Gantt, P. J.
From the foregoing statement it is evident that plaintiff bases her right of recovery upon the duty of defendant to exercise reasonable care to furnish her husband suitable machinery and appliances to carry on the business for which it employed him, and in this instance to furnish a safe and unobstructed track. The negligence of which plaintiff complained was the leaving of the box cars on the switch or sidetrack so close that her husband was knocked off in passing them as he swung off to let himself down from the train at Palmyra to uncouple the cars.
Defendant on the other hand seeks to escape liability on several grounds:
First, it maintains that under the evidence, conceding deceased was struck by the cars as he was descending the ladder to uncouple the train, the risk of injury from these cars so stationed was incident to his employment, and was assumed by him in entering upon and remaining in the employment; that the position of these cars was attributable to the action of the trainmen; that they were in the same common employment and were his fellow-servants, and that the risk of injury [87]*87from negligent performance of duty on their part was within the risks of employment he assumed.
Second. That the position of the cars on the sidetrack was usual and such that the main line was entirely unobstructed, and such that the deceased, if he had been at his post of duty on top his car, would have been safe, and such that the movement of setting cars in on the sidetrack, if made in the customary manner or with reference to the rules of the company, would involve no danger from the stationary cars. That it was not the duty of the company to assume plaintiff’s husband would leave his post of duty and violate the rules made for his protection. .
It is conceived, that much of the apparent conflict in the different cases, on the liability of the master to his servant for the negligent acts of other servants, grows out of the failure to keep in view those personal duties which the master himself owes to his servants, as distinguished from those they owe each other. For failure or negligence in the discharge of these personal duties of the master resulting in injury, the master is liable whether he acts in person or by other servants. If he acts by servants in such cases, it makes no difference as to the grade of the servant. The servant is identified with the master. The master’s duties are cast upon him and for his default the master is liable, and in these cases the doctrine'of “fellow-servants” so called has no application whatever. In this class of duties, it has long been established, that a railroad company, as a master, owes it to its employes to keep its road and works and its track in such repair as to insure the safety of its servants, who are required to work, and be on its tracks, and it is bound to furnish safe and sufficient machinery and cars. This duty it cannot delegate to any servant, high or low, so as to escape liability. Lewis, Admir, v. Railroad, 59 Mo. 495 ; Hall v. Railroad, 74 Mo. 298 ; Siela v. Railroad, 82 Mo. 435.
[88]*88But on the other hand this obligation of the master does not extend so far as to require of him that he should be responsible for the negligence of his servants, if of competent skill and experience, in using or managing the means and appliances placed in their hands in the course of their employment, if they are neither defective or insufficient, and the rule is this: “That the servant must be presumed in entering on his employment to take all the ordinary risks of it, including risks of accidents happening by the neglect, acts or omissions on the part of other persons engaged in the same undertaking.” Pollock’s Essay on Jurisprudence, pp. 127, 128, 131, 133.
As said in Ross v. Railroad, 112 U. S. 377-383: “The general doctrine as to the exemption of an employer from liability for injuries to a servant caused by the negligence of a fellow-servant is well settled. When several persons are thus employed there is necessarily incident to the service of each the risk that the others may fail in that care and vigilance which are essential to his safety.” In undertaking the service, he assumes that risk, and if he should suffer he cannot recover from his employer. He is supposed to have taken it into consideration when he arranged for his compensation. “He cannot in reason complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid.”
And, under these circumstances, says Wharton in his work on negligence, “it makes no difference in the application of the exception that the employe receiving the injury is inferior in grade to the one whose negligence caused the injury.” In other words, “If the co-servant whose negligence caused the injury was at the time representing the master in doing the master’s duty, the latter is liable; if, on the other hand, the co-servant was simply performing the work of a servant, in his character as such the master is not liable.” [89]*89Laughlin v. State, 105 N. Y. 159; Hussey v. Coger, 112 N. Y. 614.
