After the plaintiff closed his evidence, which substantially established the foregoing facts, the defendant asked the court to declare that, on the pleadings and evidence, the plaintiff could not recover, which the court refused; and for plaintiff instructed the jury as follows:

1. If the jury are satisfied from the evidence in this case that the plaintiff was, at the time hereinafter mentioned, switchman on the railroad of defendant, and in its employ as such; that he was in the discharge of his duty as such switchman, and was on a caboose cutting or separating same from another caboose; that it became necessary for him to get off the caboose; that in doing so he exercised care, and without negligence on his part his foot caught on a loose railroad rail, which caused him to fall, and he was thereby injured; that said rail was on the path where the plaintiff in the discharge of his duty would get off the caboose, and that increased the risk of injury to plaintiff; and that said rail was put on the track by the section foreman, or those employed under him, or was allowed to remain there, and that the defendant knew of its existence or might, by the exercise of reasonable care and diligence, have known thereof; and they further find that the plaintiff received injuries in consequence of such loose rail lying and remaining on said path, put there as aforesaid, or defendant knew or might have known of its existence; and the plaintiff, at the time he received such injury, was exercising ordinary care and prudence, and did not know that the rail was on said path, then the defendant is liable for such injury.

3. In this case the section foreman's duty was to keep the track in repair and see that the track was not obstructed, and in this he represented the company.

The principal ground relied upon for a reversal of the judgment which plaintiff recovered, is, that a switchman and section foreman are fellow-servants. Adjudications of the courts of other states of the Union sustaining the appellant's position are cited by counsel, and, whatever our opinion might be, if it were a question of the first impression in this court, the contrary was held in Lewis v. R. R. Co., 59 Mo. 495, and the doctrine of that case has ever since been adhered to by this court, and we are not inclined to depart from what must, therefore, be now accepted, as the rule settled on that subject in this State. The declaration in the nature of a demurrer to the evidence was, therefore, properly overruled.

The instruction number one, given by the court, is a correct declaration of law; and we presume that, if appellant's counsel had conceded that plaintiff and the section foreman were not fellow-servants, and the petition had alleged that the defendant had knowledge, or by ordinary attention to its duties would have known, that the loose rail lay upon the road-bed near the track, they would not have complained of the instruction. The proposition that the

petition is defective because it is not therein alleged that defendant had knowledge that the iron rail was lying on or so near the track as to be dangerous, is untenable. It is alleged that defendant negligently and carelessly permitted it to remain there, and this was not true, if defendant did not know, or by the due and proper discharge of its duty to keep the track clear of obstructions, would not have ascertained that the rail was there. In the cases of Serrot v. Omaha, 1 Dill. Cir. Ct. Rep. 312, and Bowie v. Kansas City, 51 Mo. 456, it was decided that petitions, substantially the same as this with respect to the omission of the allegation of knowledge on the part of defendant, were good. Nor is there anything in Price v. Ry. Co., 72 Mo. 414; S. C. 3 Am. & Eng. R. R. Cas. 365, in conflict with those cases. In that case an instruction was objectionable which permitted a recovery on a cause of action not stated in the petition. No objections were made to the petition. The allegation which it is contended should have been made in the petition in the case at bar, is substantially embraced in the averment that defendant carelessly and negligently permitted the loose rail to lie on or near the track; and proof that the defendant did not know, and, in the proper discharge of its duty, would not have learned that the rail was in that condition, would have repelled the imputation of negligence and carelessness. The instruction did not, therefore, authorize a recovery on a cause of action not stated in the petition.

Instruction number three is objected to because it declares what the duties of the section foreman were, with respect to keeping the track clear of obstructions. If there had been any conflict of evidence, or no evidence, on that subject, it would have been manifestly improper; but the only testimony on that subject was that of the section foreman himself, who testified: "That it was his duty to keep the track in repair and see that it was not obstructed," and the court was warranted under the circumstances in so declaring. The carelessness of the section foreman, and his knowledge of the obstruction in plaintiff's path, are imputable to defendant. Long v. Pacific R. R. Co., 65 Mo. 225; Porter v. H. and St. Jo. R. R. Co., 71 Mo. 77; S. C., 2 Am. & Eng. R. R. Cas. 44; Harper v. Ind. and St. L. R. R. Co., 47 Mo. 567; Lewis v. St. L. and I. M. R. R. Co., 59 Mo. 506. All concurring, the judgment is affirmed.

