v. Schricker, 63 Mo. 308; Smith v. Railroad, 92 Mo. 359; Sherrin v. Railroad, 103 Mo. 378; Murray v. Railroad, 98 Mo. 573; Relyea v. Railroad, Su.pt, Ct. Mo., Feb. 1892; Higgins v. Railroad, 104 Mo. 413; Schaub v. Railroad, 106 Mo. 74.
The main, and only difficulty has been to satisfactorily determine at all times whether the employment was a common service, and the employes fellow-servants within the meaning of the rule. And after due consideration we are of the opinion that, unsatisfactory as it may seem, the, rule itself must remain general, its application specific, as the cases arise. This rule, to exempt the master, requires the servants shall be employed by a common master, and the servants must be employed in the same common employment. In this case we have the first essential. The petition and evidence all show that plaintiff’s husband and the trainmen on the construction train were employed by the same master, the defendant. Were they fellow-servants in a common employment?
The record shows plaintiff’s husband was and had been for two years a section hand in defendant’s employ, working on this section of defendant’s railroad, repairing and keeping the track in a safe condition for trains. He was at this work tamping a rock under the block of the switch at the time he was killed.
The trainmen were in charge of a construction train, for three months had daily hauled rock from a crusher at Minnaville, five miles east of the point where Parker was killed, and unloaded it on this same section for the purpose also of ballasting the track to insure safety of trains passing over it.
It is in evidence, that this train made two trips daily over this section; that plaintiff’s husband had [380]*380been engaged for two weeks near the place where he was killed; that this train passed the point where he was killed about the same time every afternoon about five o’clock.
These construction trains can only work between the schedule time of regular trains. It was in evidence that trackmen of section men were expected to look out for trains and clear the track. It was a rule of the defendant that whistles should be sounded in going around curves. That the work of deceased and the ■construction train crew tended to one common end, to-wit, the repairing and, in this instance, the ballasting ■of a common track on a common section, is unquestionable. One set of the employes were managing the train, hauling and unloading the crushed rock, and the other, the regular section men, were carefully disposing ■of this rock and tamping it under the rails and switches. Neither had the least control of the other; while they were working in harmony to accomplish a common purpose, the repairing and improvement of their ■employer’s track on this section, neither could command or direct the other.
Again, they bore the same general relation to the master. That is to say, in repairing this track, they were both engaged in doing a work that the law ■devolved upon the defendant, and they were both ■engaged in assisting their common master in discharging a duty to the public and its trainmen who traveled in regular trains over this track.
This train passed every day about the hour of this unfortunate accident. Plaintiff’s husband was familiar' with the track and the curves. He had worked there two years. He also knew of the proximity of the '"Wabash road.
We believe it is conceded by all . the courts, not those who follow the rule in the Farwell case, but those [381]*381who deny it, that the servant assumes the natural risks incident to the common course of the business, including the negligence of his fellow-servants. When plaintiff’s husband went to work on the track that afternoon, he was certainly aware that this train would pull by him about the usual time to clear the track for the afternoon passenger train. In so doing, it would be following a regular or natural course. His work brought him to work on the same track, at the same time the work of the trainmen brought them there serving a common master. And both understood the risk from this necessary contact. And the negligence-of the one in doing his work might injure the other in doing his work.
Hence, we conclude, that applying these facts to the-general rule, they make a case of fellow-servants in a common employment. In Rollback v. Railroad, supra, the facts were, the plaintiff was a section man, at work on the defendant’s railroad, at a place near the foot of Jefferson street, in Jefferson City, where the railroad crossed a street. While so employed, the trainmen in charge of the locomotive and train of cars, without ringing a bell, or sounding a whistle, ran the train over plaintiff. This court then held that the section men and the trainmen were felloio-servants, and plaintiff could not recover, though it was assumed the negligence of the trainmen was clearly shown, and the majority of this court still approve that case.
We are not aware that this court has ever repudiated that case. In Whalen v. Railroad, 8 Ohio St. 249, the facts were as follows: Plaintiff was a section hand, or trackman, working repairing the track. He alleged there was a man employed on one of defendant’s trains whose duty it was to pass firewood from the tender to the engine, and, on finding sticks unsuitable, he cast the same from the train. That this train [382]*382was passing where plaintiff was at work on the track. He retired from the track, and, as the train passed, this fireman improperly threw a stick of wood from the tender; it struck plaintiff and put out his eye. That •court said: ‘‘This case, it will be perceived, is not one in which the injured .party is placed by their common ■employer in a position subordinate to and subject to orders of the fellow-servant through whose negligence and misconduct the injury occurs, so. as to come within the principle decided in Railroad v. Stevens, 20 Ohio Rep. 415, and Railroad v. Keary, 3 Ohio St. 201; but presents the simple question whether the master or employer is liable to one servant for injuries received from the negligence of a fellow-servant, where no relation of subordination or subjection exists between them while engaged in the business of their common employer.”
