
    The Columbus and Xenia Railroad Company, and The Little Miami Railroad Company v. Samuel Webb’s Administratrix
    In an action to recover of a railroad company for injuries received by a brakeman while in the service of the company, by reason of the breaking of the chain, and giving way of the brake while working it, owing to a defect therein, whereby he was thrown from the train and injured. Held :
    1. That it was the duty of the company to use all reasonable and ordinary care in providing safe and well-equipped brakes for the brakemen, and that if the company, in neglect of such duty, has procured a defective and improper brake, and placed the brakeman to work the same, without an opportunity to know such, defect, and he was thereby injured, a right of action would thereupon arise against the company.
    2 That if the existence of such defect at the time of the accident, was owing to the neglect of other operatives of the road, supposed to be competent, whose duty it was to have inspected said brake, but who neglected so to do, and negligently suffered the same to continue in use, when not road-worthy, unknown to the company, it is not liable therefor, inasmuch as such delinquent inspector is to be regarded a fellow-servant of the brakeman, in a common service.
    Error to the superior court of Franklin .county.
    On June 22, 1858, Samuel Webb’s administratrix brought a civil action in the superior court of Franklin county, against the Columbus and Xenia, and Little Miami Railroad Companies, jointly using-a railroad, extending between Columbus and Cincinnati, in this state. The action was brought under the act of March 25, 1851, “requiring compensation for causing death by wrongful act, neglect or default.” (2 S. & C. Stat. 1139.)
    The petition states the cause of action to be, in substance, this — that while Webb was in the service of the defendants, in the capacity of brakeman on one of their trains of cars, en route from Cincinnati to Columbus, on the 4th of July, 1858, as the train was nearing the Branch creek station, where it was to stop , he, at the usual signal of the engineer for that purpose, attempted to wind up one of the brakes on the cars, to check the speed of the train, and that in doing so the brake-chain parted, and the brake gave way, and he was thereby thrown between the cars and run over by the train, and so injured that he died the same day. That all this was the result of the carelessness of the defendants, in providing and using a defective and unsafe brake and chain, and in nowise attributable to any fault or want of care on the part of Webb.
    The defendants answer, setting up five separate defenses, amounting, in substance, to this — that Webb assumed the position of brakeman, well knowing its dangers; that the defendants provided for him the best safeguards against accident, in the management of brakes, that scientific knowledge on the subject afforded; that the brake and chain which gave way were perfect and sufficient, so far as human foresight and examination could determine; and that the parting of the chain was an unavoidable occurrence incident to the business, and against which no provision could be made other than that anticipated by the defendants, and that Webb’s injuries and death were not in any manner attributable to any want of care on their part, but were the result of his- own careless and reckless way of working his brake, in disregard of.the means at hand for his safety against accident and injury in the event of the brake giving way.
    At the April term, 1859, of the superior court, the cause was tried to a jury.
    Evidence was given, on the part of the plaintiff below, tending to show “ That deceased was, on the 4th day of July, AD. 1857, a brakeman in defendants’ employ, for hire, and had for a year or more, served defendants in that capacity. That on said 4th day of Juty, AD. 1857, he was brakeman upon baggage car No. 4, of defendants, at its rear end, next the first passenger car. That while winding up the brake in his charge, in obedience to tbe signal of the engineer (the speed being slackened upon approach to Branch creek station), the chain of said brake parted, and said Webb was thrown between the cars and killed. That at the time of the accident, said Webb was in the discharge of his duty, and worked his brake in his usual manner, and in the manner practiced by him upon approach to four stations previously, that day, after leaving Cincinnati, and that he had been working said brake in a manner quite common with brakemen.
    “ And the defendants gave evidence, tending to show: that the car upon which this accident happened, had been almost entirely rebuilt at the machine shop of defendants during the month of May, 1857, and was as good as new; that a new arid larger brake had been attached, but the old chain, which had been used some time, was retained, but that the chain was larger than most of those previously in use, and as large as those afterward adopted, and as then in use by railroad companies generally; also, that said chain was as large as could be used for the purpose. That when said car was rebuilt, the master machinist of defendants’ shop caused his foreman to try said chain, after the new rod was attached, in their usual way, by winding the chain up, until it came home to the wheels, using the necessary force to do so. That both of said men were skillful and competent mechanics, and that, after said test, the master machinist passed the car from the shop, as, in his judgment, road-worthy. That on said 4th day of July, A.D. 1857, before said car No. 4 left the railroad station, the inspector of cars, whose duty it was to inspect each car.before its departure, daily, examined this car with three men, in his usual manner, and in the manner and with the care customary and usual to railroad companies converging at the Little Miami depot at Cincinnati, Ohio, and caused one man to step upon the platform and apply the brakes until the bosses or cushions of the brake were brought home close. That the brakes were so brought home to the wheels, and that after the other men had examined the under parts of the car, and made the examinations usual in such cases, and such as said inspector regarded as ample, the inspector reported the said car all right.’ That said inspector had been a civil engineer and a practical carpenter, and had been employed by defendants, a few weeks previously to take charge of this special department of the inspection of cars, the evidence showing that, previous to said employ ment, this inspector had not been engaged in the inspection of cars, but had been engaged in car building.
    “ The plaintiff gave evidence tending to show, that the said test and inspection was not so made as to determine whether said chain and apparatus were of sufficient strength, or sound, or free from defects.
    “No evidence was given to show that any defect, whether latent or patent, existed at the time of said inspection, eithei in the- chain or its working apparatus, prior to the accident or afterward, except the fact that it broke; and, to all outward appearance, it appeared sound and perfect.
    “ The defendants also gave evidence tending to show that they purchased their brake-chains at houses of first repute; that the chains were manufactured at Pittsburg, by a house which stood high in credit as to the materials used in the manufacture of their chains; and that the chain in question was so purchased, and as good as chains generally in use for the purpose in question; but no chains are manufactured expressly for that purpose. That from latent defects and causes not discernible by the eye, or upon inspection, chains, apparently the best, do break, and that such accidents are inevitable and unavoidable.
    “ There was no evidence given of any other, or different test or inspection known, or in use by railroads, to determine the sufficiency of brake-chains, than that used by the defendants in the premises; and that extraordinary tests might lessen the tenacity and value of the chains.
    “The defendants also gave evidence tending to show, that the brakes could, by brakemen who are properly instructed, be pulled home without the brakeman being thrown from the car in consequence of the chain breaking; but that the deceased never was formally directed by the company, or its agents, as to the proper mode of braking the cars; and that no similar injury had happened to any brakeman previously, by the breaking of a chain, although two or three chains weekly were broken upon the cars which arrive at, or depart from, the railroad station of defendants at Cincinnati, said cars, freight and otherwise, being several hundred.
    
