Anderson v. Northern Pacific Ry. Co. , 34 Mont. 181 ( 1906 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

Harry Anderson, the respondent, was a freight brakeman employed by the Northern Pacific Railway Company. In September, 1903, he was injured while in the performance of his duties, and brought this action to recover damages from the railway company and from the Helena and Livingston Smelting and Reduction Company, alleging negligence on the part of the defendant smelting company in constructing and maintaining, and on the part of the railway company in permitting the construetión and maintenance of, a certain bridge or trestle over the track of the railway company at the smelting-company’s concentrator at Corbin, in Jefferson county. The-.bridge or trestle was used by the smelting company to load cars with ore and other products for shipment. It is alleged that this bridge or trestle was- so low that an employee of the railway company could not pass under it while standing upon the platform of an ore car, and that neither the smelting company nor railway company erected or maintained telltales or other devices to warn employees of the railway company of the approach to such bridge or trestle. It is further alleged that this bridge or trestle was erected over a spur track operated by the railway company for the use of the smelting company; that on the day of the accident the defendant railway company operated a train on this spur track at the request of the defendant smelting company, and that, while the plaintiff was on one of the cars constituting the train, he came in contact with the timbers of the bridge or trestle, was knocked from the train, and severely injured.

The defendant railway company denies any negligence on its part; denies that the spur track is upon its right of way, but alleges that it is upon property owned entirely by the defendant smelting company. It admits, however, that the spur track was constructed by the joint efforts of the railway company and the smelting company. The plaintiff’s contributory negligence and assumption of risk are also pleaded. The defendant smelting company denies any negligence on its part; alleges that the spur track was constructed in part upon ground owned by the smelting company, and in part upon the right of way of the railway company, and that while it was built by the joint efforts of the two companies, the smelting company was fully repaid by the railway company, and that the railway company owns the spur entirely. The smelting company admits that it erected the bridge or trestle, but alleges that the span of the bridge or trestle, immediately over the roadbed or railway track is constructed as a drawbridge solely for the benefit of the railway company, and that the railway company has the exclusive control of such drawbridge. It also alleges that the plaintiff’s injury was caused by reason of the brake on the last of the cars of the train being out of order through the negligence of the railway company. It also pleads the defenses of contributory negligence and assumption of risk. All the material allegations of these answers are put in issue by the replies.

The plaintiff recovered judgment, and each defendant gave its separate notice of intention to move for a new trial, prepared its separate statement, and made its separate assignments of errors. How these matters were submitted to the district court does not clearly appear. The court’s order is as follows: “In this cause court this day ordered that defendants’ motion for a new trial herein is denied.”

The defendants gave a joint notice of appeal and only one undertaking on appeal. After reciting the appeal from the judgment, the notice of appeal reads: “And also from an order made and entered in said court and cause on the 21st day of August, 1905, overruling defendant’s motion for new trial in said action.”

While a motion to dismiss the pretended appeal from the order denying a new trial has not been made, it is urged that such pretended appeal cannot be considered. The order of the court would seein to indicate that the defendants joined in the motion for a new trial; while the notice of appeal in the case indicates that only one defendant made sueh motion, and, if that is true, there is not anything to indicate which defendant did so. We therefore, of our own motion, dismiss the pretended appeal from the order denying a new trial and will consider only the joint appeal from the judgment.

On such appeal counsel for the respondent urge that the appellants must join in their assignments of error, and that this court cannot consider alleged errors not common to both appellants. The authorities cited in support of this contention, however, are not directly in point. They are from states where the method of review is by writ of error and refer to cases where joint assignments of error were made. This question has not been before this court directly, but we have heretofore proceeded upon the assumption that proper practice might warrant the affirmance of a judgment as to one joint appellant and its reversal as to another. (Cook v. Gallatin Ry. Co., 28 Mont. 340, 72 Pac. 678; City of Butte v. Cook, 29 Mont. 88, 74 Pac. 67; Capital Lumber Co. v. Barth, 33 Mont. 94, 81 Pac. 994.) In the absence of any authorities directly in point to the contrary, we prefer to follow the rule heretofore adopted, or which seems to be implied by the position which this court has heretofore assumed. We, however, adopt the suggestion of counsel for respondent to this extent: That one joint appellant will not be permitted' to assume a position in this court antagonistic to his other joint appellant. It was evidently one purpose of section 1721 of the Code of Civil Procedure, in permitting any aggrieved party to appeal, to enable one defeated party to urge an antagonistic attitude as against another defeated party, as well as against the successful litigant, by a separate appeal. But it would seem entirely inconsistent with proper practice to permit one of two joint appellants to assume a position antagonistic to his joint -appellant. In so far as the position of either of these appellants is antagonistic to the other, it will not be considered.

