BARTCH, J.,
after a statement of the case as above, delivered the opinion of the court.
At the conclusion of the evidence in this case the defendant railway company requested the court to instruct the jury to return a verdict in its favor. The refusal of this request, among other things, has been assigned as error.
The appellant railway company contends that the jury ought to have been so instructed, for the reason, as is insisted, that the uncontradicted evidence shows the deceased was guilty of contributory negligence which was the proximate cause of his injury and death. It is argued that the deceased was negligent in failing to observe and in deliberately violating the rules and instructions provided and given by his employer for his guidance and safety in the performance of his work.
The contention of the respondents on this point ap[318]*318pears to be that the relation of master and servant did not exist at the time of the accident between the appellant railway company and the deceased, and that, therefore, if the railway company was negligent in furnishing cars with defective braking apparatus, and the death resulted from handling such cars, the railway company can not, for the purpose of avoiding liability for its negligence, avail itself of a violation of the rules of the mining company. Such, at least, seems to be the result of the contention of the respondents.
That the braking appliances of the two cars in question were greatly defective is manifest from the evidence of. the plaintiffs, as shown in the statement of the case, and, while this is contradicted by evidence of the defendants, the jury must have found that the appliances were defective, and that the railway company was negligent in placing such ears upon the side track, and such finding, based, as it is, upon conflicting evidence, is conclusive on us upon such question. "Whether the allegations of the complaint, as.well as the evidence introduced by the plaintiffs, show such obvious defects in the braking appliances that the deceased ought to have observed them, and have refrained from attempting to handle the cars on the steep grade, and that his failure to do so rendered him guilty of contributory negligence fatal to a recovery for his death, is a question unnecessary to decide. It may be said, however, that the complaint itself shows that a mere cursory examination would doubtless have revealed the dangerous condition of the braking appliances. Was, then, the deceased himself so negligent, under the circumstances, as to preclude his heirs from recovering as against his employer?
Under agreement with his employer, the railway company' placed the cars which he was to operate upon the side track. When so placed they were under his exclusive charge. It seems he was both conductor and brakeman respecting the movements of those cars. That his employment was more or less hazardous was appar[319]*319ent from the character of the grade and the nature of the labor to be performed. Ail this was obvious, and must have been known by the deceased. Upon engaging to perform the work, he assumed the risks ordinarily incident to the employment. Having entered into such a service, it was his undoubted duty, aside from any specific instructions, not only for his own safety, but also for the protection of the property of his employer, before attempting to run the cars down to the ore chute to inspect the appliances with which he expected to handle and stop them. Had he done this, it seems clear that he might have avoided the accident; for, if the defects existed, they were, according to the plaintiffs’ evidence, ’ open, obvious, and discoverable upon slight inspection. Notwithstanding his plain duty, however, to inspect the ears and their appliances, even without special instructions to do so, his employer did give the deceased, upon entering the service, special instructions, and adopted rules for his guidance and safety, which were to the effect that the employee should never attempt to run down on the side track more than one car at a time; that before letting a car down he should always examine it, and see that it was in condition to be handled, and that the brakes were kept set on the empties above it; that before loading a ear he should inspect the brakes and appliances, and see if there were any defective parts, and, if there were, to report to the mine office; and that he should take care to use track blocks across the track where the last empty car stood, and also at the orehouse to stop the car to be loaded. These instructions were promulgated for the employee’s own_safety as well as for the protection of the property of his employer, and the law is well settled that an employer, engaged in a hazardous business, has the right, and that it is his duty, to formulate reasonable rules to enhance its orderly and safe conduct, so as to secure protection to property and the public, and to reduce the risks assumed by the employees.
