McCLELLAN, J. —
Two abstracts have been filed in this case. The first presented no question in such a way as that it could be reviewed by the court. That one, it appears, was withdrawn, and another properly presenting the rulings sought to be revised was filed. But h copy of the first one was left in the record, and was supposed by the court to be the abstract upon which the cause'was submitted, the fact that another had been filed not being known to the court; and upon this original abstract the judgment below was affirmed on the ground that nothing for review was shown by the abstract. On an application for rehearing, however, this mistake is called to the attention of the court. A rehearing is' ordered; and we shall proceed to a consideration of the case as presented by the second abstract.
If the court erred in overruling the demurrer to the 5th and 7th counts, the error was without injury to the defendant since the general affimative charge was given for the defendant on each of these counts.
The appellant Can take nothing on account of the action of the trial court in sustaining demurrers to several special pleas interposed by the defendant. ' These pleas were intended to set up contributory negligence on the part of the plaintiff as a bar to each of the several counts. Whether they were severally good or bad, it did not prejudice the defendant to have to amend each of them by adding an averment to the effect that the [255]*255danger, described by the pleas, and which it was alleged the plaintiff voluntarily incurred and in consequence suffered the injuries of which he complains,ivas so great that a man of ordinary -prudence would not have incurred it. The statement of this conclusion upon the facts laid in the pleas, or of this characterization of the danger, if it is to be so considered, did not impose any additional burden on the defendant. With or without this additional averment, it was upon the pleader to show a situation of such danger that the plaintiff was wanting in ordinary care in dealing with it, or, in other words, that a-man of ordinary care and prudence would not have voluntarily acted as plaintiff is alleged to have acted in respect of it. So that, as the defendant lost nothing, nor was in anywise additionally burdened by being put to this amendment, and as the amendment was made and the pleas with this averment in them were sustained by the court, and a trial had upon them in which defendant had the full benefit of everything. that could have been of advantage to him under the original pleas, it is manifest that these rulings, whether correct or not, did not prejudice it.
If it be conceded that the proposed evidence of Donohoo as to what Woodward said- to him about Ritchie’s blowing the whistle should have been received, the error of its exclusion could not have prejudiced the defendant. The issue was simply whether Ritchie sounded the whistle of his engine at that time and place. Both Donohoo and Woodward testified affirmatively to the fact and described the blowing, and both testified further that the latter called the former’s attention to the fact while the whistle was being sounded. We are unable to see that proof of the particular words used by Woodward in calling Donohoo’s attention to the blowing could possibly have benefitted the defendant in any w 3/y •
Applying the law declared in the case of Woodward Iron Co. v. Herndon, ante, p. 191, to the facts of this case, the conclusion must be that Neal, the foreman of the trackmen, of whom plaintiff was one, and in charge and control of the hand-car which collided with the yard or switch engine in the smoke, where Neal was killed and plaintiff received the injuries for which he now sues, was negligent in attempting to the run hand-car [256]*256through the smoke without taking precautions against engines and trains coining through the smoke from the opposite direction. The evidence in that case (which is an action by Neal’s personal representative for damages resulting from his death) differs from what is shown here in this particular : that there is no evidence here as to the customary speed of the engine which collided with the hand-car, or to the effect that its rate of speed was greatly in excess of the usual and customary rate on the occasion of the collision, while there was evidence .in that case of these facts; and because of that evidence it was there held th at it was not for the court to declare as matter of law, that the intestate was guilty of proximate contributory negligence. These facts not being in this case, the converse of .the proposition is to be declared; that Neal as matter of law was guilty of negligence in running the hand-car, or causing it to be run, into the of mass smoke, covering and entirely concealing the track for two or three hundred yards, and in which defendant’s yard or switch engine with cars attached was liable and likely to be moving at all hours of the day.
The complaint in several of its counts relies upon this negligence of Neal as the ground of recovery. The 2d count, drawn under clause 2 of section 2590 of the Code of 1886, for instance, avers that at the time of the collision the hand-car and the employes, including the plaintiff, then on the car were under the superintendence of Neal, “who was then and there in the service of defendant and intrusted by defendant with such superintendence,” and that the injuries complained of resulted from Neal’s negligence while in the exercise of such superintendence, in causing the car to be run along the track hidden by the smoke without stopping to look, and without taking any precautions to ascertain whether an engine or train of cars was approaching from the other direction. The 3d count is under the 5th clause of section 2590 of the Code. It avers that Neal had charge and control of the hand-car, and negligently caused it to be run into the smoke, &c., without taking precautions, &c., against engines or trains that might be there. And the 6th count; under clause 3 of the statute, avers that plaintiff and the other employes on the hand-car were under the orders and directions of Neal, and .were [257]*257bound to conform and did conform to Ms orders; and that the injuries were caused by the negligence of said Neal in ordering or causing said hand-car to be run into this dangerous place without taking precautions against engines or trains approaching from the opposite direction.
