Rat, J, — This
is a suit for damages for personal injuries sustained by plaintiff, whilst in the employment of defendant as a switchman in its yards at Kansas City, Missouri. A trial thereof in the circuit court of Jackson county, resulted in a verdict and judgment in plaintiff’s favor in the sum of twenty-five hundred dollars, from which defendant has appealed to this court. In his amended petition plaintiff charges a failure of duty on the part of defendant to furnish a sufficient number of hands in conjunction with plaintiff to carry on the business of making up trains in defendant’s yards, and in conveying signals with proper dispatch and safety; that defendant was duly notified of this; that about the time of the injury plaintiff had gone between two of the cars, and had attempted to couple them ; that failing to do so he stepped out and gave a stop signal, and then went again between the cars to effect the coupling, but that owing to the insufficiency of help employed to assist him, said stop signal failed to reach the foreman of the work, or the engineer, in' consequence of which the foreman gave the signal to the engineer to back the cars, which the engineer did, and that plaintiff’s hand was caught between two of said cars, and thereby injured, and that the same was caused without any negligence on his part.
The objection was made at the trial, which is renewed in this cqurt, that the ámended petition wholly failed to state any cause of action^ and that, therefore, no evidence should have been received in support of it. In support of this objection defendant’s counsel has [655]*655cited and quoted 2 Thompson on Negligence, 1050, where the author, after discussing the grounds upon which the . master’s liability to his servant has been placed in a number of cases, says: “From this it would seem to follow as a rule of pleading, that the plaintiff must allege in his declaration or complaint that the employer ■had notice or knowledge of the efficient cause of the injury, or ought, by the exercise of reasonable diligence, to have known it; and that the servant did not have such knowledge, or was not ignorant of it in consequence of a want of ordinary care on his’part.” But the same author, at page 1051, also says it must appear that the servant was excusably ignorant of the defective appliances, yet it does not necessarily follow that a declaration will be bad which does not so allege, although it is better that such allegation should be made, and that this is obvious when it is considered that there are many cases where mere knowledge on the part of the servant does not operate to bar his right of action.
The cases from which the rule for which defendant son bends is taken, are, we believe, from courts not in accord with this court as to the rule of pleading the contributory negligence of plaintiff, and which hold that the burden of proof is upon plaintiff to show both the negligence of defendant and his own care, which is not the rule in this state. Petty v. Railroad, 88 Mo. 308. The continuance of plaintiff in the employment with knowledge of the risk arising from the insufficient force for the required work, was set up affirmatively in the •answer as a defence to the action, as we think it should have been. We, therefore, hold the objection to the petition not well taken.
It is urged in behalf of defendant, that there is nothing in the evidence to show that plaintiff’s hand was injured by the collision of the cars, or while he was attempting to make the coupling, or as to how the accident happened. .In answer to the question tosíate [656]*656how the injury described in the petition occurred, plaintiff says: “When I first went in between the cars to make the coupling I found a difference in the draw-heads, one high and one low, and I failed to make the coupling, and I stood out and gave the signal to stop ; the cars stopped and then I went in to change the links, to turn the link over so as to make the coupling.” On re-examination, plaintiff stated in answer to the question : “ What injuries did you receive in that accident ? ’ ’ “I lost two of my fingers.” James Thorpe testified on this point: “At the time of the injury I was standing about ten car lengths from McGree, and about twenty from my brother; the cars backed down on my brother immediately after I gave the back signhl to the engineer and struck and cut his hand.” Enough is shown by the evidence, we think, to make it apparent that plaintiff ’ s hand was caught and injured, and that his fingers were lost in the manner and by the means substantially as charged in the petition.