[320]*3201 [319]*319In this case the employer not only promulgated [320]*320reasonable and proper rules, but, upon.tbe employee entering into tbe service, imparted to bim special instructions for tbe safe management and performance of tbe business. Tbe rules and instructions, made and given for tbe employee’s special benefit and safety, were by him, on tbe occasion of the accident, as appears from the plaintiffs’ own testimony, wholly disregarded; for that testimony, which is binding upon tbe respondents, whatever, under tbe circumstances, tbe real fact may be, discloses, not only that, in violation of tbe positive instructions of tbe master, tbe deceased ran two cars coupled together down the grade instead of one, as instructed, but also that tbe braking appliances were so grossly defective as to be practically useless, a condition which required but slight inspection to reveal, and that no inspection could possibly have been made before tbe moving of tbe cars and tbe defects remain undiscovered. Nor was any report, so far as shown in evidence, made to tbe mine office. Thus, tbe evidence shows such a palpable disregard by tbe employee of tbe rules and instructions of the employer as clearly' absolves tbe employer, the mining company, from all liability to tbe plaintiffs for tbe unfortunate consequences of tbe disobedience of the employee; tbe proof clearly showing that tbe want of tbe employee’s observance of tbe rules and instructions were tbe proximate cause of tbe resultant injuries and death.
It is plainly indicated by tbe evidence that tbe deceased made no effort to discover an open peril. There is nothing to show that be even made use of any brake blocks, while it is manifest that, in total disregard of bis employer’s rule, be attempted to move two cars down tbe steep grade, with a braking apparatus wholly insufficient to bold one, and tbe insufficiency of which could have been ascertained upon slight inspection, in accordance with bis instructions. Tbe conclusion, from tbe evidence, is irresistible that tbe lamentable misfortune was tbe result of bis own beedlessness, being directly attributable to bis disobedience of tbe rules and [321]*321instructions of Ms employer at a time when, so far as appears from the record, there was the existence of no emergency which required hasty action. This is so patent from the proof as to leave no room for reasonable minds to differ in relation thereto. Such disobedience, under the circumstances, rendered him guilty, in law, of contributory negligence, and such negligence, without doubt, was the proximate cause of his death.
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BARTCH, J.,
after a statement of the case as above, delivered the opinion of the court.
At the conclusion of the evidence in this case the defendant railway company requested the court to instruct the jury to return a verdict in its favor. The refusal of this request, among other things, has been assigned as error.
The appellant railway company contends that the jury ought to have been so instructed, for the reason, as is insisted, that the uncontradicted evidence shows the deceased was guilty of contributory negligence which was the proximate cause of his injury and death. It is argued that the deceased was negligent in failing to observe and in deliberately violating the rules and instructions provided and given by his employer for his guidance and safety in the performance of his work.
The contention of the respondents on this point ap[318]*318pears to be that the relation of master and servant did not exist at the time of the accident between the appellant railway company and the deceased, and that, therefore, if the railway company was negligent in furnishing cars with defective braking apparatus, and the death resulted from handling such cars, the railway company can not, for the purpose of avoiding liability for its negligence, avail itself of a violation of the rules of the mining company. Such, at least, seems to be the result of the contention of the respondents.
That the braking appliances of the two cars in question were greatly defective is manifest from the evidence of. the plaintiffs, as shown in the statement of the case, and, while this is contradicted by evidence of the defendants, the jury must have found that the appliances were defective, and that the railway company was negligent in placing such ears upon the side track, and such finding, based, as it is, upon conflicting evidence, is conclusive on us upon such question. "Whether the allegations of the complaint, as.well as the evidence introduced by the plaintiffs, show such obvious defects in the braking appliances that the deceased ought to have observed them, and have refrained from attempting to handle the cars on the steep grade, and that his failure to do so rendered him guilty of contributory negligence fatal to a recovery for his death, is a question unnecessary to decide. It may be said, however, that the complaint itself shows that a mere cursory examination would doubtless have revealed the dangerous condition of the braking appliances. Was, then, the deceased himself so negligent, under the circumstances, as to preclude his heirs from recovering as against his employer?