The railway company assigns as errors the giving of instructions 4, 5, 7, 8, 9, 11 and 13 respectively. The defendant smelting company assigns as errors the giving of instructions 6, 8, 10 and 13 respectively. As the smelting company does not predicate error upon the giving of instructions 4, 5, 7, 9 or 11, it is presumed to be satisfied with them. Counsel for the smelting company do not discuss the assignments of error predicated upon the giving of any instructions. In their brief they say: “We will not enter into the discussion of the errors committed by the court in the instructions given to the jury, as this has been so ably done by counsel for the defendant railway company.” But counsel for the railway company do not discuss the giving of instructions 6 or 10, and therefore these assignments are not discussed by anyone, and under the well-established rule of this court and other appellate courts, assignments not argued will be deemed waived. We therefore eliminate from consideration tbe assignments predicated upon tbe giving of instructions 6 and 10.

The common errors assigned are (1) the refusal of the court to grant a nonsuit; (2) .the giving of instruction No. 8; and (3) the giving of instruction No. 13.

Applying the' well-recognized rule, that upon a motion for nonsuit those facts will be deemed proved which the evidence tends to prove, it appears that the plaintiff had never been over the Boulder Branch of the Northern Pacific Railway but three or four times prior to the day of this accident; that he had never been on this spur at Corbin before that day; that the smelting company had loaded four cars with concentrates, one of which cars stood immediately under the bridge or trestle, and the other three beyond' it. The superintendent of the concentrator requested the train crew, of which this plaintiff was a member, to take these loaded cars from the spur for shipment to the smelter at East Helena. The locomotive was detached from the train on the main line and backed in on the spur nearly to the car beneath the bridge, the entire train crew riding. This plaintiff-then stepped down from the locomotive, walked back under the bridge or trestle and, as was his duty, removed blocks from under the wheels of the ears, saw to it that the ears were coupled together, that the air was properly coupled and the angle cocks properly turned. He walked back to the last car, mounted upon the platform of that ear to release the ordinary hand brake. The bridge is about eight feet or eight feet two inches above the track. The cars in use were the ordinary gondola cars, the platforms of which are from three and one-half to four feet above the track. The plaintiff is a man about five feet nine inches in height. The plaintiff .testifies that he looked down in going back from the locomotive in performing the duties of his office. About the time plaintiff undertook to release the brake on the rear car, the train commenced to move, and by the time the car upon which he was standing reached the bridge, the train was moving at a rate of from eight to ten miles an hour. The brake did not respond readily to plaintiff’s efforts and, while engaged in attempting to release it and while his attention was absorbed in this duty, he was struck by the bridge and injured. There were no telltales or other devices for warning the' employees of the railway company of their approach to this bridge, and the plaintiff testifies that he was not informed of it and knew nothing about it. There was not any evidence offered by plaintiff respecting the control of the drawbridge, except that it had never been removed before this accident, and when it was removed afterward, it was done by the employees of the smelting company and was quite a difficult undertaking. It appears that this spur was used by the railway company for general commercial purposes in addition to the business of the smelting company. The plaintiff then offered testimony showing the extent of his injuries and rested his case. Each of the defendants moved for a nonsuit, upon the ground (generally speaking) that the plaintiff had failed to make out a case sufficient to go to the jury. These motions were denied, and error is predicated upon the denial.

It is earnestly urged that, if the plaintiff did not see the bridge when he passed from the locomotive- to the rear of the train, he ought to have seen it, and ought to have appreciated the fact that he must be swept from the car if he stood upon the platform while the car was being drawn under the bridge, and by the exercise of ordinary care he would have seen it and appreciated such fact, and therefore he is chargeable with such knowledge. Of course, every master has a right to expect that his servant will be alert, and will inform himself of existing conditions about the place of his employment. The master is not required to furnish the servant with eyes to see and ears to hear. It is also a rule that the servant, upon entering the service, assumes the risks and perils incident to the employment, so far as such risks and perils are open, apparent and discernible by a person of his age and capacity in the exercise of reasonable care for his own safety. But wé do not think that these rules are at all inconsistent with that heretofore adopted by this court, namely: if the questions whether the servant knew or ought to have known of the danger are in dispute, and from the facts stated “different conclusions might be drawn by different men of fair, sound minds, then the matter must go to the jury; but if only one conclusion can be reached by men of fair, sound minds, the determination is for the court. ” (Prosser v. Montana Central Ry. Co., 17 Mont. 372, 43 Pac. 81, 30 L. R. A. 814; McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 701.)