      “ The defendants also gave evidence tending to show, that brakemen often do so manage-the brakes, that if the chain should break, they would lose their equilibrium, and be in 'imminent danger of being thrown between the cars, instead ■>f back against the end of the cars behind the brake.
    “Whereupon, the court charged the jury:
    “ 1. That the railroad company is to be treated, in all respects, as if it were an individual; that as with a person, so the company must be supposed to be present at its shops, directing the work or doing the work itself. Therefore, when the workmen in the shop do a job, it must be taken as done under the immediate superintendence of the company, as if the company were a person. Erom this it follows, that when a car is sent out of the shop, to be used on the road, the company must send it out in as good and perfect a condition as ordinary care and reasonable diligence, by any known means, can make it; and if - it fails to be so, the company is liable for any injury sustained by reason of such failure; and, upon such failure, the jury must be satisfied that the company used all known means to make the car, or, in this case, the chain, as good, strong, and perfect, as it could be made; and for this purpose, if the company relied upon tests, they must apply such known tests as will prove it, beyond reasonable question; and if they rely on tests which do not sufficiently try it, that it is their own folly, and they must be held answerable for it; that no particular tests were required, but the defendants were bound to use the best known tests.
    
      “ 2. That it was not sufficient that the chain was made by a manufacturer of the first reputation, nor of the best quality of iron; this is all proper for them to show, and, perhaps, necessary to show; but it must be further shown, that the chain was manufactured in the best known manner.
    “ 3. That if the company rely upon-inspection, that inspection must be careful, vigilant, effectual, and must be as complete as known means of inspection could make it.
    “4. That if the company uses a chain that'will break, if that liability to break could have been avoided by the exercise of ordinary and reasonable diligence, in the nse of any known means in the manufacture of the material, tests, etc., the company was bound to avoid it;
    “ 5. That-.f, after all these known means were exhausted, to procure a perfect and safe chain, yet there be a latent defect, that ordinary and reasonable diligence, by the use of such known means, could not have guarded against, the company would not be liable for the breaking of the chain through such latent defect; but it is not sufficient, that the chain does not present the defect to the eye, but all known means, as elsewhere shown, must be resorted to to procure as perfect a chain as can he made.
    “ 6. That it is the duty of the railroad company to provide, not only the best known material, but the best known combination in the machinery. Therefore the company must provide the best possible machinery known, to work the brakes with safety, and to work and strain the chain with safety; and if, in this they failed, whereby the chain parted, the company is liable, although the chain itself may have been of the most perfect kind.
    “ 7. A subordinate servant is not bound by the negligence of servants who are his superiors, and is not bound to look to them alone for his damages in case of injury from such cause; but he has a right to look beyond them to their common principal. It follows that the brakeman is not bound to look alone to the foreman or others in the shop, but may look beyond them to the company for any negligence of such foreman or others in the shop.
    “ 8. The men in the car shop are no more engaged in a common business with those who run the cars upon the road, than if the car shop did not belong to the railroad company; but to another person of whom they purchased the cars. It is another branch of business not necessarily carried on by the railroad company itself. This applies in some measure to the inspector of cars. He is, in some manner, engaged in the common working of the road, with the brakeman; and, although the brakeman is, in one sense, not under the immediate control of the inspector, yet, he is so, in another sense The brakeman is employed on the road, and is bound to manage the brakes of the car he is on. This is. his contract. The inspector gives him, or passes on to the road, a car, as being safe to run; and it is his duty to work on it, unless he knows it to be defective, and so the inspector may be said to be the superior to the brakeman very much as the superintendent is. He gives him a car that he must work on, and, therefore, for any negligence on the part of the inspector, the defendant is liable.
    “ And thereupon the defendants’ counsel asked the court to instruct the jury:
    