Under agreement with his employer, the railway company' placed the cars which he was to operate upon the side track. When so placed they were under his exclusive charge. It seems he was both conductor and brakeman respecting the movements of those cars. That his employment was more or less hazardous was appar[319]*319ent from the character of the grade and the nature of the labor to be performed. Ail this was obvious, and must have been known by the deceased. Upon engaging to perform the work, he assumed the risks ordinarily incident to the employment. Having entered into such a service, it was his undoubted duty, aside from any specific instructions, not only for his own safety, but also for the protection of the property of his employer, before attempting to run the cars down to the ore chute to inspect the appliances with which he expected to handle and stop them. Had he done this, it seems clear that he might have avoided the accident; for, if the defects existed, they were, according to the plaintiffs’ evidence, ’ open, obvious, and discoverable upon slight inspection. Notwithstanding his plain duty, however, to inspect the ears and their appliances, even without special instructions to do so, his employer did give the deceased, upon entering the service, special instructions, and adopted rules for his guidance and safety, which were to the effect that the employee should never attempt to run down on the side track more than one car at a time; that before letting a car down he should always examine it, and see that it was in condition to be handled, and that the brakes were kept set on the empties above it; that before loading a ear he should inspect the brakes and appliances, and see if there were any defective parts, and, if there were, to report to the mine office; and that he should take care to use track blocks across the track where the last empty car stood, and also at the orehouse to stop the car to be loaded. These instructions were promulgated for the employee’s own_safety as well as for the protection of the property of his employer, and the law is well settled that an employer, engaged in a hazardous business, has the right, and that it is his duty, to formulate reasonable rules to enhance its orderly and safe conduct, so as to secure protection to property and the public, and to reduce the risks assumed by the employees.
[320]*3201 [319]*319In this case the employer not only promulgated [320]*320reasonable and proper rules, but, upon.tbe employee entering into tbe service, imparted to bim special instructions for tbe safe management and performance of tbe business. Tbe rules and instructions, made and given for tbe employee’s special benefit and safety, were by him, on tbe occasion of the accident, as appears from the plaintiffs’ own testimony, wholly disregarded; for that testimony, which is binding upon tbe respondents, whatever, under tbe circumstances, tbe real fact may be, discloses, not only that, in violation of tbe positive instructions of tbe master, tbe deceased ran two cars coupled together down the grade instead of one, as instructed, but also that tbe braking appliances were so grossly defective as to be practically useless, a condition which required but slight inspection to reveal, and that no inspection could possibly have been made before tbe moving of tbe cars and tbe defects remain undiscovered. Nor was any report, so far as shown in evidence, made to tbe mine office. Thus, tbe evidence shows such a palpable disregard by tbe employee of tbe rules and instructions of the employer as clearly' absolves tbe employer, the mining company, from all liability to tbe plaintiffs for tbe unfortunate consequences of tbe disobedience of the employee; tbe proof clearly showing that tbe want of tbe employee’s observance of tbe rules and instructions were tbe proximate cause of tbe resultant injuries and death.
It is plainly indicated by tbe evidence that tbe deceased made no effort to discover an open peril. There is nothing to show that be even made use of any brake blocks, while it is manifest that, in total disregard of bis employer’s rule, be attempted to move two cars down tbe steep grade, with a braking apparatus wholly insufficient to bold one, and tbe insufficiency of which could have been ascertained upon slight inspection, in accordance with bis instructions. Tbe conclusion, from tbe evidence, is irresistible that tbe lamentable misfortune was tbe result of bis own beedlessness, being directly attributable to bis disobedience of tbe rules and [321]*321instructions of Ms employer at a time when, so far as appears from the record, there was the existence of no emergency which required hasty action. This is so patent from the proof as to leave no room for reasonable minds to differ in relation thereto. Such disobedience, under the circumstances, rendered him guilty, in law, of contributory negligence, and such negligence, without doubt, was the proximate cause of his death. Clearly, therefore, no action is maintainable by the heirs against his employer, the mining company. The rules and instructions were proper and reasonable, and it was the duty of the deceased, under the law, to obey them, and, having failed to do so, his employer was released from liability for the injuries which were the direct result of such failure.
“It is,” says Mr. Beach, “contributory negligence of an aggravated character on the part of an employee to disobey reasonable rules and regulations enacted to protect him from injury. If he is injured through such a gross and unwarranted disregard of his own safety, his remedy is gone. Such negligence is the most pronounced contributory negligence possible. It properly leaves the person injured by it wholly remediless.” Beach, Contr. Neg., section 373.
