Cook, J.,
delivered tbe opinion of tbe court.
Appellant states tbe case before us in this way:
“This was a suit on the part of tbe appellee against the appellant to recover damages for injuries received while be was yard conductor in tbe yards of tbe appellant at Armory, Miss. Appellee alleges that B. G. Trickett, who was also in the employ of tbe appellant as yardmaster in said yards, was a superior agent and officer to tbe appellee. Tbe declaration further alleges that tbe appellant failed to furnish appellee a safe and suitable place to work, and failed to supply safe and suitable tools to work with, and competent and efficient employees with whom to work. There are three counts in tbe declaration, all of which allege about tbe same grounds for recovery.
“To this declaration appellant first pleaded tbe general issue, and in its second plea it alleges that tbe appellee, employed as foreman of tbe switch engine in tbe yards, was also night yardmaster, and bad charge of all work done in the yards at night with the' engines; and tbe appellant further alleges that the appellee was not entitled to recover, because tbe injuries received were brought about by matters and things the risk of which be bad assumed in entering the employ of tbe appellant, while discharging bis duties as switch foreman [195] and yardmaster. The appellant further gave notice under the general issue of its defense, alleging that the injury was caused by the gross negligence on the part of the appellee, alleging that there was a safe way to do the work, and that he adopted the dangerous and unsafe mode of doing this work, and that if he had adopted the safe and sane method no injury could have happened to him.
“Appellee demurred to the second plea of appellant, on the ground that it was no defense to this cause of action, which demurrer was sustained. To the sustaining of the demurrer the appellant excepted to the ruling of the court. The case went to trial on issue joined, and the jury rendered a verdict of ten thousand dollars in favor of the appellee. The appellant thereupon made its motion for a new trial. The causes for the motion are set out in the record. The court overruled the motion for a new trial, to which the appellant then and there excepted, and appeals its case to this court.”
The main ground for reversal seems to be that inasmuch as appellee was a conductor “in charge of dangerous and unsafe cars,- or engines,” and inasmuch as he knew of the dangerous and unsafe character of the cars and engines, and “voluntarily operated them,” he cannot claim the benefit-of section 193 of the Constitution, and the statutes based on said section. It is true that the railroad company gave to the employees filling the job in question the title of “ conductor • of the yards,”’ but we do not think that there was much significance in the name. Whether he was a conductor in the constitutional sense must be determined by what the term “conductors and engineers” was commonly understood to mean at the -time the Constitution was adopted, judge Truly, speaking for this court in Railroad Co. v. Parker, 88 Miss. 197, 40 So. 747, used this language:
“It is perfectly manifest that the exception expressed in section 193 of the Constitution, which, as to conduc[196] tors and engineers in charge of dangerous or unsafe engines or cars voluntarily operated by them, still permits their knowledge of the dangerous or defective condition of such cars or engines to be interposed to prevent their recovery for injuries caused thereby, does not apply to other classe's of employees; certainly not to a section foreman,- as was the appellee in the instant case. Buckner v. Railroad, 72 Miss. 878, 18 So. 449. The exception referred to is applicable solely to ‘conductors and engineers,’ as those terms are generally understood. The reason of the exception was the hope of instilling into the minds of the specially excepted operatives a feeling of extra caution, by denying them the right of recovery which was expressly granted other employees who might operate other machinery with full knowledge of its dangerous and defective condition. This provision of the Constitution was based upon grounds of public policy and was designed for the protection of human life, so often solely dependent upon the care, caution, and skill of engineers and conductors. Railroad v. Guess, 74 Miss. 170, 21 So. 50. The very terms of the constitutional provision that knowledge of such defective or dangerous condition should constitute no defense, except as to certain named classes, necessarily conveys the intention of the law not to permit such knowledge to defeat recovery by others. We cannot assent to the contention that a section foreman in charge of a hand car is a conductor, within the meaning intended to be conveyed by the Constitution.” ’
Looking to the record in the present case, we find that appellee was the foreman in charge of the night switching crew at Amory. His immediate superior was R. G-. Trickett, who was wardmaster, and who usually bossed the switching in the daytime. On the occasion when the injury complained of was inflicted, Mr. Trickett was in charge of the operation of the engine and cars, and gave the orders which were obeyed by appellee, [197] his subordinate. Neither of these employees were “conductors” in the constitutional sense, and could not be made so by merely calling them conductors.