A further objection to the sufficiency of the evidence-is that it fails to show that there was any insufficiency in the number of hands employed to do.the work. In answer to the question how many men are required and are usually considered necessary for the work in which he was engaged, the plaintiff testified: “Pour men; they can give the signals better, that is the fourth man' can, because the others are occupied with some other-work ; they have to couple and uncouple cars, and throw switches, which requires three men, and where there is a fourth he gives the signals ; we had three men at the time of my injury.” James Thorpe testified: “The whole yards there are very irregular, and the tracks are crooked, and not a proper distance apart; it is a more intricate set of tracks than tracks used for that purpose usually are : our help was short of the usual number at the time of the accident; I considered it short because we needed more men to get the signals from one to the-[657]*657other; our work was to couple cars, convey signals, throw switches, and look out for street crossings ; one man does the coupling and uncoupling, another looks out for signals, a switchman usually stands at the-switch, and the foreman usually does the cutting off when we only have a coupler, a switchman and a fore-; man, we need another man to convey signals ; we need the other man because the switchman is often on the side of the cars where he cannot give signals; we were rushed with work the night .of the accident.”
A. Gr. Hinkle, who was yard-master at the time, tesi tiffed: “I regard four men as sufficient, when we are very much crowded more men are required ; that end of the track is pretty crooked ; part of it is good.”
In the testimony of plaintiff also occurs the follow: ing : Q. “Do you regard three men as insufficient to do the business ? ” A. “ No sir; provided they are careful, and things are in proper shape.” Q. “You don’t exactly catch my meaning. I asked you how many men are usually required to transact this business, and you answered four?” A. “Yes, sir.” This statement by plaintiff that he did not regard three men as insufficient to do the business, provided they were careful and •things were in proper shape, has an important bearing Dn the question, but it is not, we think, to be regarded •as a conclusive admission on his part that three men were sufficient. The statement itself is qualified. Plain: tiff, as we have seen, stated several times that four men were necessary, and his evidence in this behalf should .be taken in its entirety. This statement of plaintiff was for the jury to consider along with the rest of his testimony, and the testimony of the other witnesses. The evidence in this branch of the case tends to show that the force was insufficient to transact the business. re,■quired, and was at least sufficient to carry the question, dong with that of a contrary tendency, to the jury for their determination.
[658]*658A further objection urged, and which we may consider in this connection, is that the evidence fails to establish any legal connection between the injury to plaintiff and defendant’s alleged negligence in not furnishing the necessary number of laborers; that “there is nothing in the testimony to show that plaintiff’s going in between the cars to turn the link and prepare the .coupling, in any manner grew out of the failure of the railway company to have a sufficient number of employes in said yard, or that any accident happened in :consequence of his going between said cars.” In this objection, as thus stated, defendant misconceives, as we ¡believe, the case plaintiff seeks to make. The evidence ‘shows that plaintiff gave a timely and proper signal for ¡the train to stop before going in between the cars to turn the link over, or to prepare to make, or make the coupling, and that the engineer and foreman failed to receive the signal thus given, in consequence of which the cars were backed upon him, and his hand caught ■and injured. It is this failure of the engineer and foreman to receive the signal to stop, duly given by plaintiff, •which the facts and circumstances in evidence must connect with, or show to be due to, the insufficiency of the help furnished by defendant. If McGree, who was plaintiff’s fellow-servant, received the signal and failed So notify the engineer or foreman, which is a view urged by defendant, or failed to receive it through his own neglect, then the defendant manifestly would not be responsible in damages for the injury thus occasioned plaintiff by his fellow-servant. Defendant, however, had the benefit of this theory of the evidence, if there ■was any to that effect, in an instruction given at his instance which so declared the law. But it is well, perhaps even necessary, to state just here, in connection with this objection in its various forms, what the evidence shows, or tends to show, as to the situation and occupation of the parties at the'time, and especially as to [659]*659where said McGee was, and what he was doing at the •time. It was in the night and about two o’clock in the •morning when the accident happened. The men composing the switching crew were: James Thorpe, a brother of plaintiff and foreman at the time, said William McGee and plaintiff. They were very much hurried, having, as the foreman testified, about twenty minutes to handle the train containing about forty cars and make it up into two sections. The work involved, .as we have seen in the evidence heretofore quoted, coupling and uncoupling the cars, giving signals, throwing switches and attending street crossings. At the time of the accident the foreman was switching cars, and about ten car lengths from the engine. McGee jvaa tending the switch about ten car lengths from said foreman, and plaintiff was about ten car lengths from McGee, and thus about twenty car lengths from the foreman and thirty from the engineer. The evidence for plaintiff shows that the tracks were not at a proper distance apart, and were much more intricate than usual. It also shows that on account of the curves in the track, and obstruction of the cars, neither the engineer nor foreman could see plaintiff or his light, which made it necessary that any signal which the plaintiff might give, should be received and transferred by some une else. When the plaintiff stepped out from between the cars, and gave the signal to stop he saw a light in the yards where McGee was expected to be, and where he would be in the ordinary and usual course of business. The plaintiff supposed the man with this light ■was McGee, and that he received the signal which he gave to stop.