That court answered the question in the negative, holding the trackman and the fireman fellow-servants. This case is the more significant because .it came from a court that first denied the rule in the Farwell case, in the cases cited by Judge Napton, in McDermott v. Railroad, supra.
In 1842, Farwell v. Railroad, 4 Metc. 49, was decided. In that case an engineer was injured by the negligence of a switchman, who left the switch open, and the engine was thereby run off the track. It was .shown that “the switchman was a careful and trustworthy servant.' Earwell sued the company, and the .supreme court of Massachusetts held he could not recover. That decision was subsequently followed by the supreme court of the United States in Randall v. Railroad (1883), 109 U. S. 482. In that case, the evidence showed the injury occurred at night, at a place where there was a network of tracks in the defendant’s railroad yard, near the junction of a branch road with the main road, and about ten rods from a highway [383]*383crossing. Plaintiff had .previously been employed on another part of the road. On the night in question, in the performance of his duty as a brakeman on a freight train, he unlocked a switch which enabled Ms train to pass from one track to another, and he ivas stooping down, with his lantern on the ground beside him, to unlock the ball of a second switch to let the engine of his train pass to a third track, when he was struck and injured by the tender of another freight engine, in no way connected with his train, baching down on the second track. Erom the evidence, it appeared the switch could be worked safely by a man standing midway between the two tracks, using reasonable care. It could not be safely worked by standing at the end of the handle while an engine was coming on' the track next that end. The engine that struck plaintiff was being driven at a speed of about twelve miles an hour by an engine man in defendant’s'employ, and there was evidence that it had no light, except the headlight, and no bell, and its whistle was not sounded. A demurrer to the evidence was sustained.
Mr. Justice Gray, in delivering the opinion of the court, said: “The general rule of law is now firmly established that one who enters the service of another takes upon himself the ordinary risks of the negligent acts of his fellow-servants in the course of the employment. This court has not hitherto had occasion to •decide who are fellow-servants within the rule. * * * Nor is it necessary for the purposes of this case to undertake to lay down a precise and exhaustive definition of the general rule in this respect, or to weigh conflicting views which have prevailed in the courts of the several states; because persons standing in such a relation to one another as did this plaintiff and the engine-man of the other brain are fellow-servants, according to the very great preponderance of judicial authority in [384]*384this country as well as the uniform course of decisions in the house of lords and in the English and Irish courts. * * *' They are employed and paid by the same master. The duties of the two bring them to work at the same place at the same time, so that the negligence of the one in doing his work may insure the other in doing his work. Their separate services have an immediate common object, the moving of the trains. Neither works under the order or control of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing his service ; and neither can maintain an action for an injury caused by such negligence against their common master. The only cases cited * * * which have any tendency to support the opposite conclusion are the decisions * * * Chamberlain v. Railroad, 11 "Wis. 248, and * * *- Haynes v. Railroad, 3 Coldw. 222, each of which wholly rejects the doctrine of the master’s exemption from liability to one servant for the negligence of another, and the first of which has been overruled * * * ' in the same state. This action cannot, therefore, be maintained for the negligence of the engine man in running his engine too fast, or in not giving notice of its approach.”
This decision has never, so far as we can find, been questioned or overruled by the court rendering it. The subsequent case of Railroad v. Ross, 112 U. S. 377, though decided only a year later, does not mention it. Certainly it does not overrule it in terms; and we think the cases are not in conflict. They simply treat of the relation of the master to the servant under different conditions. In the Ross case, the supreme court of the United States declined “to lay down a rule which will determine, in all cases, what is to be deemed a common employment,” but placed its decision on the ground that the “conductor, having the entire control and [385]*385management of a railway train, occupies a very different position from the "brakeman, porters and other subordinates employed. He is in fact, and should' be treated as, the personal representative of the corporation, for whose negligence it is responsible to subordinate servants.”
So that, while the learned judge who wrote that opinion discusses with marked ability what is now sometimes termed “the department rulé,” it seems not to have been the basis of the decision in that case. In the subsequent case in the same court of Quebec S. S. Co. v. Merchant, 10 Sup. Ct. (U. S.) Rep. 397, it appeared that the plaintiff was the stewardess of the ship. It was her duty to attend to the ladies’ room in the cabin, and in the course of that duty to dmpty slops, as to which her orders were to throw them over the side of the vessel. The cabin was on deck. A railroad extended round the vessel, and consisted of four horizontal iron rods, which were supported by stanchions at intervals of four and one-half feet. In this railing there were openings or gangways for receiving and discharging freight and passengers. Three of the gangways were for passengers. On her voyage, at one of her stopping places, the gangway was opened to let off passengers. In replacing the rods, they were not placed in proper positions but remained so far unfastened that the hooks were not secured in the eyes. The carpenter and porter undertook to fasten the rods. The porter testified he told the carpenter of the ship to* put the rods in, and he replied, “Wait until the rain is over.” While in this condition, the plaintiff came to the gangway with a bucket of slops, leaned against the railing, it gave way, and she fell into the sea and was injured. The servants were divided into ‘1 three departments,” the “deck department,” the “engineer’s [386]*386department” and the “steward’s department.” The carpenter was in the deck department, the plaintiff: in the steward’s; there was a master or captain in command of the whole vessel.