      “ 1. That a brakeman who enters the employ of a railroad company, in consideration of the compensation to be paid him, takes upon himself the ordinary risks of the employment, and the railroad company is not liable to him for injuries through such risk incurred.
    
      “ Which instruction the court refused to give, but charged— that such an employee did not take upon himself those risks that an employer is bound to provide against, and herein, that Webb did not take upon himself the risk as to imperfections in the chain, or machinery which worked the chain, which might have been avoided by human foresight by using known means; nor the risk of the workmen in the shops doing, or .neglecting, their duties in putting in this chain and the machinery that worked it.-
    “ 2. That among the ordinary risks to which brakemen upon a railroad train are subjected, are the liabilities to negligence on the part of the machinists, inspectors and repairers, who have charge of the repairs of cars, and the brake, apparatus; and that for injury suffered through the negligence of said employees of the company, by a brakeman in their employ, the company is not responsible.
    
      “ Which instruction the court refused to. give.
    “ 3. That when a brakeman enters the employ of a railroad company in that capacity,- he does so, upon the presumption that accidents will happen, and when he is furnished with machinery of which he can judge as well as any, he assumes all the risks incident to the use of such machinery.
    
      “Which instruction the court refused to give, but did charge, that such brakeman, so furnished with said machinery, assumes all the ordinary risks, to the use of such machinery, but not those arising out of the negligence of the workmen in the car shops, as before explained.
    “ 4. That in proportion to the greater liability of the brakeman to have accident befall the machinery worked by him, the frequency of such accidents and the difficulty of providing against the same, so does he assume and take upon himself in like proportion, the risks incident thereto, and become responsible for a higher degree of care and diligence to prevent injury from said accidents, either to himself or others.
    “Which instruction the court refused, as asked, but did instruct the jury, that in such case, the said brakeman assumed and took upon himself in like proportion only, the usual risks incident thereto, and became in like manner responsible for a higher degree of care and diligence to prevent injury by accident to himself or others.
    “ 5. That if the company used reasonable care and diligence in the selection of workmen to make repairs and to be .employed in the regular service of the company for repairs, and if, nevertheless, one, or more of the workmen, so selected and employed, were guilty of negligence, whereby there was a defect in the chain connected with a brake, and a consequent injury to plaintiff’s intestate, the plaintiff can not recover, without proof of other and distinct negligence on the part of defendants.
    “ Which instruction the coui’t refused to give, but did charge — that if the jury find, that the railroad company employed inexperienced and incompetent men, either in the shop or as inspector of cars, this would be negligence on the part of the company, for which they would be liable; and so, if' they employ men in those capacities who are careless and negligent of their duties, it is equally a neglect and fault of the company who does act through its agents,for the foreman in the shop, and the inspector is rather an agent than a servant, and as such, whatever occurs in the line of their duty, on their parts, is a neglect of the company, and the company is liable for it.
    “ 6. That if the only negligence was that of an inspector of cars, selected with reasonable care and diligence by the company, the company is not liable.
    “ Which instruction the court refused to give, but charged as before said; and further, that in both the inquiry as to the diligence in procuring and using proper machinery, and in inspecting and testing it, the jury should take into consideration the nature of the business engaged in and the great liability to accidents — the importance to human life, both of passengers and employees, of due care and diligence in all these things. That what would be due and reasonable diligence in a buggy, would not be in a railroad car.
    “7. That if %, corporation should be held responsible that the cars when first used were safe and sufficient; yet, keeping the road and its cars in proper repair afterward, is the work of its servants' as much as any other part of the business of the corporation.
    “ Which instruction the court refused to give, but chai'ged that the obligation of the railroad to keep its cars in good condition, was continual, and the same with respect to its employees as toward passengers — to all alike; and for damage, by reason of such deficiency or failure to maintain their cars and machinery in good condition,. they were responsible, although the care of repairs, was, of necessity, intrusted to their employees or agents.
    “ 8. That, where, before the departure of a train, an inspector of cars, with competent assistants, examines the brake and its apparatus, trying the same in the manner usually done by said inspector; and this manner of inspection is the established mode adopted, by which the defendants prove the sufficiency of said brakes on the departure of their trains; the defendant has exercised that degree of care and diligence which is required of it; so that no liability will accrue in favor of a brakeman who is injured by accident to said machinery while he is afterward working the same.
    “ Which instruction the court declined to give, otherwise than embodied in previous instructions, and because said instruction was matter of evidence, to be considered by the jury, in determining whether due diligence was used by the defendants.
    “ 9. That, that ordinary care and diligence required of a railroad company, with respect to the brake apparatus of its cars, and in view of accidents to its brakemen who work on the same, do not require that said company shall assume any responsibility for the manufacture of the iron and the chains which go into said machinery, nor that they shall be submitted to extraordinary tests, but that the measure of such care and diligence is fully met when they use chains which, in the judgment of competent mechanics employed by the company to fit and inspect the same, are deemed sufficient for the uses to which said chains are subjected.
    “ Which instruction the court declined to give, for the reason specified in the last instruction.
    “ 10. That in the management of their road by the railroad company, in view of their relations toward the employees thereof, the ordinary and reasonable care and diligence required of the companies is, that care and oversight, which -is exercised by men of common judgment in the every-day affairs of life.
    “ Which instruction the court refused to give in the form asked for, but as embodied in instructions elsewhere given.
    “ 11. That a railroad company is not responsible to its employees for accidents resulting in bodily injury, where such ordinary and reasonable care and diligence has been exercised, but has failed to prevent such accident; neither for accidents resulting from a latent defect in machinery, or an unexpected casualty, where such defect could not be observed, or said casualty prevented by such ordinary care and diligence.
    “Which instruction the court declined to give as asked; but gave it with the qualification that ‘ the ordinary and reasonable care and diligence, and the terms latent defect,’ should be understood in the sense laid down, and modified by the court, in its other instructions upon these several points.
    