In this behalf, James Thorpe testifies: “When we see a light at the next station we suppose it is one of the crew, as no one else has any business in the way. We don’t need any indication that the signal is received. It is not the custom, nor is it necessary, to return signals.” [660]*660About this time the foreman asked McGree if the cars were clear so they could be coupled, and McGree answered no, whereupon he told McGree to shove them further back, and gave the signal to the engineer to back up, which was done, and the injury to plaintiff was inflicted at this time. The foreman testified that at the time the cars struck he could not see McGree, but at the time the signal was given to back up he did see him, and his statement is, “ he (McGree) was throwing the switch at the time — he was rushing at the time, we were all rushed.” In another part of his testimony the same witness says: “ There was at the time almost double the work.” It was in this interval, which must have been. venj brief, that plaintiff must have given his signal to stop. Was it received by McGree ? He did not, as the evidence shows, communicate.it, as was his duty, and he well knew the danger attending his neglect in ■ this behalf. The evidence then locates McGree at the switch throwing the same, and very much rushed with His duties almost immediately before the accident happened, •and tends to show, and would authorize the jury to infer, or find, that McGree did not receive or convey to the engineer the signal to stop, which plaintiff had given, on account of being too much rushed with his said work.
Where there are four men engaged in this work, which number, according to evidence for xolaintiff, is required and usually employed, it seems that ‘‘ one man does the coupling and uncoupling, another looks out fox signals, the switchman usually stands at the switch and the foreman usually does the cutting off.” This is the testimony of the foreman in charge of this crew at the time. He further says that the fourth man is needed because the switchman is often on the side of the cars where he cannot give signals. Manifestly, then, the evidence tends to show that if the fourth man had been employed and at work at the time, giving his whole attention to the [661]*661signals, the timely signal to stop, given by plaintiff, would probably' have -reached the engineer and the injury to plaintiff would not have happened.
But, again, counsel for defendant urge a further question and objection' to the recovery in this action, which is that the testimony of plaintiff himself shows that whatever danger there was in working in the yard of defendant with three men, was well known to him ■more than a week before his alleged injury, and that he continued in said work, under such circumstances, and with such knowledge, until the happening of the accident. That he, therefore, voluntarily assumed the risk, waived the obligation of the defendant to furnish an additional workman, as to himself, and if he was injured by such delinquency on the part of the railway company, he is without remedy against the company for ■damages.
This was, as already stated, set up'in the answer of defendant as a further defence to the action. A proper disposition of this question, which is, we think, the most important in the case, makes it desirable, if not necessary, to state the facts especially pertinent and relevant in this connection. The evidence advanced upon the trial shows that plaintiff had considerable experience in . this branch of the railroad business ; that some months previous to the accident he had worked for a while, perhaps for three or four weeks, for defendant, in its said yards at Kansas City, where he was injured ; that about ten days before the accident happened, he had again resumed work for defendant in this capacity, at which time there were, including plaintiff, four men in the ■“switch crew,” but that a few days thereafter one of the men quit work, leaving plaintiff and two others to do the work. Plaintiff had complained of the insufficiency in the number of the hands to the yard master, previous to the accident. He also says, in his evidence, that ■while four men were necessary to do the required work, [662]*662he remained when there were bnt three men because ha-thought, by being careful, they might go ahead.