See note to Ballou v. N. W. Ry. Co., 5 Am. and Eng. R. R. Cas. 504; note to Slater v. Jewett, id. 525.

HENRY

v.

LAKE SHORE AND M. S. Rr. Co.

(Advance Case, Michigan. October 31, 1882.)

The fact that the plaintiff in an action for a railway injury was hurt without his own fault or negligence does not of itself entitle him to recover, as it must further appear that the defendant is legally chargeable with the injury.

A railway company whose track is broken without any fault of its own is under no obligation to its employees to repair it within any specified time, if it duly warns them so that they shall not be injured in consequence thereof. A railway company is not liable to an employee for an injury caused by the negligence of a fellow-employee; as where the fireman on a freight train was hurt in consequence of the train being ditched through the engineer's neglect to obey signals which he saw and was bound, by the company's rules, to ob

serve.

A railway company owes a duty to the public to keep its track in safe and suitable condition and run its trains with regularity and dispatch for the carriage and transportation of passengers and freight. But an employee cannot have a right of action against the company on this obligation.

ERROR to Lenawee.

B. F. Graves and C. A. Stacey, for Appellee.

Millard, Weaver & Weaver, Oscar G. Getzen-Danner, and Ashley Pond, for Appellant.

Cited Harrison, Adsm. v. Cent. R. R. Co., 31 N. J. 293; Quincy Mining Co. v. Kitts, 42 Mich. 34-40; Smith v. Potter, 2 Am. & Eng. R. R. Cas.; McAndrews v. Burns, 39 N. J. 117; Holden v. Fitchburg R. R. Co., 129 Mass. 268; 2 Am. and Eng. R. R. Cas. 94; Howland v. M. L. S. and M. Ry. Co., 54 Wis. 227-230; S. C. 5 Am. and Eng. R. R. Cas. 578; Flint and P. M. Ry. Co. v. Stark, 38 Mich. 714; M. H. and O. Ry. Co. v. Marcott, 41 Mich. 433; M. C. R. R. Co. v. Gilbert, 2 Am. and Eng. R. R. Cas. 230; Smith v. Potter, 2 Am. and Eng. R. R. Cas. 141; M. C. R. R. Co. v. Dolan, 32 Mich. 510; G. R. and I. R. R. Co. v. Judson, 34 Mich. 506; Steffin v. C. and N. W. Ry. Co., 46 Wis. 259; Goldstein v. C. M. and St. P. Ry. Co., 46 Wis. 404; Murphy v. St. L. and I. M. R. R. Co., 71 Mo. 202; S. C. 2 Am. and Eng. Cas. 83; Slater v. Jewett, 84 N. Y. 61; S. C. 5 Am. and Eng. R. R. Cas. 524; Zimmerman v. Hannibal, etc., R. R. Co., 71 Mo. 50; S. C. 2 Am. and Eng. R. R. Cas. 200; Davis v. D. and M. Ry. Co., 20 Mich. 105-128; Murphy v. St. L. and I. M. R. R. Co., 71 Mo. 202; S. C. 2 Am. and Eng. R. R. Cas. 83; Gilbert v. M. C. R. R. Co., 46 Mich. 176; M. C. R. R. Co. v. Dolan, 32 Mich. 510; Smith v. Potter, 46 Mich. 258; Ft. W. J. and S. R. R. Co. v. Gildersleeve, 33 Mich. 133; Bottsford v. M. C. R. R. Co., 33 Mich. 256; M. C.

R. R. Co. v. Smithson, 45 Mich. 212; 1 Am. and Eng. R. R. Cas. 101; Day v. H. S. and Deb. Ry. Co., 42 Mich. 523; Quincy Mining Co. v. Kitts, 42 Mich. 34; Howland v. M. L. S. & W. Ry. Co., 54 Wis. 227-230; Porter v. H. and St. J. R. R. Co., 71 Mo. 66; S. C. 2 Am. and Eng. R. R. Cas. 45–51; G. R. and I. R. R. Co. v. Huntley, 38 Mich. 537; M. C. R. R. Co. v. Coleman, 28 Mich. 440; M. C. R. R. Co. v. Smithson, 45 Mich. 212; M. C. R. R. Co. v. Dolan, 32 Mich. 511; Hard, Adsm., v. V. and C. R. R. Co., 32 Vt. 473; M. C. R. R. Co. v. Coleman, 28 Mich. 440; G. R. and I. R. R. Co. v. Judson, 34 Mich. 506; Steffin v. C. and N. W. Ry. Co., 46 Wis. 259; Goldstein v. C. M. and St. P. Ry. Co., 46 Wis. 404; Murphy v. St. L. and I. M. R. R. Co., 71 Mo. 202; S. C. 2 Am. and Eng. R. R. Cas. 83; Henry v. Staten I. Ry. Co., 81 N. Y. 373; S. C. 2 Am. and Eng. R. R. Čas. 63.

