about four days, or two trips, it had been without a trainman; and he further testifies that there ought to have been one trainman and two brakemen on the train. In the absence of either a brakeman or a trainman, the conductor had, of course, to perform, to some extent, the duties of both; and he was in the act of performing the duty of one of these subordinate hands when he received the injury complained of.

It appears, therefore, that the company was guilty of a neglect of due and reasonable care in the failure to supply the train with a sufficient number of hands for its safe and proper management. But in the charge and control of the train Barber was the directing agent, and sole representative of the company. It was his duty to notify the company of the want of sufficient hands, and to require the company to furnish them. It is not averred in the petition, nor does it appear in the proof, that the company had a knowledge that this train was running without a sufficient number of hands, or that the conductor had either given the company notice of the insufficiency of hands on the train, or required them to be supplied. So far, therefore, as the deficiency in the number of hands upon the train contributed to the injury, the maxim, Volenti non fit injuria, applies. It is an old and settled rule of the common law that no one can maintain an action for a wrong where he has consented or contributed to the act which has occasioned it.

The other ground upon which the recovery was sought below was the alleged failure and neglect of the company to furnish sufficient and safe machinery and cars; and the alleged wrongful and negligent act of the company in actually furnishing the train with defective, unsafe, and insufficient cars and machinery. It appears that there was a defect in the link which connected the third and fourth car of the train back of the engine, on account of its not having been sufficiently welded in the making, by means of which a separation in the train took place. It appears, further, that the brake on the first car of the detached portion of the train was in a bed condition for want of connection between the brake-blocks; that the brake-chain was defective, and broke when Barber was attempting to use it to stop the detached portion of the train on a down grade. The top of the brake-staff was a cross-bar, and the platform for a person to stand on to work the brake was claimed to be insufficient and unsafe. By means of these defects in the cars and machinery, the accident occurred by which the defendant in error received the injury.

The duty imposed on the company by the relation occupied by the conductor was to use reasonable and ordinary care and diligence in furnishing him with sufficient, sound, and safe cars and machinery for the train. This duty required not only that the company should use proper skill and diligence in procuring and furnishing sufficient and safe cars and machinery, but also, when notified that they had become insufficient and unsafe, or when they had been in use as long as they could with safety be used, to take them off the road until repaired and made sufficient and safe. And for any injury sustained by an agent or employee of the company from any neglect of this duty the company would be liable. But the relation occupied by the agent or employee imposes a reciprocal duty upon him. It was the duty of Barber, as the conductor of this train, to use ordinary and reasonable skill and diligence on his part, not simply in the management of the train, but also in supervising the due inspection of the cars, machinery, and apparatus, as to their sufficiency and safety, while under his charge; and on the discovery of any defect or insufficiency, to notify the company, and to take the proper precautions to guard against danger therefrom. And if he was injured by the negligence of the company in furnishing, or continuing to use, defective cars and machinery, yet if his own neglect of duty in the management of the train, or due inspection of the cars and machinery in his charge, contributed as a proximate cause of the injury, he could have no right of action against the company for damages; or if he knew of the defects and insufficiency of the cars or machinery, and without taking the necessary and proper precaution to guard against danger, continued to use them, he took upon himself the risk, and waved his right as against the company. If there was no neglect of due and ordinary care and diligence on the part of the company furnishing or continuing the use of the cars and machinery, and the injury was caused by latent defects, unknown alike to the company and to the conductor, and not discoverable by due and ordinary skill and diligence in the inspection of the cars and machinery, it would be a misadventure falling among the casualties incident to the business, and for which no one could be blamed. But if the defects which caused the injury were actually unknown either to the company or the conductor, and not discoverable by due and ordinary inspection, and yet were such as resulted fron a neglect of reasonable and ordinary care and diligence on the part of the company, either in procuring the cars or machinery to be

made, or in continuing their use on the road beyond the time when they could be safely used, the company would be liable in damages for the injury. And whether such was the case or not, was a matter of fact for submission, under proper instructions, to the jury in the court below.

The view of the law here expressed as applicable to this case, and in which we all concur, is at variance with the instructions given by the court below to the jury in various particulars.

The charge of the district court to the jury, taken in its whole context, together with the instructions asked by counsel, and refused or qualified by the court, gave an erroneous view of the law which governs this case.

The court instructed the jury as to the rule of liability applicable to the company, without the proper qualification where the fault of the conductor contributes as a proximate cause to the injury, or where the conductor, with a knowledge of omissions. and neglect on the part of the company, waives its obligations and takes the risk upon himself.

And the court instructed the jury as to the company's liability as follows: "She undertook to furnish said train and machinery in good and safe condition; she undertook to devote reasonable care, attention, and diligence to the machinery and other material that made up the train; and this either by the plaintiff or some other person. She undertook to furnish the train with such number of hands, possessing reasonable skill, as were necessary to the safe conduct of the train. She agreed, in short, that everything necessary for the conduct of the train with safety to the conductor should be done on her part. And finally, she undertook to be responsible to Barber for the negligence or carelessness of certain of her employees, through whose negligence or carelessness an injury might result to him. And in the discharge of these undertakings, she was to use reasonable and proper care, diligence, and skill." And in this connection the court charged that "that care, skill, and diligence, in order to be reasonable when a party puts in motion a most dangerous body, must be of the highest order." And the court continued in these words: "Now, inquire of the evidence whether the railroad company has performed these undertakings. If she has performed these and all other undertakings on her part, if she has been guilty of neither carelessness, negligence, or want of skill, she is not liable."