One theory of defense under these counts is that the plaintiff must be held to have assumed the risks incident to Neal’s negligence by remaining on the hand-car when Neal caused it to be run into this dangerous place. This idea is unsound. To sustain it would be to emasculate the Employer’s Liability Act in respect of its second, third and fifth clauses, and to rehabilitate the common law doctrine of fellow servants as applicable to the cases provided for in those clauses, when the clear purpose of the act is to destroy the defense of assumption of risk by the injured employe in the several cases stated in the counts referred to. An employe in such cases may be guilty of such contributory negligence as will bar his recovery, but he does not assume the risks incident to the negligence of a superintendent, or of a person to whose orders he was bound to conform and did conform, or of a person in charge and control of a locomotive engine, car, &c. — Reno Employer’s Liability Acts, § 190.
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McCLELLAN, J. —
Two abstracts have been filed in this case. The first presented no question in such a way as that it could be reviewed by the court. That one, it appears, was withdrawn, and another properly presenting the rulings sought to be revised was filed. But h copy of the first one was left in the record, and was supposed by the court to be the abstract upon which the cause'was submitted, the fact that another had been filed not being known to the court; and upon this original abstract the judgment below was affirmed on the ground that nothing for review was shown by the abstract. On an application for rehearing, however, this mistake is called to the attention of the court. A rehearing is' ordered; and we shall proceed to a consideration of the case as presented by the second abstract.
If the court erred in overruling the demurrer to the 5th and 7th counts, the error was without injury to the defendant since the general affimative charge was given for the defendant on each of these counts.
The appellant Can take nothing on account of the action of the trial court in sustaining demurrers to several special pleas interposed by the defendant. ' These pleas were intended to set up contributory negligence on the part of the plaintiff as a bar to each of the several counts. Whether they were severally good or bad, it did not prejudice the defendant to have to amend each of them by adding an averment to the effect that the [255]*255danger, described by the pleas, and which it was alleged the plaintiff voluntarily incurred and in consequence suffered the injuries of which he complains,ivas so great that a man of ordinary -prudence would not have incurred it. The statement of this conclusion upon the facts laid in the pleas, or of this characterization of the danger, if it is to be so considered, did not impose any additional burden on the defendant. With or without this additional averment, it was upon the pleader to show a situation of such danger that the plaintiff was wanting in ordinary care in dealing with it, or, in other words, that a-man of ordinary care and prudence would not have voluntarily acted as plaintiff is alleged to have acted in respect of it. So that, as the defendant lost nothing, nor was in anywise additionally burdened by being put to this amendment, and as the amendment was made and the pleas with this averment in them were sustained by the court, and a trial had upon them in which defendant had the full benefit of everything. that could have been of advantage to him under the original pleas, it is manifest that these rulings, whether correct or not, did not prejudice it.
If it be conceded that the proposed evidence of Donohoo as to what Woodward said- to him about Ritchie’s blowing the whistle should have been received, the error of its exclusion could not have prejudiced the defendant. The issue was simply whether Ritchie sounded the whistle of his engine at that time and place. Both Donohoo and Woodward testified affirmatively to the fact and described the blowing, and both testified further that the latter called the former’s attention to the fact while the whistle was being sounded. We are unable to see that proof of the particular words used by Woodward in calling Donohoo’s attention to the blowing could possibly have benefitted the defendant in any w 3/y •
Applying the law declared in the case of Woodward Iron Co. v. Herndon, ante, p. 191, to the facts of this case, the conclusion must be that Neal, the foreman of the trackmen, of whom plaintiff was one, and in charge and control of the hand-car which collided with the yard or switch engine in the smoke, where Neal was killed and plaintiff received the injuries for which he now sues, was negligent in attempting to the run hand-car [256]*256through the smoke without taking precautions against engines and trains coining through the smoke from the opposite direction. The evidence in that case (which is an action by Neal’s personal representative for damages resulting from his death) differs from what is shown here in this particular : that there is no evidence here as to the customary speed of the engine which collided with the hand-car, or to the effect that its rate of speed was greatly in excess of the usual and customary rate on the occasion of the collision, while there was evidence .in that case of these facts; and because of that evidence it was there held th at it was not for the court to declare as matter of law, that the intestate was guilty of proximate contributory negligence. These facts not being in this case, the converse of .the proposition is to be declared; that Neal as matter of law was guilty of negligence in running the hand-car, or causing it to be run, into the of mass smoke, covering and entirely concealing the track for two or three hundred yards, and in which defendant’s yard or switch engine with cars attached was liable and likely to be moving at all hours of the day.
The complaint in several of its counts relies upon this negligence of Neal as the ground of recovery. The 2d count, drawn under clause 2 of section 2590 of the Code of 1886, for instance, avers that at the time of the collision the hand-car and the employes, including the plaintiff, then on the car were under the superintendence of Neal, “who was then and there in the service of defendant and intrusted by defendant with such superintendence,” and that the injuries complained of resulted from Neal’s negligence while in the exercise of such superintendence, in causing the car to be run along the track hidden by the smoke without stopping to look, and without taking any precautions to ascertain whether an engine or train of cars was approaching from the other direction. The 3d count is under the 5th clause of section 2590 of the Code. It avers that Neal had charge and control of the hand-car, and negligently caused it to be run into the smoke, &c., without taking precautions, &c., against engines or trains that might be there. And the 6th count; under clause 3 of the statute, avers that plaintiff and the other employes on the hand-car were under the orders and directions of Neal, and .were [257]*257bound to conform and did conform to Ms orders; and that the injuries were caused by the negligence of said Neal in ordering or causing said hand-car to be run into this dangerous place without taking precautions against engines or trains approaching from the opposite direction.