      “12. That where a railroad company employs for their brake apparatus, chains which, upon external view, appear sound, and which, when fitted, are satisfactorily proven by the application of the same kind of force to which, in their proper use, they will be subjected and regularly inspected by the inspector; and thereupon they are turned out of the shop and put to service, the company has used such diligence, that it is discharged from liability to a brakeman in its employ, who is injured by the breaking of the said chain while operated by him.
    “ Which instruction the court declined to give, on the ground, that the matter of instruction asked for, was within the control of the jury in determining the question of diligence.
    “ 13. That the rule of law which, with reference to injuries to passengers carried by railroad companies, holds said companies liable for such injuries, except when the defect could not have been avoided or discovered by a careful man, after a careful examination, and the exercise of a sound judgment, or where everything has been done, that human prudence could suggest, does not obtain or govern in a case when a brakeman of the company is injured, in discharge of his duty, by accident to machinery worked by him.
    “ Which instruction the court declined to give, but did instruct the jury that, in those respects, there was no difference in the liability of the railroad company, whether the person so injured was its employee, or a passenger.
    “ 14. That in an action by an employee of a railroad company for injury incurred in its service, it is not sufficient that he show that said injury was, in fact, incurred while upon defendants’ cars, and by accident to them, but the burden of proof is devolved upon the plaintiff to show, that said injury could not have been avoided by reasonable diligence on his part; and the accident happened through -the negligence of a fellow-servant, to whom he was directly accountable, and who exercised over him a rightful and constraining control.
    “Which instruction the court declined to give as asked for, but did instruct the jury that in an action by an employee ■of a railroad company for injury incurred in its service, it is sufficient for him to show that the injury was, in fact, incurred in its service, while in the line of his duty and engaged therein, -and by the breaking of some part of the machinery; and. the burden of proof is thrown upon defendants to show they are not in fault, or, that the plaintiff is in fault.”
    To these several refusals of the court to charge as requested by defendants below, and to charges as given, they ■excepted.
    The verdict was for the plaintiff for five thousand dollars.
    Thereupon the defendants moved the court for a new trial, but upon what grounds the record does not show. The court overruled this motion and entered judgment on the verdict, and the defendants excepted, and filed a petition in error in this court to. reverse said judgment, claiming, in substance, that the court below erred :
    1. In the instructions given to the jury.
    2. In refusing to instruct the jury as requested by the defendants.
    8. In overruling the motion for a new trial.
    