In Scott v. Eastern Ry. Co. (Minn.), 95 N. W. 892, the Supreme Court of Minnesota, speaking through Mr. Justice Collins, said: “The universally established doctrine is that if an employee, of ordinary intelligence, is injured by reason of his disobedience or disregard of reasonable rules and orders issued by the master, and brought to his attention in ample time, and opportunity being given in which to obey, he cannot recover, as against the master, for an injury received, when a violation of a rule is the proximate cause of his injury. He will, as a matter of law, be deemed guilty of contributory negligence.”
The same court, in Nordquist v. Great Northern Ry. Co. (Minn.), 95 N. W. 322, said: “An employee is [322]*322bound to obey all of tbe reasonable rules of bis employer with reference to the conduct of bis business. Disobedience of sucb rules, if it contributes directly to tbe injury of tbe employee, conclusively charges him with negligence, which will bar any recovery of damages for bis injury.”
In Karrer v. D. G. H. & M. R. R. Co., 76 Mich. 400, 43 N. W. 370, where tbe employees were acting under printed orders relating to tbeir safety, which the plaintiff failed to obey, the court said: “It was the plaintiff’s duty to examine into the coupling arrangements of both cars before he attempted to couple them, and, as they were only a rod apart at most before he started the train back, and as- he says tbe defect was visible at once to any one looking, one or two seconds would bave furnished all tbe time needed to satisfy himself, bad be been acting under any one else’s orders and not for himself ; but as be had personal direction of the engineer’s movements, and could move when he pleased, the case, as he presents it, was an aggravated one of the grossest carelessness, for which he, and no one else, was responsible.”
So, in La Croy v. N. Y., L. E. & W. Ry. Co., 132 N. Y. 570, 30 N. E. 391, the plaintiff, who had been injured, was employed as a brakeman on defendant’s freight train. One of the printed rules required brakemen, before starting, to test the hand brakes. This was not done on the occasion of the accident which caused the injury for which recovery was sought. The court, bolding that disobedience of the rules caused the accident, and that, therefore, the plaintiff was not entitled to recover, said: “In the absence of printed instructions, the plaintiff and the rest of the train crew well knew that tbeir duty to their employer, and a proper regard for their own personal safety, made it incumbent •upon them to know, before reaching the point where the steep descent began, which continued for nearly six miles, whether tbe train contained tbe requisite number of brakes to properly check its speed, and [323]*323as a necessary consequence the plaintiff can not require the defendant to mate good to him the damages resulting from an injury which could not have been sustained had he and his coemployees observed that reasonable care and caution which their experience suggested and the situation demanded.”
In Darracott v. C. & O. R. R. Co., 83 Va. 288, 2 S. E. 511, 5 Am. St. Rep. 266, where the injury complained of was a result of a disregard of rules, it was said: “At all events, the evidence shows that the dangerous condition of the coupling was obvious, and that the plaintiff, in violation of the rules of the company, voluntarily put himself in a position of danger, in consequence of which he was injured: Under these circumstances in the eye of the law, he was the author of his own misfortune; that is to say, his negligence, or, what is the same thing, his want of ordinary care and caution, was the proximate cause of the injury complained of: The action is therefore not maintainable.” C. & A. R. R. Co. v. Bragonier, 119 Ill. 51, 7 N. E. 688; Bennett v. Northern Pac. R. R. Co., 2 N. D. 112, 49 N. W. 408, 13 L. R. A. 465; Higgins v. Southern Pac., 26 Utah 164, 72 Pac. 690; Butte v. Pleasant Valley Coal Co., 14 Utah 282, 47 Pac. 77; Burgess v. R. R. Co., 17 Utah 406; Ill. Cent. R. R. v. Jewell, Adm’x, 46 Ill. 99, 92 Am. Dec. 240.