With these general principles before us, we ask, to the breach of which class of duties, is due the injury which befell the plaintiff’s husband, the master’s, or servant’s? There is ho allegation or proof that there was any defect in the construction of defendant’s tracks and switches at Palmyra. No suggestion of any defect in the cars in the train on which he was running. There must have been in the very .nature of things a point of conjunction where the switch or sidetrack left the main track; there is no charge that the stationary cars were without brakes or other appliances to keep them in position when set out and left on the sidetrack; there is no allegation that the condactor or any other superior ordered or directed the deceased to attempt to. uncouple the train just at this point opposite the stationary cars. What then caused the injury? It would seem taking all the evidence of plaintiff together, that the north car of the three stationary cars was left so close to the main track that, when plaintiff’s husband threw himself out to go down the ladder, he was brushed off.
As before said, there is nothing in the way of negligence predicated on the construction of the tracks or their want of repair. Now as to whose duty it was to put these cars far enough on the sidetrack as to avoid all danger of collisions with passing trains, the record is unsatisfactory.
One witness, Ray, was asked, “ Under whose direction is a car placed on a sidetrack ? A. Well the agent has got something to do with it of course. The general man is the train dispatcher, I suppose.
“ Q. Who is the one the agent instructs? A. The conductor.
“ Q. And the conductor instructs the brakeman? A. Yes, sir.”
All that can be gleaned from this amounts to nothing more than when a freight train arrives at a station, [90]*90and it is desirable to have cars set on a switch or sidetrack, the station agent notifies the conductor, and the conductor notifies the engineer and braketnen, and they set the cars out. In so doing, they are performing the work of agents for a common master.
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Gantt, P. J.
From the foregoing statement it is evident that plaintiff bases her right of recovery upon the duty of defendant to exercise reasonable care to furnish her husband suitable machinery and appliances to carry on the business for which it employed him, and in this instance to furnish a safe and unobstructed track. The negligence of which plaintiff complained was the leaving of the box cars on the switch or sidetrack so close that her husband was knocked off in passing them as he swung off to let himself down from the train at Palmyra to uncouple the cars.
Defendant on the other hand seeks to escape liability on several grounds:
First, it maintains that under the evidence, conceding deceased was struck by the cars as he was descending the ladder to uncouple the train, the risk of injury from these cars so stationed was incident to his employment, and was assumed by him in entering upon and remaining in the employment; that the position of these cars was attributable to the action of the trainmen; that they were in the same common employment and were his fellow-servants, and that the risk of injury [87]*87from negligent performance of duty on their part was within the risks of employment he assumed.
Second. That the position of the cars on the sidetrack was usual and such that the main line was entirely unobstructed, and such that the deceased, if he had been at his post of duty on top his car, would have been safe, and such that the movement of setting cars in on the sidetrack, if made in the customary manner or with reference to the rules of the company, would involve no danger from the stationary cars. That it was not the duty of the company to assume plaintiff’s husband would leave his post of duty and violate the rules made for his protection. .
It is conceived, that much of the apparent conflict in the different cases, on the liability of the master to his servant for the negligent acts of other servants, grows out of the failure to keep in view those personal duties which the master himself owes to his servants, as distinguished from those they owe each other. For failure or negligence in the discharge of these personal duties of the master resulting in injury, the master is liable whether he acts in person or by other servants. If he acts by servants in such cases, it makes no difference as to the grade of the servant. The servant is identified with the master. The master’s duties are cast upon him and for his default the master is liable, and in these cases the doctrine'of “fellow-servants” so called has no application whatever. In this class of duties, it has long been established, that a railroad company, as a master, owes it to its employes to keep its road and works and its track in such repair as to insure the safety of its servants, who are required to work, and be on its tracks, and it is bound to furnish safe and sufficient machinery and cars. This duty it cannot delegate to any servant, high or low, so as to escape liability. Lewis, Admir, v. Railroad, 59 Mo. 495 ; Hall v. Railroad, 74 Mo. 298 ; Siela v. Railroad, 82 Mo. 435.
[88]*88But on the other hand this obligation of the master does not extend so far as to require of him that he should be responsible for the negligence of his servants, if of competent skill and experience, in using or managing the means and appliances placed in their hands in the course of their employment, if they are neither defective or insufficient, and the rule is this: “That the servant must be presumed in entering on his employment to take all the ordinary risks of it, including risks of accidents happening by the neglect, acts or omissions on the part of other persons engaged in the same undertaking.” Pollock’s Essay on Jurisprudence, pp. 127, 128, 131, 133.