      J. JR. Swan, JR. B. Warden and JHJ. B. Carrington, for plaintiffs in error.
    
      JUT. JH. Swayne and JH. 0. JUSToble, for defendants in error.
   Suture, O.J.

The grounds for the motion for a new trial not appearing, and all the evidence given.upon the trial not being set forth in the. bill of exceptions, we can not here regard the exception to the overruling the motion for a new trial. We are, therefore, confined to the first two exceptions of plaintiffs in error.

The question, then, for our consideration is, did the court below err in either'charging, or refusing to charge, the jury ? Was the charge given to the jury by the court legal and proper, or otherwise; and were the instructions, or any of them, requested on the part of the defendants below, and refused by the court, legal and proper?

In the case of Gatrick v. Wason, 4 Ohio St. Rep. 566, this court held it to be a general rule, that an employer who provides the machinery, and oversees, and controls its operation, must see that it is suitable, and that if an injury to the workmen happen by reason of the defect, unknown to the latter, and which the employer, by the use of ordinary care, could have cured, such employer is liable for the injury. And in the case of the Cleveland, Columbus & Cincinnati Railroad Company v. Keary, 3 Ohio St. Rep. 202, it is said in such a case “ the skill and care must be reasonable, and it is not reasonable when it does not furnish at least ordinary security against injury to others. If he (the employer) is found wanting in this, and injury ensues, he has failed to perform his duty to his fellow man, and the right to receive, and the duty to make reparation, immediately arise.”

The case of M. R. & L. E. R. R. Co. v. Barber, 5 Ohio St. Rep. 541, is, perhaps, still more in point to illustrate the questions arising in this case. That was an action brought against the company by the conductor to recover for injuries he received on the train, alleged to have been occasioned by the negligence of the company in having suffered certain defects in the machinery or fixtures of the train. And this court held that the employer — the company — in such a ease, was not to be held as a guarantor of the sufficiency and safety of the cars and machinery of the train; but as responsible only where the injury is without fault on the part of the employee, and the result of the neglect of that ordinary and reasonable care and diligence, in furnishing sufficient and safe cars, and machinery for the train. The court, also, in that case held, that this rule of reasonable care and diligence on the part of the company, was complied with by furnishing such employee with such safe and sufficient cars and machinery for the time as are most common and usual in' the business of railroad companies. And in that case, where the injury resulted, as in this, from the giving way of a defective brake, this court held that if the defects in the brake were, latent and not discernable by ordinary care,, and were unknown, the injury thereby occasioned the employee must be regarded as resulting from a casualty incident to the-business, and thát no liability thereby attached to the company.

And the doctrine thus heretofore expressed by this court, in the cases referred to, seems to be in accordance with the holdings of the courts in England, as well as those of other states in this country.

The case of Priestly v. Fowler, 3 Mees. & Welsh. 1, decided in the Exchequer chamber in 1837, appears to be the leading English case upon this subject. That was an action brought by the servant against his master or employer to recover for injuries sustained by reason of the breaking down of a van or wagon unfit for use, which was charged to have been carelessly and negligently supplied by the master, and upon which he, the servant, had been directed to proceed to carry the goods of his master. The allegations upon which a recovery was sought, were that it was the duty of the defendant to use due and proper care that said van should be in a proper state of repair, that it should not be overloaded, and that the plain.tiff should be safely and securely carried thereby, and that the defendant neglected to use proper care, etc., and in consequence of the neglect of duty by the defendant that the van broke down, and plaintiff was thrown with violence, and his thigh fractured, etc. Plea not guilty. Upon a motion in arrest of judgment, a rule was obtained to show cause why the judgment should not be arrested upon a verdict at the assizes', in favor of the plaintiff for £100. And on hearing, in the court of Exchequer chamber, Lord Abinger, C.B., in delivering the opinion of the court that the judgment ought to be arrested, among other things said: “ But in truth the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. He is no doubt bound to provide for the safety of his servant, in the course of this employment, to the best of his judgment, information and belief,” etc.

The same views, have been again and again expressed in subsequent decisions. Thus, in the case of Patterson v. Wallace, 1 McQueen, 748, it is said by Lord Cranworth, C., that “ when a master employs a servant in a dangerous character, he is bound to take all reasonable precaution for the safety of that workman. ******* It ig the master’s duty to be careful that his servant is not induced to work under a notion that tackle or machinery is staunch or secure, when in fact the master knows, or ought to know, that it is not so ; and if from any negligence, in this respect, damage arise, the master is responsible.” And this ruling seems to have been followed in the case of Brydon v. Stewart, 2 McQueen, 30.