The court, Judge Blatchfobd delivering the opinion, says: “The contention of the plaintiff is that, as the carpenter was in the deck department and the stewardess in the steward’s department, those were different departments in such a sense that the carpenter was not a fellow-servant with the stewardess. But we think both the porter and the carpenter were fellow-servants with the plaintiff. The carpenter had no authority over the plaintiff, nor had the porter. The division into departments was one of convenience of administration. The case, therefore, falls within the well-settled rule, as to which it is imnecessary to cite cases, which exempts an employer from liability for injuries to a servant caused by another servant. * *' * The plaintiff took upon herself the natural and ordinary risks incident to the performance of her duty, and among such risks was the negligence of the porter and the carpenter, or of either of them, in the course of the common employment. * * * There was nothing in the employment or service of the carpenter or the porter which made either of them any more the representative of the defendant than the employment and service of the stewardess made her such representative.”
In Murray v. Railroad, 98 Mo. 573, this court held that the gripman of a cable car, employed upon it in operating it, was a fellow-servant of a watchman of the company whose duty it was, from his station on the ground, to keep watch of cars as they approach a curve and give signals to the gripman to prevent more than one train from passing the curves at a time. They were employed in the same “common employment of [387]*387operating the ears, one from the car, the other from his station on the ground.” The learned judge, who wrote the opinion in that case, very clearly distinguishes those cases in this state in which it was the duty of the master to furnish reasonably safe instrumentalities for his servants, from those in which injury occurred by the act of a fellow-servant. He concludes by saying: “The majority of the courts, it is believed, hold that servants are in a common employment when they are engaged under the same master in the same general business.” As in that case, the gripman and the watchman were engaged in the common employment of operating the train, so in this case the crew and men in charge of this construction train and the plaintiff’s husband, and the section gang to which he belonged, were engaged in the common employment of repairing and making safe and secure the track of their employer, the defendant herein, on a common section.
So that, if we apply the general rule in this case, unquestionably they were fellow-servants,' or if we apply “the department rule,” as interpreted by the supreme court of the United States, in the Ecmclall case and the Quebec Steamship case, supra, they are fellow-servants in the same department, that of the construction and repairing of the defendant’s track on this section. But neither the general rule nor the rule requiring a consociation of the employes would justify the judgment in this case. These trainmen on the construction train were daily hauling and delivering stone on the section on which plaintiff’s husband worked and had worked for three or four years. This train passed the working place of plaintiff’s husband at least four times a day. He was required to get off the track for its passage each time. He could readily observe whether the engineer was in the habit of giving signals as he came and went, and whether he ran his engine so fast that it imperiled [388]*388the safety of the section hands. This construction train and the section men belong to the same department, that of construction and repair of the track. This train necessarily brought the work of the section and the construction crew daily in contact. So that this section gang could have observed and reported to the road master any dereliction of duty in this regard. As remarked by this court in Marshall v. Schricker, 63 Mo. 308: ‘ ‘ It would be carrying the rule * '* * toan absurd extreme to hold that those only are fellow-servants who are employed in doing precisely the same thing.” The rule has never been circumscribed in any such a narrow circle.
We cannot think of any danger more obvious or likely to happen to a section man than the danger to be apprehended from irregular trains. It was the most ordinary incident to his employment. This seems to have been fully understood by the men. Plaintiff’s witness Hudgens says: “ All section men are expected to watch and get off the track when the trains come. Trains never stop to give us time to get off. We are expected to look out for all trains.” And to the same effect is the evidence of Henry Hudgens, Joseph Dawson and M. J. Barry. The risk was one he assumed when he went to work on that section. We think the demurrer to the evidence should have been sustained. The court, having overruled the demurrer to the evidence, should have given defendant’s fifth instruction. The evidence clearly made them fellow-servants, and it was the court’s duty to declare the law. As this disposes of the case it is unnecessary to examine the other assignments of error.
Sherwood, P. J. and Macfarlane, J., concur, and are of the opinion with myself that the judgment should be simply reversed, but in order to a disposition of the cause, and for that reason alone, we consent that the [389]*389case be remanded. Judge Sheewood in a concurring opinion, Black, J., in a separate opinion, holds the jugment should be reversed and the cause remanded. Baeolay, Beace and Thomas, JJ., dissent.
Judge Thomas files a dissenting opinion in which Judge Beace concurs in the conclusions reached.
Baeolay, J., dissents for reasons given by him in Dixon v. Bailroad, post, p. 413, in division number 1, at this term.
The judgment is accordingly reversed and the cause remanded.
SEPAEATE CONOTJEEING- OPINION.