One theory of defense under these counts is that the plaintiff must be held to have assumed the risks incident to Neal’s negligence by remaining on the hand-car when Neal caused it to be run into this dangerous place. This idea is unsound. To sustain it would be to emasculate the Employer’s Liability Act in respect of its second, third and fifth clauses, and to rehabilitate the common law doctrine of fellow servants as applicable to the cases provided for in those clauses, when the clear purpose of the act is to destroy the defense of assumption of risk by the injured employe in the several cases stated in the counts referred to. An employe in such cases may be guilty of such contributory negligence as will bar his recovery, but he does not assume the risks incident to the negligence of a superintendent, or of a person to whose orders he was bound to conform and did conform, or of a person in charge and control of a locomotive engine, car, &c. — Reno Employer’s Liability Acts, § 190.
The only defense possible to the defendant under counts 2, 3 and 6 on the evidence in this record is that of contributory negligence oh the part of the plaintiff in remaining without objection on the hand-car when Neal caused it to be run into the smoke. Neal had charge and control of the car ; plaintiff and the other employes on the car were under his orders, and in consonance therewith propelled the car into the place of danger, and, it may also be said, that he had superintendence intrusted to him in respect of the car and its crew. It approached the smoke at a high rate of speed. The plaintiff was one of four men working at the levers, his place being at the rear of the car. Neal was on the front of the car looking ahead, and one of the lever men was directly in front of the plaintiff. The brake, by means of which the car could be stopped, was not near the plaintiff, and was in charge of another employe. Plaintiff had no authoity to stop the car, or otherwise control it, and could not himself have stopped it. He could not get off it without incurring great danger. [258]*258There is evidence from which the jury might have inferred that plaintiff did not become aware of the dangerous condition of the track ahead until just before the car entered the smoke which constituted the element of danger. Under these circumstances, all that plaintiff could possibly have done would have been to request Neal to. stop the car and either take precautions against a collision in the smoke or allow him, plaintiff, to get off. This he did not do. And his omission in this respect, coupled with his knowledge, if the jury found he had such .knowledge, of the dangerous character of the place the car was running into, and of a custom to stop the car there when smoke covered the track and take certain precautions against trains coming from the opposite direction, is made the real basis of two instructions requested by the defendant to ■ the effect that such failure, with such knowledge of the situation, was as matter of law proximate contributory negligence on his part, barring a recovery. These instructions, as also the affirmative charge on counts 2, 3 and 6, asked by defendant on the theory that the evidence without conflict showed that plaintiff was guilty of contributory negligence, were, in our opinion, properly refused. Taking all the facts and circumstances bearing on the point into consideration, it was for the jury, and not the court, to say whether a man of ordinary care and prudence, brought suddenly to a realization of the danger, with, it may be, only a moment or two to conceive the situation and act upon it, accustomed, it probably is, to rely upon Neal, the foreman, and to obey him, would have asked or demanded of Neal that the car be stopped, and the usual precautions be taken, or he be allowed to get off. If the jury found that plaintiff knew sufficiently long before the dangerous part of the tract was reached that smoke obscured it, and that it was not Neal’s purpose to stop and send z, flagman forward before entering the smoke, as seems to have been the custom, to have considered what he should do, and then failed to take any steps to avoid the danger, it may be they should have sustained the plea of contributory negligence, if they found the other facts hypothesized in charges 12 and 16 to exist. But if they found there was not such time and opportunity for consideration and action as a man of ordinary prudence would under all the circumstances [259]*259have availed himself of and sought to have the car stopped, they should not have sustained this plea. The true doctrine applying, here is thus stated by Roberts and Wallace in their work on the Duty and Liability of Employers : ‘ ‘ But where by the negligence of the employer, or those for whom he is responsible, the plaintiff has been suddenly placed in a position of extreme peril, and thereupon does an act which under the circumstances known to him he might reasonably think proper, but which those who have a knowledge of all the facts, and time to consider them, are able to see was not in fact the best,, the employer cannot insist that under the circumstances the plaintiff has been guilty of negligence. ‘Perfect presence of mind, accurate judgment, and promptitude under all circumstances, are not to be expected,’ said Jambs, L. J., in The Bywell Castle, 4 P. D. 219, 222. ‘You have no right to expect men to be something more than ordinary men,’ ” p. 440.
There was evidence from which the jury might have concluded that Ritchie was negligent in not giving the customary signals of the approach of his engine before entering and while in the smoke. It being, as we have seen, a question for the jury whether plaintiff was guilty of contributory negligence, the court properly refused the general affirmative charge for defendant on the whole complaint and upon the 1st and 4th counts, as well as upon the 2d, 3d and 6th counts referred to above, as also, of course, the 8th charge to find for defendant on the plea of contributory negligence, if the jury believed the evidence.
Affirmed.