In the case of Roberts v. Smith, 2 Hurlstone & Norman Exch. Rep. 213, which was an action brought by the employee against his employer to recover for injuries occasioned by the fall of a defective scaffold, upon which he ivas placed by his employer, Cockburn, C.J., remarked, that “ the question is not whether the master believed the put logs sufficiently strong, but whether he was justified in believing them to be so.” And speaking upon the same point, Wightman, J., said:. “The only duty is to take reasonable care in providing proper materials and servants.” And again, in the case of Ormand v. Holland et al., 96 Eng. Com. Law Rep. 102, in queen’s bench, it was expressly held, that “ a master is responsible to his servant for an injury received in the course of his service, if it be shown to have been occasioned by the personal negligence of the masterand that such negligence may be charged upon the master by showing either his personal interference to be the cause of the accident, or that he negligently retained incompetent servants, whose incompetency was the cause of the accident, but that in the absence of a special contract, the master is not liable for an accident not proved to have been occasioned by his personal negligence. The action was brought t.o recover from his employer for injuries received by the plaintiff in a fall from a defective ladder. On the trial before Lord Campbell, C.J., at the Middlesex ’ sittings, after Michaelmas term, it appeared that the defendants are builders on a large scale, engaged in many works, among others that of erecting a church, and that the plaintiff was working for them as a bricklayer there. The plaintiff was going up a ladder supplied by defendants, when one of the rounds broke; he fell and was injured. There was some evidence that the ladder was defective, and that the workmen had previously complained among themselves, but no evidence that this was brought to the knowledge,of the defendants, or even of their head servants. On the part of the defendants, evidence was given that they were employed by the general foreman, who also appointed the foreman to superintend each particular work, including the foreman at the church. All implements used by the defendants at any of their works were brought from a yard, in which the implements were kept. The gate-keeper at the yard was appointed by the general foreman of the defendants; and it was the duty of the gate-keeper to examine all plant before it went out' of the yard, and to see that it was fit for use. Both the foremen, at the church and the gate-keeper gave evidence that in their opinion the ladder was sound, and that the breaking of the round must have been owing to some unexplained accident.” • ■

Under this state of facts, Lord Campbell, C.J., ruled that there was no evidence to go to the jury, and directed a verdict for the defendants, subject to leave to move to enter a verdict for £5.

A rule was obtained in Hilary term; • and on hearing in support of the rule, Erie, J., said: “No doubt the master is responsible if he^is shown to have been personally negligent; but the evidence seems to be that the defendants, personally, were free from all blame.” It was added by Lord Campbell, C.L.: “We all agree that the action is not maintainable. There was no evidence of personal negligence : the builders used due and reasonable care to have competent servants; and I think they used more than ordinary care, and took extraordinary care that the plant should be sufficient, etc.” Wightman, J.: “ The question is, whether the misfortune which befell the plaintiff arose for want of proper care in the defendants, either in choosing their servants or examining the plant.” Erie, J.: “ On these facts the defendants have shown that they took due care. The question of law, therefore, is, whether the master warrants the soundness of the materials. And he does not.” Crompton, J.: “I think that the rule of law laid down by~ Mr. Hill, is accurate, namely, that the master is not liable unless there be personal negligence on his part, which negligence may be either in personally interfering in the work or in selecting the servants who do interfere. * * * In the present case there seems to have been no evidence of any negligence : it is enough to say, that there certainly was no evidence of personal negligence of any kind.”

The American cases will be found, very generally, to express the same doctrine.

In the case of Hallower v. Henley et al. 6 Calf. Rep. 209, the servant had brought his action to recover damages for injuries sustained by him while in the employment of the defendants, who were contractors for the erection of buildings in Sacramento. The plaintiff, in his declaration, averred that the defendants so carelessly and negligently erected the scaffolding, used for the laborers in erecting the building, that it gave way with the plaintiff, whereby he sustained the injuries for which he asked damages. The court express the rule of law to be such, that the workman is liable for all accidents occurring in the course of his employment which are not induced by the carelessness or improper conduct of the'employer. In other words (say the court), the master is bound to use reasonable care and diligence to prevent accident and injury, etc.

In the case of the Indianapolis & Cincinnati Railroad Co. v. Love, 10 Ind. Rep. 554, the court held that there is no implied warranty generally, of the completeness or fitness of the road or rolling-stock, as between the company and their employees. But there are many exception's, say the court. Eor instance, if a defect existed in the road, which was known to the company, rendering the road unsafe, and they should suffer their employee, in ignorance of‘the defect, to attempt to pass, and he should thereby receive injury, etc. See also, the cases, Farwell v. B. & W. R. R. Co., 4 Metc. 49; Carle v. B. & P. Canal & R. R. Co., 48 Maine Rep. 269; Smith v. The N. Y. & H. R. R. R. Co., 19 N. Y. Rep. 127; and Wright v. N. Y Cent. R. R. Co., 28 Barb. 80; Frazier v. Pa. R. R. Co., 38 Pa. St. Rep. 104; Hayden v. The Smithville Manufacturing Co., 29 Conn. Rep. 548.