The McCabe Case illustrates the principle involved here. In that ease the plaintiff was a switchman employed in the yards at Great Falls. He had frequently had occasion to see the different switch-stands in the yards; but this court, in reversing the district court for granting a nonsuit, held that whether the plaintiff assumed the risk necessarily depended upon his knowledge or means of knowledge as to the location of switch-stand No. 2, that is, his knowledge or means of knowledge of its close proximity to the track, and that upon the plaintiff’s denial of such knowledge and the circumstances appearing from the evidence, which did not present so strong a case for the plaintiff as do the facts above narrated, the motion for nonsuit should have been denied and the question of his knowledge or opportunity of knowing left to the jury.

The plaintiff was not required to carry a rule with him and measure the distance from the bridge to the platform of the car where he stood, and the mere fact that he may have noticed on the first trip which he made on this spur, if he did do so, that the bridge timbers were only about eight inches above the top of the gondola car is not sufficient to justify a court in saying, as a matter of law, that he should have appreciated the danger to himself in ease he should attempt to ride upon the platform of the car while it was being drawn under the bridge. And this is not. opposed to the doctrine announced in Jennings v. Tacoma Ry. etc. Co., 7 Wash. 275, 34 Pac. 937, cited by counsel for the railway company. In that case the plaintiff permitted himself to-stand between a brick wall and a passing car where the space was only three and one-half inches, but the court said: “Had the space between ten or twelve or fourteen inches, the man might readily have been deceived and have been led into trouble.”' And so, in this case, we are not prepared to say that if the space between the platform of the ear and the bridge had been bnt one foot or two feet, and plaintiff’s duty had not required his attention away from the bridge, he might not then have been charged with knowledge of the danger, but this we do not decide. However, had he observed the bridge, which he says he did not, we are not prepared to say that he ought to have appreciated the fact that the distance between the platform of the car and the bridge was only four or four and one-half feet. We think the case presented by this plaintiff was much stronger than that in the McCabe Case; but the decision in the McCabe Gase completely disposes of the contentions made by counsel for appellants. The motions for nonsuit were properly overruled.

Instruction No. 8 is as follows: “You are instructed that although you should find that the plaintiff knew of the existence of the bridge or trestle, and knew that it was so low as that he could not pass under it in safety, standing where he stood at the time he was injured, yet, if, at the time he was injured, he was engaged in discharging his duties as a brakeman, and by reason of his attention to his duties, and his absorption in their discharge, he omitted for the moment to think of the bridge, or thinking of it, did not recognize that the train had already proceeded so far as would bring him in contact with it; and you further believe from the evidence that a reasonably prudent man, under all the circumstances, might have omitted for the moment to bear in mind the danger, or to recognize that he was in such close proximity to the bridge, considering the speed at which the train was going, then the plaintiff was not negligent in forgetting, if he did forget, about the bridge, or in failing to recognize, if he did fail to recognize, how close he was being brought to it.”

This instruction involves a consideration of the question: May a servant, with knowledge of an existing danger, excuse himself from what would otherwise be his contributory negligence, by saying: “I knew the danger, but for the moment I was so completely engrossed in the performance of my duties that I forgot the danger or did not appreciate the fact that I was in close proximity to it”?

That there is a well-established rule of law respecting this question is conceded. The extent of the rule rather than its existence is the subject of controversy. It has been variously stated by various courts and text-writers, and in many instances the conclusions reached are not reconcilable. But the trend of the modern decisions is toward the rule considered more humane from the standpoint of the servant, which resolves itself into a declaration that, if the service is of such a character as to engross the attention of the servant, the master may not say the servant should have divided his attention between the performance of the particular duty and keeping a lookout for danger. In other words, if the servant has two duties to perform, one to do the work of his office and the other to be vigilant in looking out for danger, his failure to perform the latter will not, as a matter of law, constitute contributory negligence, where such failure results from the necessary observance and performance of the former, where such observance and performance engross his attention, if a reasonably prudent man under the circumstances would have been likely to make the same mistake. And the reason for the rule is apparent. It goes without saying that/ if the servant’s attention is engrossed by the performance of one duty, it cannot be divided between the performance of that and of another; and it would be a harsh rule indeed which would permit the master to say to his servant: “You must perform the duties of your position, even though such performance requires your undivided attention, and at the same time you must give a portion of your attention to known dangers or suffer the consequences of an accident.”