MARSTON, J.—That the plaintiff in this case was severely injured without fault or negligence on his part is not questioned. This alone will not entitle him to recover damages from the defendant for the injuries so received while in its employ, unless it further appears that the defendant is legally chargeable therefor. The charge made in the declaration is, that it was the duty of the company to provide a good and suitable railroad track for all its trains at all times to run over, and that it had allowed its track to become unfit, dangerous and out of repair, and some of the rails to be taken up and left out, thereby causing the accident. The undisputed evidence showed that on the afternoon of December 28, 1880, a section foreman of the defendant company discovered a broken rail; that he had two laborers with him at the time; that he immediately sent his men out on the line of the road to put out signals to warn approaching trains, he going in the opposite direction to intercept and warn a passenger train then expected; that this train was stopped and then safely run over the dangerous place. The foreman then sent one of his men to the westward, the direction from which the train had come, to place the necessary signals on the track to notify approaching trains of the danger. After this was done, work was commenced at once by these three men to replace the broken rail, and while they were still at work and before completing the same, a freight train, upon which the plaintiff was working as a fireman, coming from the west, ran into this open place, was ditched and the plaintiff injured.

It was not claimed upon the argument, nor could it have been upon this record, that the road and track of the defendant had not been kept and maintained in good order and repair, or that there had been any negligence in not sooner discovering this broken rail, or that there was any unnecessary delay thereafter in attempting to make the necessary repairs. Nor was it claimed that there was any patent or latent defect in the broken rail. The break was at

tributed to the excessively cold weather and could not have been anticipated or prevented. The negligence relied upon and attempted to be proven was, that a sufficient number of men was not employed upon this section to give proper notice to approaching trains in case of an accident and to make the repairs within such reasonable time as at that season of the year would be required by ordinary prudence under all the existing eircumstances and in view of the probable dangers of injury. It was claimed that at least four men should have been employed, while there were in fact but three. The negligence charged, in view of the evidence introduced, was not that the company had carelessly permitted its track to become unsafe and dangerous, but that upon a good and safe track, kept in proper repair, a good and suitable rail was broken, through no fault of the company, and although the injury was promptly discovered, and steps at once taken to warn approaching trains and replace the broken rail, yet that a force of three men was not sufficient to perform such duties within such reasonable time as the law in such a case would require.

In behalf of the company it was argued that the company owed no duty to its employees to repair this track within any specified time or at all. That as to its employees it might leave the track in an impassable condition, while its duty to the public would be very different, and that the duty it owed its employees in such a case was to give them sufficient notice of the danger so that they might not receive any injury in consequence thereof. This position would seem to be unanswerable. The company owes a duty to the public to keep its track in a safe and suitable condition, and also to run its trains with regularity and dispatch over the same, for the carriage and transportation of passengers and freight. In so far as its employees are concerned, if the track is injured and thereby becomes unsafe, the company is under no obligation to repair the same. It must, however, give them due and timely notice of the injury so that danger may be averted, and having given such notice may take whatever time it may deem proper to repair the same. If the injury is such an one as to prevent the running of trains over that part of the track, when proper notice thereof is given, the company may take such time to repair the same as it pleases, even an unreasonable time, and its employees cannot call it to account therefor.

If the company owes a duty to its employees to keep the track in a good, safe and suitable condition, upon which they could run, propel and manage its locomotives and trains of cars, as chargedand if the company must at all times have a sufficient force of men on hand to repair in case of casualties of this kind, within even a reasonable time, the question at once arises, by what standard shall these things be determined? If a rail is broken, must the force be sufficient to repair the track before the arrival thereat of the