Now, the court in thus charging did not state the duty and obligations of the company with accuracy; did not distinguish

between general acts of neglect on the part of the company, and negligence contributing either as a remote or a proximate cause to the injury; but by direct implication gave the impression that if the company had neglected any of its undertakings, either those mentioned or others, or been guilty of any act of negligence or want of skill, whether the same was connected with or contributed as a proximate cause to the injury or not, the company was liable to this action. The charge in this respect was calculated, at least, to mislead the jury.

The court gave the instruction that the company "undertook to be responsible to Barber for the negligence and carelessness of certain of her employees, through whose negligence or carelessness an injury might result to him," as a rule of law applicable to this case, without further qualification or explanation. As Barber was not acting under the immediate direction or control of any superior officer or agent of the company at the time, this instruction, as applied to this case, was directly at variance with the doctrine of the case of the Cincinnati etc. R. R. Co. v. Keary, 3 Ohio St. 201.

The court also erred in instructing the jury that what constituted the various duties of a conductor of a train of cars," incident to his position, was a question of fact to be found by the jury from the evidence. Now what constitutes negligence in regard to a duty enjoined by any particular relation or employment is usually, if not invariably, a mixed question of law and of fact; but what duty the law implies as incident to any particular relation or employment is always a question of law for the determination of the court.

It is also assigned for error that the petition does not set forth sufficient legal grounds to constitute a cause of action.

It is essential that the plaintiff, in order to lay a sufficient foundation for a recovery and judgment for an injury received by him while acting as the conductor of a train of cars, should aver or show in his petition, in addition to the allegation that he had no knowledge of the insufficiency or defects which were the alleged cause of the injury, that he had exercised due care and diligence in the use, and also in the examination and inspection, of the cars and machinery belonging to the train while the same was under his charge and direction. The petition contains no such averment, and on this ground is fatally defective. Other questions are made in this case, but it is not deemed necessary to express the views of the court upon them.

Judgment of the district court reversed and cause remanded.

EVERY PERSON MUST SO USE HIS OWN PROPERTY AS NOT TO INJURE THAT OF HIS NEIGHBOR: Kerwhacker v. Cleveland etc. R. R. Co., 62 Am. Dec. 246. PERSONS TO WHOM MANAGEMENT OF RAILROAD IS INTRUSTED MUST EXERCISE the strictest vigilance: Pennsylvania R. R. Co. v. Aspell, 62 Am. Dec. 323; and company's liability for negligence should be strictly enforced on grounds of public policy: Cumberland V. R. R. Co. v. Hughes, 51 Id. 513.

RAILROAD COMPANY'S LIABILITY TO PASSENGERS: Gillenwater v. M. & I. R. R. Co., 61 Am. Dec. 101; Galena etc. R. R. Co. v. Fay, 63 Id. 323, and notes 333; Hegeman v. Western R. R. Corp., 64 Id. 517, and exhaustive note to same 521, on liability of carriers of passengers for injuries resulting from defects in their vehicles and other appliances: Pennsylvania R. R. Co. v. Aspell, 62 Id. 327; Zemp v. W. & M. R. R. Co., 64 Id. 763.

LIABILITY OF MASTER TO SERVANT FOR INJURIES RESULTING FROM NEGLIGENCE OF FELLOW-SERVANT: See Gillenwater v. M. & I. R. R. Co., 61 Am. Dec. 101, and note thereto 108, discussing the subject.

RAILROAD COMPANY'S LIABILITY FOR INJURIES TO TRESPASSERS: See note to Little Schuylkill N. R. & C. Co. v. Norton, 64 Am. Dec. 674.

FOR DOCTRINES OF NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE as applied to the liability of railroad companies, see note to Ware v. B. & L. Canal Co., 35 Am. Dec. 197; Chicago & M. R. R. Co. v. Patchin, 61 Id. 65; Murch v. Concord R. R. Corp., Id. 631, and notes 641; Kerwhacker v. Cleveland etc. R. R. Co., 62 Id. 246, and copious references in notes thereto 270; Pennsylvania R. R. Co. v. Aspell, Id. 323, and voluminous notes to same 327; Nelson v. V. & C. R. R. Co,, Id. 614; Galena & C. U. R. R. Co. v. Fay, 63 Id. 323, and notes 333; Little Schuylkill etc. Co. v. Norton, 64 Id. 672, and note 675; Zemp v. Wilmington etc. R. R. Co., Id. 763, and notes 771; Cumberland V. R. R. Co. v. Hughes, 51 Id. 513.

NEGLIGENCE IS MIXED QUESTION OF LAW AND FACT: the judge is to instruct as to what is negligence, and the jury, in most cases, ascertain whether the facts sustain the definition: Zemp v. Wilmington etc. R. R. Co., 64 Am. Dec. 763, and note 771.

THE PRINCIPAL CASE WAS CITED in Whaalan v. Mad River & L. E. R. R. Co., 8 Ohio St. 253, to the point that the servant takes upon himself all the ordinary risks of the business, including the liability to injury from the negligence of other servants employed with him, by the common principal, but having no control over the business, or the servant who receives the injury. It was summarized in Columbus etc. and Little M. R. R. Cos. v. Webb's Adm'x, 12 Id. 487, as illustrating the questions in the latter case. In Lake Shore & M. S. Railway Co. v. Knittal, 33 Id. 468, it was cited in the discussion of a railroad's dangerous way of doing business. "If it be conceded," said the court, "that the switching of cars from the main track to a side-track of the road, while the train is in motion, is a dangerous mode of doing the business, and ought to be regarded as evidence of negligence of the company or its officers; still, as all the employees entered the service of the company with full knowledge that such was the practice, or acquired such knowledge afterward, and remained in the service without the least objection thereto, and fully acquiesced therein, they must be regarded as having consented to the practice or as having waived any objection thereto, and therefore as having taken the risk upon themselves."