(After slating the facts.) — Unless the amended declaration sufficiently states matters not contained in the original declaration that constitute a cause of action, the cause is res ad judie at a, and the judgment for the defendant should be affirmed, since the adjudication of matters presented by the former declaration is now the law of the case. McKinnon v. Johnson, 57 Fla. 120, 48 South. Rep. 910.
A railroad company, like other public utility corporations should be required to’ make reasonable provision; for the safety of its employees and patrons and to respond in damages as required by law for the negligence of its employees that proximiately causes injury to others. But such corporations should not be required to compensate injuries for which in law they are not responsible. Unlawful and unreasonable requirements of public service corporations would cause unjust injury to those whose labor and property are used in rendering" the public service' and would injuriously affect the service and the'ratos therefor .afforded to the public, thereby violating positive law and public policy. Hildreth v. Western Union Tel. Co., 56 Fla. 387, 47 South. Rep. 820. Damages may not be recovered from a railroad company for every injury received in the operation of railroad cars whether the company is reasonably and legally responsible for the in*152jury or not. Such a rule would be patently unjust and detrimental to the public welfare.
The allegations of the declaration that the hand car was defective and that the defect “was concealed from open observation,” and that such defect was “concealed under the hand car and not noticeable by outward observation,” are not supported by any allegation that the defendant knew of such defect or by the exercise of ordinary care should have known of it, so as to show negligence on the part of the defendant.
It is the duty of employees to exercise ordinary and reasonable care to avoid injury to- themselves, and fialure to observe this duty may be such fault or negligence as precludes a recovery under the statute from the master for injuries received by the employee. German American Lumber Co. v. Brock, 55 Fla. 577, 46 South. Rep. 740; Florida Cent. & P. R. Co. v. Mooney, 40 Fla. 17, 24 South. Rep. 148. The statute under which this action is brought expressly provides that where an employee of a railroad company is engaged in certain hazardous employment and is injured by the negligence of another employee of the company, a right of recovery from the company exists only where the injury was caused “without fatilt or negligence on the part of the person injured."
Whatever -may be the eomimon law doctrine of contributory negligence, and of assumed risk, under the statute authorizing this action where the plaintiff was an employee of a railroad company who was injured “by the'running of the locomotives, or cars, or other machinery of such company, and the damage was caused by negligence of another employee,” the plaintiff to be entitled to recover damages from the company must by the terms of the statute be “without fault or negligence."
It has frequently been held that a recovery under the statute for an injury caused by the negligence of another *153employee can be had only when the injured employee of the railroad company was entirely free from fault. Florida Cent. & P. R. Co. v. Mooney, 40 Fla. 17, 24 South. Rep. 148; Duval v. Hunt, 34 Fla. 85, 15 South. Rep. 876; Atlantic Coast Line R. Co. v. Ryland, 50 Fla. 190, 40 South. Rep. 24; Little v. Southern R. Co., 120 Ga. 347, 47 S. E. Rep. 953; Western & A. R. Co. v. Herndon, 114 Ga. 168, 39 S. E. Rep. 911.
It appears from each count of the amended declaration that the plaintiff was exercising immediate authority •over the other employee alleged to have been negligent and that the plaintiff could 'by the exercise of his authority have avoided the accident if he had given timely orders or directions to the negligent employee.
If it can be assumed or inferred that some other conduct on the part of the person who was propelling the hand car as alleged in the declaration was the proper conduct under the circumstances, it may also be assumed or inferred that the conduct complained of was not so sudden and effective in causing the accident as that the plaintiff could not by the exercise of ordinary and reasonable care have observed it and ordered it stopped in time to avoid the accident. The plaintiff it seems had ample authority to protect himself, and if he negligently failed to exercise his authority in time to avoid injury to himself he cannot recover in this action. It does not appear to be reasonable to assume that the plaintiff could not and should not have observed the speed of the car and the improper action of his subordinate necessary in causing the car to' sway in time -to prevent the accident. On the contrary, the alleged swaying of the hand car must have been accelerated by undue speed and must have gradually increased in violence, and' if the plaintiff had exercised care in time by ordering the improper conduct to cease there would prob*154ably have been no such serious accident as is described. It appears from the declaration that the plaintiff had previously been present when the hand car was used at slow speed without injury to any one, and even if the car was not in a reasonably safe condition -and the plaintiff was not at fault in. not observing its condition the accident would most probably not have occurred but for the failure of .the plaintiff to require proper 'conduct on the part of ’his subordinate who was under plaintiff’s direction engaged in propelling the car at too' high speed and in an improper manner.
Frcm the allegations of the declaration and the inferences fairly drawn therefrom it appears that in not duly exercising the authority he had over the alleged negligent and careless subordinate, the plaintiff was not “without fault or negligence” as required by the statute .as a prerequisite to a right of action to recover from the railroad company damages for the injuries complained of. Atlantic Coast Line R. Co. v. Ryland, 50 Fla. 190, 40 South. Rep. 24.
A proximate cause of the injury as alleged is the negligence of the subordinate employee who was under the immediate authority of the plaintiff, and whose alleged negligence could have been checked by the plaintiff if he had exercised his authority with ordinary care and attention to his duty and safety. It appears that the plaintiff did not duly exercise his authority and did not perform. his duty to himlself with ordinary care. Even though' 'the damage was oaused by negligence of another employee,” it does not appear to 'have been done “without fault or negligence on the part of the person injured” as required by the statute.
The judgment is affirmed.
All concur.