We think the rule we have announced is supported by the decided weight of modem authority. In substance it is announced in 1 Labatt on Master and Servant, section 350. That author, after considering the inapplicability of the doctrine to defeat the plea of assumed risk, says: “A materially different situation is presented where the fact is considered in regard to its bearing upon the question of how far the servant’s close attention to his duties tends to rebut the inference of contributory negligence. In this point of view the effect of the decisions may be summed up as follows: Where the servant failed to take such precautions as were appropriate for the purpose of protecting himself at the moment when the accident occurred, evidence that such failure was due to the fact that his attention was engrossed by his duties is always competent for the purpose of rebutting the inference of contributory negligence which might otherwise be drawn from his conduct; and if such'evidence is offered, a court is very seldom justified in declaring him to have been, as a matter of law, wanting in proper care.” A long list of modern authorities is cited in support of the text. And we think the author is entirely consistent too, in section 351, wherein he announces the limits of the doctrine, as follows: “To justify applying, for the servant’s benefit, the doctrine stated in the last section, it must appear from the evidence that the circumstances were either such as to create a situation approaching to or constituting an emergency, or such as to exhibit the servant in the light of a person who was discharging a duty which demanded an unusual amount of attention. The effect of allowing it to operate in cases where he was merely discharging, under normal conditions, some ordinary function incident to his employment, would manifestly be to render the defense of contributory negligence little more than a merely nominal protection to the master.”

Of course, if the evidence showed that the plaintiff was merely performing his ordinary duties under normal conditions, we are not ready to say (and it is not necessary for us to say in this ease) that he could excuse himself by asserting that he forgot a known danger, although some of the authorities appear to go to this extent, but in this instance every requisite of the rule we have announced is fully met. The evidence is ample to show that an emergency arose. The train started before the brake was released. Plaintiff’s duties required him to act promptly and with dispatch. The brake refused to respond as it should have clone, and plaintiff’s attention was absorbed in attempting to perform his duty.

The facts in Cummings v. Helena and Livingston Smelting and Reduction Co., 26 Mont. 434, 68 Pac. 852, are quite different from those in this ease, and the doctrine there announced, we think, is not inconsistent with the rule just stated. In our opinion, instruction No. 8 fairly states the law. Whether this doctrine is applicable against the defense of assumed risk is not before us. It is only argued as presented by instructions 8 and 13 given, and the railway company’s refused instructions 2 and 3, and these all have to do with the question of contributory negligence and not with the defense of assumed risk.

Instruction No. 13 is erroneous, but it is not subject to the attack made upon it by counsel for the railway company, and, as the smelting company relies entirely upon the argument made by the railway company, it is not open to attack at all in this case. It is not open to the particular attack made by the railway company, for the reason that it is practically the same instruction as No. 6 requested by that company. The instruction as given is as follows:

“Before the plaintiff can be excused for failing to see the tramway, if you find that a reasonable person exercising reasonable watchfulness ought to have seen it, it must appear from the evidence that his duties were claiming his attention, and therefore drawing his attention from the tramway and other visible things from the time when he first could have seen it; and if there was any reasonable period from the time that he stepped on the ground beside the engine at the gangway, while he was walking toward the tramway, during which he had no duty of the kind referred to to perform, or before his duties began, which period was reasonably sufficient to have enabled a person not engrossed in duties to have noticed the tramway, then you are instructed that the plaintiff’s failure to notice it under such circumstances would be contributory- negligence and would prevent his recovery in this action, unless you should also find from the evidence that, at the moment of the accident, his attention was so far absorbed in the discharge of duties required of him at that moment that he omitted to think of the bridge.” The court omitted an opening sentence, which did not add anything of merit, and added these words: “Unless you should also find from the evidence that, at the moment of the accident, his attention was so far absorbed in the discharge of duties required of him at that moment that he omitted to think of the bridge,” and added a further sentence which is not criticised.