As said in Ross v. Railroad, 112 U. S. 377-383: “The general doctrine as to the exemption of an employer from liability for injuries to a servant caused by the negligence of a fellow-servant is well settled. When several persons are thus employed there is necessarily incident to the service of each the risk that the others may fail in that care and vigilance which are essential to his safety.” In undertaking the service, he assumes that risk, and if he should suffer he cannot recover from his employer. He is supposed to have taken it into consideration when he arranged for his compensation. “He cannot in reason complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he is paid.”
And, under these circumstances, says Wharton in his work on negligence, “it makes no difference in the application of the exception that the employe receiving the injury is inferior in grade to the one whose negligence caused the injury.” In other words, “If the co-servant whose negligence caused the injury was at the time representing the master in doing the master’s duty, the latter is liable; if, on the other hand, the co-servant was simply performing the work of a servant, in his character as such the master is not liable.” [89]*89Laughlin v. State, 105 N. Y. 159; Hussey v. Coger, 112 N. Y. 614.
With these general principles before us, we ask, to the breach of which class of duties, is due the injury which befell the plaintiff’s husband, the master’s, or servant’s? There is ho allegation or proof that there was any defect in the construction of defendant’s tracks and switches at Palmyra. No suggestion of any defect in the cars in the train on which he was running. There must have been in the very .nature of things a point of conjunction where the switch or sidetrack left the main track; there is no charge that the stationary cars were without brakes or other appliances to keep them in position when set out and left on the sidetrack; there is no allegation that the condactor or any other superior ordered or directed the deceased to attempt to. uncouple the train just at this point opposite the stationary cars. What then caused the injury? It would seem taking all the evidence of plaintiff together, that the north car of the three stationary cars was left so close to the main track that, when plaintiff’s husband threw himself out to go down the ladder, he was brushed off.
As before said, there is nothing in the way of negligence predicated on the construction of the tracks or their want of repair. Now as to whose duty it was to put these cars far enough on the sidetrack as to avoid all danger of collisions with passing trains, the record is unsatisfactory.
One witness, Ray, was asked, “ Under whose direction is a car placed on a sidetrack ? A. Well the agent has got something to do with it of course. The general man is the train dispatcher, I suppose.
“ Q. Who is the one the agent instructs? A. The conductor.
“ Q. And the conductor instructs the brakeman? A. Yes, sir.”
All that can be gleaned from this amounts to nothing more than when a freight train arrives at a station, [90]*90and it is desirable to have cars set on a switch or sidetrack, the station agent notifies the conductor, and the conductor notifies the engineer and braketnen, and they set the cars out. In so doing, they are performing the work of agents for a common master.
Each engineer and brakeman is aware that upon the proper performance of his duty depends the safety of other engineers and trainmen on the same road, and, unquestionably, it is the duty of every engineer, conductor and brakeman as they come into a station to be on the lookout for open switches or loose cars. When they enter the service of a road this is one of tíie ordinary and obvious risks, and the court properly so declared the law in giving the fifth instruction asked by defendant. All the facts in the case show that some agent of the company had left some time during the previous evening three cars on this switch at the ordinary place for loading and unloading; this is the common every-day duty of the men who man the freight trains ; they handle these cars; they do the switching at all ordinary stations. Prom the evidence it appears the tracks at the point twenty feet south of the frog, where Ray discovered the blood, were seven feet, six inches apart. Allowing for the cars projecting eighteen inches over either track, there would still remain a space of four feet, six inches. The stationary cars were objects of such size that they could readily be seen, and Howey says were seen. Krummell, the mill teamster, says they were standing at the usual place.