From all which authorities, English and American, it is apparent that the rule, heretofore expressed in this state in the cases referred to, is the same generally recognized in other courts. And, in view of the authorities thus referred to, as well as from a regard to the true relation of the parties, the dictates of justice and good sense, as well as considerations. of public policy, seem to require that the rule adhered to with such uniformity by other courts, should not be departed from by this.

It is true, this rule was held, in England, in cases differing from the .present in one particular. The van, the scaffold, and ladder, were each designed merely to accommodate and aid the servants of the employer, in the performance of their work, as convenient or necessary facilities for its completion. But, it is insisted, that the reason of the rule does not include such a case as is presented by the record before us.

In the cases referred to in England, it must be conceded that the rule was properly expressed, and may well be sustained in similar cases, from the fact that the rule arose out of the implied understanding between, the employer and employee, that they should each be reasonably regardful of the interests of the other. As there is an implied agreement, on the part of the servant, that he will faithfully serve and be regardful of the interest of his employer during the term of his service, a like implied agreement arises, on the part of the master, that he will be reasonably provident and regardful for the safety and well-being of the servant. While, therefore, it is the duty of each, the employer and the employee, to be provident and regardful of the interest of the other, and careful to respectively discharge his duty to the extent reasonably implied by the relation of employer and employee, it must be admitted, that there is no warranty implied, that the faithfulness of the servant shall always secure the best interests of the employer; nor that the implied reasonable regard of the employer for the safety and well-being of the employee, shall always secure his safety and well-being.

Under the application of this rule of duty, so implied by, and arising out of, the relation of the parties, in the English cases referred to, it must be admitted that the master could not, within such rule, be held to warrant the safety of the servant upon the van, the scaffold, or the ladder; but only that he would use all reasonable care to secure the safety of the servant in each of those positions in which so placed by his direction. And it must also be admitted that such reasonable care, on the part of the employer, is a no higher degree of care, under the existing circumstances of each case, than what the common sense of mankind should think justly due from the employer, and reasonably to be expected on the part of the employee. And. as employers do not take such extraordinary care to provide for their own use scaffolds, vans, ladders, etc., as facilities for doing their work, so perfect as to always secure safety against injuries resulting from their defects, it would be unreasonable to expect a higher degree of care from the master, for the safety of his servant, than for the safety of himself.

But it is insisted, for reasons peculiar to the case itself, that in the case at bar there was the same extraordinary care due the employee, the brakeman, in regard to the perfection of the machinery on the train, that was due from the company to the passengers on the train.

The company, it is admitted, are, as common carriers, bound to furnish the most perfect machinery and cars for the safety of the passengers; and from this fact the conclusion is sought to be gained by argument that quite a different rule should be applicable to the employee in this case from that where the machinery, scaffold or ladder was only for the purpose of facilitating the labors of the employee. The brakeman, it is said, engaged to the company as an employee in the particular business of brakeman on a passenger train. And the contract being in relation to service in that particular place, and each party being presumed in law to know the law, it must be supposed that both the parties knew that it was the legal duty of the company, as common carrier, to furnish as perfect machinery and brakes upon the passenger cars as practicable; or, in other words, to use the highest degree of care in that regard to insure the safety of the passengers, of which the company were in law to be regarded to some extent warrantors. And, therefore, when the employee entered the service as brakeman, to work one of the brakes on such passenger cars, it was reasonably to be implied that the company would furnish such brake to be by him worked as the law made it the duty of the company to furnish upon a passenger car for the safety of the passengers. It is not easy to perceive at first view the fallacy of this argument; and if admitted to be strictly logical, the conclusion would seem inevitably to follow that the employee was entitled, in his capacity of brakeman, to as perfect a brake as a passenger, to whom the general rule required of the company extraordinary care, instead of merely that ordinary care which was due to an employee. ,

But this argument, and the conclusion to which it tends, must necessarily be qualified by the duty of the employee himself, to bring to the discharge of his office as brakeman that high degree of vigilance, prudence, care and promptitude, correspondent to the undertaking of the company as common carrier, which he, as one of the operatives, had undertaken with the others to discharge.