The question then is, whether the plaintiff, in remaining at work under these circumstances, must be held to have waived the discharge of defendant’s duty tc him in this behalf, and to have assumed the risk incident to the performance, or attempted performance oi the work, with three men instead of four; or, in othei. words, was his knowledge of the dangers and risks involved in his undertaking to carry on the work with the reduced force, such as will necessarily charge him-with negligence. In some of the cases of this sort where a recovery has been denied, the servant has been deprived of his right of action upon the ground oi waiver, and assumption of the risk, and in others upon the doctrine of contributory negligence. Shear. & Redf. on Neg. 126 ; Clarke v. Holmes, 7 H. & N. 937; Laning v. Railroad, 49 N. Y. 541.
Again, it is said that mere continuance in the employment, with knowledge of defective or inadequate appliances, causing the injury, is not necessarily fatal to the right of action. 3 Wood’s Railway-Law, 1460. And that such previous knowledge oi. danger is only a part of negligence, or that it is a strong circumstance tending to show negligence on the part of the servant, or at least one to be considered, but that it is not necessarily decisive or conclusive. Snow v. Railroad, 8 Allen, 450; Wood’s Master & Servant, 720; Clarke v. Holmes, 7 H. & N. 942. The servant is not necessarily chargeable with negligence in remaining in the employment, although he may know that the appliances are defective and insufficient, if the danger or risk is not such that, as a prudent man, he was bound not to assume them, and to refuse to continue in the service. Shear. & Redf. on Neg. [3 Ed.] 125; Wood’s Railway Law, 1480; Wood’s Master & Servant, 761; Snow v. Railroad, supra; Patterson v. Railroad. 76 [663]*663Pa. St. 389; Filer v. Railroad, 49 N. Y. 50; Clarke v. Holmes, 7 H. & N. 942. If the defects or insufficiency in the appliances, which term embraces the men employed to do the work, as well as other instrumentalities employed, is so great that, obviously, with the use of great caution, the danger was imminent, then, as a matter of law, the servant who incurs the risk is guilty of contributory negligence, and cannot recover. Blit, if upon this question there is substantial doubt, the question is one of fact for the jury, and a non-suit or demurrer to the evidence is not permissible. Wood’s Railway Law, 1460; Wood’s Master & Servant, 761. Perhaps the leading case upon this subject is that of Snow v. Railroad, already cited. In that case the plaintiff had been aware of the defect that caused his injury for more than two months previous to the accident, and a suggestion was there urged similar to the one now being considered, that plaintiff ought not to recover because he continued in the performance of his duties after he was aware of the defect, but the court refused to so hold as a matter of law upon the ground ‘ ‘ that his continuance in the employment did not necessarily and inevitably expose him to danger.”
Speaking for this court in the case of Conroy v. Vulcan Iron Works, 62 Mo. 39, Wagner, J., uses this language: “Where the defect is so glaring that with the utmost care and skill the danger is still imminent, so that none but a reckless man would incur it, then if the servant will engage in the hazardous undertaking he must be considered as doing it at his peril. But if the defective machinery or appliances, although dangerous, are not of such a character that they may not be reasonably used by the exercise of skill and diligence, the servant does not assume the same risk. He is required to take, and will be held responsible for the care incident to the situation in which he is placed, and whether he exercised that degree of caution is a fact for the deter[664]*664mination of the jury.” But whether based ou the one doctrine or the other, is, we think, immaterial. The facts which in the one' set of cases are held to show the waiver are such, in effect, as are held to constitute the concurring negligence in the other. Shearman & Red-field, who, in their valuable work on negligence, hold that the doctrine is a branch of the law of waiver, say that a party to any other contract having mutual obligations is allowed to fully perform his part, notwithstanding the failure of the other party to fulfill a condition precedent without necessarily waiving his right to insist upon performance of such condition at a later period. It is not fair to require from servants a more peremptory assertion of their rights against the master than would be required between parties standing upon a more equal footing. The dependent position of servants generally makes it reasonable to hold any notice on their part sufficient, however timid and hesitating, so long as it plainly conveys to the master the idea that a defect exists, and that they desire its removal. That the real question to be determined in each case is, whether, under all the circumstances, the master had a right to believe and did believe that the servant intended to waive his objections to the unfitness of his fellow servant or the defect in the materials provided for the work. It is also held in a number of cases that the assumption of the risk only follows as a result from the servant’s remaining after knowledge of the defect, where he continues without objection or protest or complaint on his part. Thompson on Negligence, 1009, and a line of cases cited in the note to the text.