Although the court gave defendant’s fifth instruction to the effect that the deceased assumed the risk of injury to himself from the negligence of his fellow-servants in setting these freight cars too close to the point of the switch, it gave plaintiff’s instruction in which it told the jury that if Sehaub was knocked from the car he was on while standing on the ladder, and injured “ wholly by the negligence and carelessness of the defendant, its agents or servants, in negligently leaving [91]*91the car standing so close to the north end of the sidetrack as to be in a dangerous proximity to the main track, then plaintiff could recover.” Now the court here has not distinguished between the duty of the defendant as master and the duty of the servants, as servants, to each other, It has not told the jury that if the master furnished a safe and properly constructed track, and employed competent servants, and furnished "safe cars, that it had performed all the duty it owed decéased. The jury are told on the contrary, that if deceased lost his life, by thenegligence of the defendant, or its servants, the defendant ivas liable. By its terms it includes all of defendant ’s servants, and, in so doing, authorizes the jury to attribute the negligence of trainmen engaged in the same common employment with deceased to defendant, and in so doing it most clearly contradicts the other instruction in which the jury were told deceased assumed the risk of the negligence of his fellow-servants. The instructions. under the evidence were misleading.
There was no evidence of any negligence in the case of anyone, except the trainmen who put the cars on the switch, and for that negligence the company was not liable to the deceased. He had assumed that risk, and agreed to look out for, and avoid, it when he entered upon his service as brakeman. If the servants who do this work almost exclusively were under no obligation to save each other’s lives, and could throw all the risks of their dangerous employment upon the companies who employ them, all these great enterprises which require and employ the services of a large number of men would be seriously retarded. The rule itself is just. It simply requires of each servant to use care in protecting his own life, and that of his fellow-workmen.
These three cars temporarily left on this sidetrack were not such an obstruction that the company would be presumed to know of. The earliest period they [92]*92were shown to have been on the sidetrack was at a late hour, the evening before the accident. The accident occurred at daylight next morning. No evidence was given that any servant, whose duty id was to remove the cars, knew of their proximity to the frog, nor did their position indicate any immediate danger. It is not like the case of .a telegraph pole or other permanent structures, placed too near the track. These cars were the very appliances that the deceased and his fellow-servants were handling every day, and under the evidence it seems they were to put other cars on this same track, just as they or other trainmen had put these cars there the day. before.
Resides being misleading and contradictory, we think this instruction is bad in not requiring Schaub at all events to use care in discovering the proximity of the said cars.
II. The uncontradicted evidence in the case is that there was a rule of the company prohibiting employes from going between the cars to uncouple them while in motion, and this rule had been in force for at least three years, and deceased was shown to have had a copy of these rules. Indeed they were printed on all of the “time cards.” In the absence of all evidence that defendant knowingly permitted a violation of this rule, it is clear that deceased was bound to observe it, and if he persisted in breaking it, and was hurt in so doing, he could not ask the defendant to make good to him the loss or injury his own recklessness had caused. The court committed manifest error in refusing defendant’s third instruction. If the deceased violated said rule, he was guilty of contributory negligence, that will bar his recovery in this cause.
The fourth instruction asked by defendant should have been given. When the deceased swung himself off of the car, so far as the evidence discloses, he was neither at his post of duty nor in the performance of [93]*93any duty imposed on Mm. His post, according to plaintiff's own testimony, was on top of the car until it was stopped. It was Howey’s duty to uncouple the cars. It is clear that, if deceased had remained at his post, he would not have lost his life. Deplorable as it is, we do not see upon what principle of justice his employer could be expected to be held liable for injuries caused by a positive violation of a rule made for his protection. Had the deceased observed the other rule forbidding him from trying to uncouple the cars while in motion, and waited till they stopped, the accident would have been averted.
As this case must be reversed, it is proper to state that the plaintiff’s instruction is wholly insufficient as to the measure of damages. Of course in this case, there can be no exemplary damages; compensatory alone could under the evidence be recovered. The' court should have, as indicated i'n Parsons v. Railroad, 94 Mo. 286, given the jury the elements that enter into the damages in this case. It should first exclude all idea of solatium for injured feelings and loss of companionship. The pecuniary value of the husband’s life, taking into consideration his age, health, probable length of life, his capacity to earn wages, should be considered ; in other words, it is the pecuniary interest alone which the wife has in her husband’s life, that she may recover, and it is peculiarly the province of the court to give the jury the measure of damages, and their province to fix the amount under the guidance of the court.
For these errors the judgment is reversed, and the cause remanded for trial in accordance with these views.
All the judges of this division concur.