There is still another consideration which must necessarily qualify the right of such employee to claim as due from the company a perfect brake. It appears from the record that the service of the intestate was rendered in common with many other servants, in the business of operating the trains upon the road; and it also appears that it was the duty of certain of the servants so engaged in the common service to inspect the chains of the brakes, and to see to the condition of the-machinery, etc., and take care that the train should in all respects be in a road-worthy condition. If, then, the defect of the chain was owing to the neglect of the co-servant of the deceased, whose duty it was to inspect the chain at the time; for such neglect, his employe!’, the railroad company, could not be held chargeable. Such was the holding of this court in the case of Manville v. C. & T. R. R. Co., 11 Ohio St. Rep. 417. See also Russell v. The Hudson River R. R. Co., 37 N. Y. Rep. 184, and the cases there referred to, to the same effect.

It is unnecessary here to determine, by strict reference to attempted classification, what degree of negligence, whether slight, ordinary, or gross, must be shown on the part of defendants below, in order to constitute in this case a legal liability against them. However ingenious the argument, the conclusion can not be logically arrived at that'the employee upon a railroad passenger train, engaged in operating the train, is entitled to the same care for his safety from his employer, that is due to a passenger upon the train. A person who seeks and engages in any employment, thereby assumes upon himself the ordinary risk, hazard, and danger incident to the place and the duties which, for the consideration agreed upon, he has so agreed to fill and discharge. And this is equally true of employees upon railroad trains, as well as-else-where, and in all other kinds of business, and positions. Whether the employee seek employment in a machine shop, or on hoard a steamboat, upon a railroad train, or to pilot rafts over dangerous rapids, to labor in a powder mill, or to serve upon a whale ship, or upon a voyage of discovery in the Arctic regions; in each and all of the several employments and positions chosen, the employee, by entering the service voluntarily, takes upon himself the hazard and dangers properly incident to the service in which he (engages; and the employer is in no sense, from the relation they so sustain to each other, a warrantor of the safety of the employee. There is neither authority nor reason for holding the employer responsible for the safety of his servant or employee, in the-same sense that a common carrier is for that of the passengers, whose safety, so far as practicable, the common carrier is, by law and public- policy, regarded as having guarantied. Nor is it by any means true, that in such a case of accident and injury to the employee, the law presumes negligence on the part of the employer. Indeed, in an action by a passen•ger to recover of a railroad company for injuries sustained upon the train, the burden of proof would be upon the plaintiff to show that the injury so received by him was the result of carelessness on the part of the common carrier, if the charge of carelessness in the petition, as in this case, is denied by the answer. The general rule that a party can only recover according to his allegations and proof, necessarily imposes upon him the burden of proof of every material allegation denied by the adversary party. Carelessness on the part of -the common carrier, being as material a fact, as the injury received by the passenger, to authorize a recovery, when both are denied, it is as incumbent upon the plaintiff alleging both, to prove the one as the other. In proving the injury, the plaintiff, it is true, may, and often does, prove such circumstances, under which the injury was received, as ■raise a presumption of carelessness or negligence; and in such a case the burden of disproving the presumption, by explaining the circumstances, so as. to render their existence consistent with the absence of negligence,'would devolve upon the defendant. Holbrook v. Utica & Schenectady R. R. Co., 2 Kernan, 242; Beatty v. Gilmore, 16 Pa. St. Rep. 467.

Indeed, negligence is a term depending so entirely upon the facts and circumstances of each particular case, that very little practical advantage is derived from the common classification, slight, ordinary, and gross. The same degree of care that would have been highly creditable to common carriers, in seeing to a common stage coach being in suitable repair, and road-worthiness, for the safety of the passengers, and that of their employee, the driver, before the introduction of railroad facilities, might doubtless be regarded as most culpable negligence of duty, on the part of a railroad company, in regard to the condition of their passenger trains; not only toward passengers, but even toward their employees who operate the train. And so, too, it may safely be affirmed, a reasonable, care for the safety of the employee, which requires of the employer always an attention, in a measure, commensurate to his exposure to danger, for the reasonable protection and safety of the employee, would evidently require of the employer greater vigilance and care in regard to the road-worthiness of an express train, or even a common passenger train, than of a freight train. Indeed, the care that the law requires for the safety of the employee, is that care which is regarded by the good common sense of mankind, as reasonably due under all the circumstances of the case.

It is hardly necessary, or practicable, to state the degree of care due from the company in this case to the brakeman. It can only be correctly expressed by saying, that it was incumbent upon the company to use all that care and precaution for the safety of the brakeman, that might reasonably be expected of a railroad, company on the part of an intelligent brakeman acquainted with the care and precaution used by other well-conducted railroad companies in like cases.

The charge of the court below to the jury, and the refusal of certain instructions, on the part of the court, to the jury, render the charge of the court, in several particulars, in conflict with those rules of law herein ex-pressed, as applicable to the ease.

The judgment of the superior court is, for this reason, reversed, and the case remanded for further proceedings,

Peck, Gholson, Brinkerhopp and Scott, J J., concurred.  