Under these authorities the. question is, was the plaintiff reasonably justified in believing that three men, by being careful, might go ahead with the work, though the same might be more dangerous than usual; or was the danger in so doing so obvious and imminent, and injury so probable, that under the same circumstances a [665]*665prudent man would have regarded it as negligent to perform the particular duties which the work required ? Perhaps reasonably prudent men, similarly situated, might have taken different views of this question of their duty in the premises, and if so the case is one for the jury: Indeed the theory of the defence to this action is in part that three men could properly and safely do the required work. To this effect is the testimony of the witness, Sheriff, the general yard master of the defendant. Plaintiff, with the two remaining men, safely performed the work, or similar, work to that in which he was engaged when injured, for a number of days after the other man quit. And this, it is said,,is a circumstance entitled to be considered and bearing upon the question of plaintiff’s contributory negligence. Wood on Master and Servant, p. 760, sec. 386; Patterson v. Railroad, 76 Pa. St. 389.
While as the event shows the judgment of plaintiff in remaining was erroneous, the danger greater than it appeared to him, it tends to show that if was. not so great or obviously imminent that injury therefrom could not reasonably be expected to be avoided “by being careful,” which, in this connection, we think, means by the use of additional or more than ordinary precaution. Shearman & Redfield on Negligence, 125. The absence of the fourth man rendered the labor of coupling, uncoupling, switching and handling the cars more onerous generally and more than ordinarily dangerous, but we think we ought not to say upon the evidence -before us, as a matter of law, that plaintiff waived the discharge of the defendant’s duty to him to furnish sufficient help, and that he voluntarily assumed the particular risk or danger that caused his injury, or that the evidence is such as conclusively indicates a state of facts and circumstances that require him to peremptorily abandon and discontinue his said employment. In this connection we may add that the defendant ashed [666]*666and the court gave at its instance an instruction as follows :
“If you find from all the facts and circumstances in evidence that there was an insufficient number of men furnished by the defendant to do the work in which the plaintiff was engaged, with safety; that the danger of carrying on such work with the number of men engaged therein was so apparent, or was known to the plaintiff to-be so great that a man of ordinary prudence and caution would not have engaged or continued therein, then the plaintiff was guilty of negligence, and you shall find for the defendant.”
It only remains to consider briefly the action of the court upon instructions. As for those given for plaintiff and at his instance, it is perhaps sufficient to say. that no objection is made to the first. That the second and third confined the inquiry to the particular negligence declared on in the petition and required the jury to find that the plaintiff was injured in consequence thereof, and that he was free from negligence on Ms own part, contributing to the result. The objections urged against them are covered by the discussion already had in the progress of this opinion. The fourth given for plaintiff, and the ■ one given by the court of its own motion, are counterparts to the second given for defendant above set out and announced the same doctrine. Where this is so,, even if they are erroneous, a party cannot complain. No specific objections are made or urged in the brief of counsel to the court’s action as to the refused instructions. They were, we think, properly refused.
Finding no error in the record, the judgment of the circuit court is affirmed for the reasons above stated.
All concur, except Iienry, C. J., not sitting.