The supreme court .of Wisconsin, in Hartford v. Northern Pacific R. Co., 91 Wis. 374, 64 N. W. 1033, in construing a statute providing that ‘ ‘ every railroad corporation . . . shall be liable for damages sustained by any employee thereof . . . without contributory negligence on his part, when such damage is caused by the negligence of any train dispatcher, telegraph operator, superintendent, yard master, conductor or engineer, or of any other employee, who has charge or control of any stationary signal, target point, block or switch,” said:
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Cook, J.,
delivered tbe opinion of tbe court.
Appellant states tbe case before us in this way:
“This was a suit on the part of tbe appellee against the appellant to recover damages for injuries received while be was yard conductor in tbe yards of tbe appellant at Armory, Miss. Appellee alleges that B. G. Trickett, who was also in the employ of tbe appellant as yardmaster in said yards, was a superior agent and officer to tbe appellee. Tbe declaration further alleges that tbe appellant failed to furnish appellee a safe and suitable place to work, and failed to supply safe and suitable tools to work with, and competent and efficient employees with whom to work. There are three counts in tbe declaration, all of which allege about tbe same grounds for recovery.
“To this declaration appellant first pleaded tbe general issue, and in its second plea it alleges that tbe appellee, employed as foreman of tbe switch engine in tbe yards, was also night yardmaster, and bad charge of all work done in the yards at night with the' engines; and tbe appellant further alleges that the appellee was not entitled to recover, because tbe injuries received were brought about by matters and things the risk of which be bad assumed in entering the employ of tbe appellant, while discharging bis duties as switch foreman [195] and yardmaster. The appellant further gave notice under the general issue of its defense, alleging that the injury was caused by the gross negligence on the part of the appellee, alleging that there was a safe way to do the work, and that he adopted the dangerous and unsafe mode of doing this work, and that if he had adopted the safe and sane method no injury could have happened to him.
“Appellee demurred to the second plea of appellant, on the ground that it was no defense to this cause of action, which demurrer was sustained. To the sustaining of the demurrer the appellant excepted to the ruling of the court. The case went to trial on issue joined, and the jury rendered a verdict of ten thousand dollars in favor of the appellee. The appellant thereupon made its motion for a new trial. The causes for the motion are set out in the record. The court overruled the motion for a new trial, to which the appellant then and there excepted, and appeals its case to this court.”
The main ground for reversal seems to be that inasmuch as appellee was a conductor “in charge of dangerous and unsafe cars,- or engines,” and inasmuch as he knew of the dangerous and unsafe character of the cars and engines, and “voluntarily operated them,” he cannot claim the benefit-of section 193 of the Constitution, and the statutes based on said section. It is true that the railroad company gave to the employees filling the job in question the title of “ conductor • of the yards,”’ but we do not think that there was much significance in the name. Whether he was a conductor in the constitutional sense must be determined by what the term “conductors and engineers” was commonly understood to mean at the -time the Constitution was adopted, judge Truly, speaking for this court in Railroad Co. v. Parker, 88 Miss. 197, 40 So. 747, used this language:
“It is perfectly manifest that the exception expressed in section 193 of the Constitution, which, as to conduc[196] tors and engineers in charge of dangerous or unsafe engines or cars voluntarily operated by them, still permits their knowledge of the dangerous or defective condition of such cars or engines to be interposed to prevent their recovery for injuries caused thereby, does not apply to other classe's of employees; certainly not to a section foreman,- as was the appellee in the instant case. Buckner v. Railroad, 72 Miss. 878, 18 So. 449. The exception referred to is applicable solely to ‘conductors and engineers,’ as those terms are generally understood. The reason of the exception was the hope of instilling into the minds of the specially excepted operatives a feeling of extra caution, by denying them the right of recovery which was expressly granted other employees who might operate other machinery with full knowledge of its dangerous and defective condition. This provision of the Constitution was based upon grounds of public policy and was designed for the protection of human life, so often solely dependent upon the care, caution, and skill of engineers and conductors. Railroad v. Guess, 74 Miss. 170, 21 So. 50. The very terms of the constitutional provision that knowledge of such defective or dangerous condition should constitute no defense, except as to certain named classes, necessarily conveys the intention of the law not to permit such knowledge to defeat recovery by others. We cannot assent to the contention that a section foreman in charge of a hand car is a conductor, within the meaning intended to be conveyed by the Constitution.” ’
Looking to the record in the present case, we find that appellee was the foreman in charge of the night switching crew at Amory. His immediate superior was R. G-. Trickett, who was wardmaster, and who usually bossed the switching in the daytime. On the occasion when the injury complained of was inflicted, Mr. Trickett was in charge of the operation of the engine and cars, and gave the orders which were obeyed by appellee, [197] his subordinate. Neither of these employees were “conductors” in the constitutional sense, and could not be made so by merely calling them conductors.