2 The heirs of the deceased, being thus precluded from a recovery against the employer because of the contributory negligence of the deceased, have they a right of recovery against the railway company who furnished the cars? It seems, as to this question the respondents assume the position that the railway company can not rely upon the contributory negligence of the deceased, because at the time of the accident he was not in its employ, and its rules were not violated. They claim that when the deceased entered the services of the mining company, and received its instructions, a contract relation was created between them, and that [324]*324the railway company,. being no party to the contract, can take no advantage of its breach by the deceased.
The answer to this is that this action is one sounding in tort against the railway company, and not upon contract, to recover for the death of the deceased, and that the proof shows such death was caused by the deceased’s own wrong, no act of gross or wanton negligence on the part of the railway company being charged. Such being the ease, the tortious acts or negligence of the railway company, if it was guilty of any, can not be made the basis of a recovery for injuries resulting from the wrong or negligence of the deceased. Clearly, if the unfortunate occurrence had resulted but in injuries, and not in death, and the deceased had brought an action against the railway company to recover damages for negligence, proof that his own negligence, and not that of the company, caused his injuries, would have been a complete defense, and where, as in this case, the recovery is sought for the death, the heirs are in no better situation than the deceased himself would be if living. Wherever contributory negligence is established as the proximate cause of an injury it is always a complete defense, and bars a recovery for such injury. In such case, the maxim, “Volenti non fit injuria,” applies.
The existence of contract relations is not essential to an invoking of the rule as to contributory negligence. The right to the application of that rule is founded upon the principle that no person can be permitted to make his own wrong, or his own voluntary act, whether tor-tious or not, the basis for a recovery against another. Where an injury results to a person because of his own wrongful act or violation of duty, neither he nor his heirs can recover damages from another for such injury. In such a case no action is maintainable. One who, through want of ordinary care, inflicts a wound-upon his own body, must be content to bear the suffering and the loss, and neither he, nor, in the event of death, his heirs, have any redress. ‘' Contributory negligence, in its judicial sense, is usually the personal de[325]*325fault of the plaintiff himself. The general rule is that when the plaintiff’s own want of ordinary care is a proximate canse of the injury he sustains he cannot recover damages from another therefor. ’ ’ Beach, Contr. Neg, section 100.
Mr. Thompson, in his Commentaries on the Law of Negligence, vol. 1, see. 185, says: “Where a person, by his own deliberate act, brings an injury upon himself, he can not make it the ground of recovering damages against another, where he is not impelled thereto, by some imminent danger, or by some exciting or exasperating circumstances, for which that other is responsible. The principle that a person can not make his own wrong or his voluntary act, whether wrongful or not, the ground of recovering damages from another, has found an expression in the maxim, “ Volenti non fit injuria.’ ”
In Railroad Co. v. Aspell, 23 Pa. St. 147, 62 Am. Dec. 323, Mr. Chief Justice Black said: “It has been a rule of law from time immemorial, and is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual default of both parties. When it can be shown that it would not have happened except for the culpable negligence of the party injured, concurring with that of the other party, no action can be maintained. ’ ’ 1 Thomp. Comm. Neg. section 186; Wharton, Neg. section 73; 2 Jaggard on Torts, 960; Ray, Neg. Imp. Dut. Pass. 669, 670; Texas & P. Ry. Co. v. Moore (Tex. Civ. App.) 27 S. W. 962; New York, C. & St. L. R. Co. v. Perriguey, 138 Ind. 414, 34 N. E. 233, 37 N. E. 976; Lewis v. Flint & P. M. Ry. Co., 54 Mich. 55, 19 N. W. 744, 52 Am. Rep. 790; Langridge v. Levy, 2 M. & W. 519; Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682; Crain v. Petrie, 6 Hill 522, 41 Am. Dec. 765.
Viewing the pleadings and the evidence contained in the record thus in the light of the law applicable to this case, we are of the opinion that the plaintiffs have shown no right to recover damages against the railway [326]*326company, that the contributory negligence of the deceased is available to that company as a defense to this action, and that the court erred in refusing to instruct the jury to return a verdict as requested by the defense. This disposes of the case, and it is therefore of no importance to pass upon the other questions presented.
The judgment must be reversed, with costs, and a pew trial granted. It is so ordered.
BASKIN, C. J., concurs.