
    Railway Co. v. Leech.
    A section boss on a railroad and his crew took a hand-car to go from Keed’s mill to a switch about one-half mile east, where they would go from the main track upon a second track on their way to work. A passenger train which should have passed that point one hour and a half before was behind time. It overtook, and running into the handcar, killed one of the section-men. The foreman did not know and had no reason to believe that the train had not passed and did not send to or go to the telegraph office, which was one mile distant, to ascertain about the passenger train. The deceased did not know of the whereabouts of the belated train, although he had the same opportunity of knowing as the foreman. There was no carelessness in the running of the train. Held: That the railroad company could not be required to respond in damages to the representatives of the deceased, as he voluntarily and without protest mounted and rode upon the hand-ear.
    Ebkob to the District Court of Jefferson County.
    This action was brought in the court of common pleas of Jefferson county against the railway company to recover damages on account of the death of George Davis. He was killed on the morning of May 1, 1880, while he was riding upon a hand-car on the company’s road between Reed’s Mill and Smithfield Station, by the car being run into by one of the company’s passenger trains, No. 7. Davis had been employed for seven or eight days prior to the accident as a section hand on the road, and one Samuel Loftus was the section foreman. The section upon which Loftus’ crew worked was about five miles in length and extended eastward from Reed’s Mill. There was no telegraph office at Reed’s Mill, but there was one at Smithfield, one mile east. At seven o’clock on the morning of the 1st of May, 1880, Loftus and his crew, including Davis, started east from Reed’s Mill on the hand-car for their work which was about one mile and a half distant. About one-half mile east of the starting point there was a switch at which a second track commenced. It was the purpose of the party to run the half mile and then go upon the second track. To do this would require about three minutes. According to the time-table of the railroad company a passenger train from the west, No. 5, was due at Reed’s Mill at seven o’clock and thirteen minutes on that morning, and train No. 7, which caused the accident, should have-passed that point at five o’clock and thirty minutes. The fact that No. 7 was behind time and had not yet passed was not known to Loftus nor to any one of-his crew. The hand-car was always kept at night at Reed’s Mill. Loftus lived near this place, and about 800 yards from the railroad track. Davis, the 'deceased person, lived about one mile and a half west of Reed’s Mill and very near to the railroad track. On the morning of the accident he walked along and near the railroad track to where the hand-car was kept. Loftus, the section foreman, did not go or send to the telegraph office before starting the hand-car to ascertain whether No. 7 had passed. In riding upon the car Loftus was in front, with his face to the east. The other men stood behind him working the machinery to propel the car. No one was directed by Loftus to keep a look-out for approaching trains from the west. No one in fact was on the watch for’such trains. No. 7 was not discovered by the men on the ear until it was within a short distance of them. All jumped and escaped except Davis, who was caught and killed. It is not claimed that there was any carelessness upon the part of those running the train. The road had frequent curves, and at the point where the accident occurred, looking westward an approaching train could not be seen at a greater distance than three hundred yards. The hand-car had not reached the switch when it was overtaken by No. 7. Davis had the same knowledge as to the time trains passed upon the road that Loftus had. Both supposed that No. 7 had passed, and in such case knew that they would have time to reach the switch before the arrival of No. 5. He knew that there was no telegraph office at Reed’s Mill. He entered upon the hand-car voluntarily, without objection and without inquiry as to whether a messenger had been sent to the telegraph office to ascer' tain in regard to the condition of the track or the trains.
    The judgment in the court of common pleas was against the railway company, and this judgment wras affirmed by the district court.
    
      J. Dunbar, for plaintiff in error.
    
      Wm. R. Says, for defendant in error.
    
      Respondent Superior — Railroad Co. v. Keary, 3 O. S. R., 201; Railroad Co. v. Divinney, 17 Id., 197; Railroad Co. v. Lavalley, 36 Id., 221; Railroad Co. v. Stevens, 20 Id., 415. Two classes of dangers surround employees, seen and unseen. Liability in such cases. 2 Thompson on Negligence, 980; Wharton on Negligence, §§ 206 to 212; Wood on Master and Servant, §§ 349, 354, 359, 376. Negligent ignorance equivalent to knowledge. Wood on Master and Servant, §§ 347, 348, 386 ; 2 Thompson on Negligence, 994-5. Master’s duty to servant. Wood on Master and Servant, §§ 329, 334, 358; 2 Thompson on Negligence, 982 to 996; 31 O. S. R., 293; Dick v. Railway Co., 38 Id., 389, and cases there cited. Loftus failed in his duty. He took no precaution whatever for the safety of Davis.
   Nash, J.

The evidence shows that the deceased had lived near Reed’s Mill for several years, and had the same opportunity to know, in regard to the situation on the morning of the accident as the foreman, Loftus, and the other members of his crew. It does not appear that he rode upon the hand-ear by any command or coercion from his superior. The car was provided for the convenience of the men in getting to their work. The men mounted the car without objection, the deceased as willingly as the others. So far as anything appears, all were ready to take the risk from delayed trains without the delay of sending to the telegraph office, one mile away, which would have protected them. There was no negligence in the running of the train after the discovery of the hand-car, and if a lookout had been kept by the men on the hand-car, it does not appear that the accident would have been prevented on account of the frequent and sharp curves in the road. As the deceased voluntarily and without objection assumed the risks his representatives cannot recover.

Judgment reversed.  