It will be observed that, in the instruction as offered by the railway company, the rule is announced that, in order for plaintiff to excuse his failure to see the tramway, his duties must have been claiming his attention from the time when he first could have seen it. The amendment made by the court only limits this like doctrine to the particular moment of time when the plaintiff was injured, and however erroneous the instruction is, it was not made any more so by the amendment, and the railway ■company cannot complain that the court announces a rule of law which it itself had urged upon the court. We think there is not any difference whatever in principle between the rule embraced in the instruction as offered and the one in the amendment.

Counsel for the smelting company urge that the court erred in refusing its offered instruction No. 8, as follows:

“The court further instructs you that before you can find in favor of the plaintiff as against the smelting company, you must find that said smelting company owed a duty to the plaintiff and failed to exercise ordinary care or skill toward him, by which failure the plaintiff, without contributory negligence on his part, suffered the injury complained of. In determining this question as to whether the smelting company owed any duty to the plaintiff you will take into consideration the fact that the 'plaintiff had no contract whatever with the smelting company; that he did not sustain the relation of servant to master to the defendant smelting company, but that the plaintiff was the servant of the defendant railway company and not under the control or direction of the smelting company, and if, upon the consideration of all the facts proven in the ease, you find that the defendant smelting company owed no duty to the plaintiff by the violation of which the injury was caused on the part of the smelting company to the plaintiff, then your verdict should be in favor of the defendant smelting company.”

The court by instruction No. 6 (any objection to which is waived by the failure of either defendant to argue the matter) told the jury in effect that if the employees of the railway company, including the plaintiff, were taking out the cars from the concentrator at the invitation, express or implied, of the smelting company, then the smelting company did owe to such employees a duty, any violation of which would render that company liable. That this is a correct rule of law and applicable to the facts of this case can hardly be questioned. The rule is stated with the authorities in support of it, in 21 Encyclopedia of Law, second edition, 471, and Thompson on Negligence, sections 978, 979. Under the circumstances of this case, the requested instruction No. 8 could hardly have failed to mislead the jury. The court, having submitted a correct rule of law for the guidance of the jury, properly refused the instruction requested.

It is also urged by the smelting company that the court should have instructed the jury, as a matter of law, that if the bridge or trestle was built with a drawbridge, which could be removed and thereby rendered harmless, then the yerdict should be in favor of the smelting company. But we think that was also properly refused. It can hardly be said that the mere fact that the bridge could be removed would, as a matter of law, absolve the smelting company from liability. It is charged with negligence in constructing and maintaining the bridge so low .that it was dangerous to the employees of the railway company in discharging their duties about it. "Whether the construction and maintenance of the bridge in the manner in which it was1 constructed and maintained constituted negligence on the part of the smelting company, we think was a question to go to the jury under proper instructions.

Counsel for the smelting company also asked the court to give an instruction numbered 6, which might have been proper had it not contained the concluding sentence: “And if he (plaintiff) knew the bridge was there and at the moment forgot the same, this will not excuse him. ’’ Of course this last sentence is.directly opposed to the doctrine announced in instruction No. 8, given by the court and approved by us, but counsel in their reply brief say: “The fact that we added to this instruction the following: ‘And if he knew the bridge was there and at the moment forgot the same, this will not excuse him,’ affords no excuse for not giving that portion of the charge above quoted. The court could have stricken out this portion just as he added a modification to the instruction 13 as requested by counsel for the railway company.” The court, of course, might have stricken out this objectionable sentence, but it was not bound to do so, and error cannot be predicated upon its refusal.

So far as the smelting company is concerned, our attention has not been directed to any reversible error committed by the court. Upon the facts the ease was properly submitted to the jury. The errors assigned which are presented by this company and which are not antagonistic to its joint appellant, have all been considered, if not discussed separately.

On behalf of the railway company it is urged that the court erred in giving instructions 4, 5, 7 and 9. Instructions 4 and 5 deal with the question of the master’s duty to the servant. In No. 4 it is declared: “A railway company is bound to provide suitable and safe material and structures in the construction of its road and appurtenances, 'and to maintain them in a reasonably safe condition. ’ ’ Further on in the same instruction there is an attempt apparently made to limit or explain this sweeping statement as follows: “The railway company is not to be held as guaranteeing or warranting absolute safety under all circumstances, but is bound to exercise the care which the exigencies reasonably demand in furnishing a proper roadbed and track, and in keeping the same free from obstruction with which its servants are likely to come in contact and be injured in the ordinary discharge of their duties.” In No. 5 it is said that “the defendant railway company was bound to use due care as between it and its servants, and to keep the track on which it was operating its cars at the time the plaintiff was injured in a safe condition for the use of its servants in doing the work for which their duties devolved upon them.” And further on in the same instruction it is said: “It was bound to use due care to keep them in a reasonably safe condition”; and again: “If the defendant railway company did not own or control the track, it was bound to see that it was kept in such condition as that it was reasonably safe for the employees of the railway company to do their work on and over it. ’ ’

It is unfortunate that some courts, including this one, have been extremely careless in attempting to define the master’s duty in this regard; but no useful purpose can be subserved in continuing the like practice after our attention has been called to the error, as is done in this instance.