The supreme court .of Wisconsin, in Hartford v. Northern Pacific R. Co., 91 Wis. 374, 64 N. W. 1033, in construing a statute providing that ‘ ‘ every railroad corporation . . . shall be liable for damages sustained by any employee thereof . . . without contributory negligence on his part, when such damage is caused by the negligence of any train dispatcher, telegraph operator, superintendent, yard master, conductor or engineer, or of any other employee, who has charge or control of any stationary signal, target point, block or switch,” said:
“There were at the time of the enactment, . . . and have been for a long period of years theretofore, and have been subsequently, in railroad service everywhere in this country, as a matter of common" knowledge, officers known as ‘superintendents’ in the operating department of the road — general superintendents of the whole line, and superintendents of divisions. The general duties of such superintendents are intimately connected with the movement of trains and cars. Now, it must be presumed that the legislature used the word as it was commonly used. They had in mind the officers of railroads to whom the term was generally applied. The position of superintendent in the railway service is as definitely and well known as that of train dispatcher, telegraph operator, conductor, or engineer. It could not be sincerely claimed that the word ‘conductor’ can be applied to the foreman of a section gang or of a bridge crew, because he merely conducts or manages the work, or that it can be applied to any other conductor than the one who manages the railroad train; and yet the act does not say ‘ train conductor. ’ It could not be sincerely claimed that the word ‘engineer’ can be applied to the engineer who locates tracks and does en[198] gineering work of that kind, or who runs some little stationary pumping engine, or to any one of many other persons connected with . railroad service that might properly be called ‘engineers’; and yet the áct does not say ‘locomotive engineer.’ And the same illustration might be given in respect to each of the persons specifically named in the act. It may thus be clearly seen that to apply the word ‘superintendent’ to the mere foreman of a repair shop would be entirely inconsistent with the obvious purpose of the act.”
Learned counsel for appellant has filed an able and interesting brief in which' he discusses the difference between the doctrine of assumption of risk and contributory negligence, and undertakes to demonstrate that plaintiff below is precluded from recovery because he was aware of the defective and unsafe condition of the engine and knowingly assumed the risk of operating same. We do not believe that this question is involved in this case. It makes no difference that the plaintiff operated the engine knowing it to be unsafe; he does not belong to the class excepted by section 193 of the Constitution.
If he was guilty of contributory negligence, this, of course, under our statute, will not bar a recovery. Plaintiff, according to all the evidence, was acting under the orders of his superior, who had a right to control his services, and the doctrine of assumption of risk does not apply to his case.
The criticism of plaintiff’s instructions, if justified, cannot help appellant, for the reason that all agree that the engine was defective and dangerous, and had been so for quite a while before the injury. The railroad company was under the duty to at least exercise reasonable care to furnish a reasonably safe engine, and there is no pretense that this was done.
Affirmed.