It will be observed that in instruction No. 4 the jury was told that the master’s duty is (1) to provide suitable and safe materials and structures, and maintain them in a reasonably safe condition; (2) to exercise the care which the exigencies reasonably demand in furnishing a proper roadbed and track, and in keeping the same free from obstructions. Was the jury to understand that this was intended to be two statements of the same rule, or the statement of two different rules, and, if the latter, which rule should control Í In fact neither is a correct statement of the law. In instruction No. 5 the master’s duty is again defined to be (1) to use due care as between itself and its servants; (2) to keep the track in a safe condition for doing the work required of the servant; (3) to use due care to keep the track and appliances in a reasonably safe condition; and (4) to see that the track was kept in such condition as that it was reasonably safe for the servant to do his work. Having read these instructions, the jury might properly have drawn any one of a half dozen different conclusions as to the master’s duty toward the servant; but the most natural conclusion, it seems to us, for the jury to have drawn, would have been that the court was simply stating the same rule in different terms, and that, in fact, the various statements were intended to mean the same thing. It is asking altogether too much of this court to say that the jury selected the one statement of the rule which is substantially correct so far as it goes, and rejected the other statements of it which are erroneous. The rule of law defining the master’s duty to his servant in this respect is: The master’s «duty to the servant is to exercise ordinary care to furnish reasonably safe roadways and appliances, and use ordinary care and •diligence to keep them in a reasonably safe condition. (Union Pac. Ry. Co. v. Jarvi, 53 Fed. 65, 3 C. ,C. A. 433; 4 Thompson on Negligence, sec. 3767.) We hardly think this court would be justified, under all the facts presented by this record, in saying that if was negligence per se on the part of the railway company to operate its trains under this bridge or trestle.

In its instruction No. 7 the court said: “The plaintiff is not required to prove to your satisfaction that he is not guilty of contributory negligence; the defendants must prove that he was. So likewise the plaintiff is not obliged* to prove to you that he did not know of the existence of the bridge, and that it was so low that he could not perform his duties in safety. The defendants must show that he had such knowledge. ’ ’ And instruction No. 9 is as follows: “In order to establish the defense of assumed risk in this case, it is not enough that it should appear from the evidence that the plaintiff knew of the existence of the bridge. You must reach the conclusion from the evidence, not only that he knew of the existence of the bridge, but also that he knew it was so low that he could not pass under it in safety while standing on the platform of the car in the discharge of his duties, or you must find in favor of the plaintiff on this issue. ’ ’

Each of these instructions is clearly erroneous. Actual knowledge on the part of plaintiff of the existence of the danger is made the test of plaintiff’s assumption of risk. If such circumstances were shown that a reasonably prudent man ought to have known of the danger, the plaintiff was chargeable with knowledge, even though in point of fact he may not have had such knowledge. In 4 Thompson on Negligence, section 4647, the rule is more fully stated as follows: “Negligent ignorance-being in law tantamount to knowledge, it is sufficient, to put upon the servant the disadvantage of accepting the risk, that he knew of the source of danger, or might have known of it by the exercise of that measure of eare which he ought to take for his own safety under the circumstances of the particular case, which comes within the description of ordinary or reasonable care. The true test by which to determine whether the servant assumed the risk of the particular danger as one of the ordinary risks of his employment, and whether he was guilty of contributory-negligence in facing or neglecting the danger, is to consider whether, under all the surrounding conditions, he ought to have known and comprehended the danger, and not whether, in point of fact, he did know and comprehend it.”

We have examined the other assignments made by the railway .company, but think they are without merit.

As to the defendant Helena and Livingston Smelting and Réduetion Company, the judgment is affirmed. For the errors in giving instructions 4, 5, 7 and 9, the judgment is reversed and a new trial ordered as to the defendant Northern Pacific Railway Company, which has specified and urged these errors.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.

Petition for rehearing filed by the appellant Helena and Livingston Smelting and Reduction Company denied June 16, 1906.