delivered the opinion of the court,
*38In the argument of this case, but two questions were presented for the determination of the court:—
1. Does the evidence show that William Galbraith, at the time of the fatal injury, was in the service of the defendant company?
2. Was it the duty of the court to instruct the jury, as an inference of law from the facts proved, that the deceased was guilty of contributory negligence ?
Under the pleadings in the cause, the first, question, we think, becomes unimportant. The declaration expressly avers, by way of inducement, that the Somerset and Cambria Eailroad Company is a corporation, under the laws of this Commonwealth, and “the owners and proprietors of the Somerset and Cambria Eailroad, and of the locomotive engines and cars running over and upon the same,” &c., and that being such owner, &c., William Galbraith, husband of the plaintiff below, “became and was emploj'ed as a conductor of a freight train of cars of said defendant, on said road.” The defendant’s plea was “not guilty,” which under the rules of court operated only “ as a denial of the breach of duty, or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement.” The plea was accompanied by an averment of special matters upon which the defendants gave notice they would rely at the trial as follows :— “ That the road of the defendant company was opened and trains commenced running on the same,” &e., “ that the condition of the road was well known to the said William Galbraith, and that he accepted employment under said company, as a conductor on freight trains with full knowledge of its condition; that if there was any defect in the road at the culvert at or near ‘ Eerndale Station,’ either in said culvert, or road-bed, or rails, at or near the same, or in the locomotives, tenders, ears, coupling and machinery, etc., the same was well known to the said William Galbraith for some time prior to the alleged injury, and that he continued in the service of the company with said knowledge and accepted the risk of said employment.” In view of this solemn and deliberate admission of the defendants, entered of record in the cause, can it be pretended there is no evidence that William Galbraith was in their employment?
It is true, the evidence taken at the trial on this point was meagre and unsatisfactory, perhaps to some extent conflicting, but in view of the condition of the pleadings, but little if any proof was required. The purpose to be attained by the filing of a notice of special matter with the general issue plea, is to inform the adverse party of the precise question in controversy ; it is to lead the litigants to the real matter in dis*39pnte, not to mislead, and what is thus unequivocally admitted need not be shown.
The second question in the cause, as to the alleged contributory negligence of the decedent, is the substantia] and important one. In the consideration of it we assume the negligence of the defendants, and its causal relation to the injury ; no question is here made as to that, and we are controlled by the finding of the jury. What constitutes negligence, in a particular case, we have frequently said is, in general, a question for the jury. The veracity of the witnesses; the conflict in the evidence ; the reasonable doubt as to the facts tending to prove negligence, or as to the just inference to be drawn therefrom, and the varying standard of duty, according to the particular circumstances proven at the trial, are matters, which taken together or separately, cause the question, generally, to be one, under proper instructions, for the consideration of a jury. There are cases, it is true, where the facts are admitted or undisputed and the standard of duty is determinate, in which it is the duty of the court to declare upon the question of negligence as matter of law. A servant cannot recover where, from neglect of known duty, or want of care on his own part, he has contributed to the injury ; if he recklessly or needlessly expose himself to danger, or by disregard of his duty to his employer, inflicts injury upon himself he must accept the consequences of his own act. This is a proposition so plain, and so well established, that a reference to authorities in support of it is unnecessary.
If Galbraith therefore, as an employee of the company, negligently left the post of duty assigned to him under the rules and regulations of the company, where he would have received no injury, went upon the engine, where his duty did not calL him, thereby lost control of his train, and thus contributed to the injury which caused 1ns death, the duty of the court would be plain; such a course of conduct would undoubtedly constitute negligence, and there could be no recovery in this case. But we cannot assume all these facts; Galbraith was the conductor of the train, lie was bound to exercise in the interest of liis employer all due care and caution. If he knew of any obstruction on the track, or had reason to expect any, it was his clear duty to guard against it. “The conductor,” as Sanner, the witness, says, “is held responsible for the safe transport of his train, and that requires of him, in eases of this kind, to use judgment.” His duty under the general rules of the company “in all cases of doubt” was to “take the safe side;” and what is the safe side in any given exigency, is, of course, a question for the exercise of judgment. He had, it is true, certain orders from the company under the general *40regulations, one of which was, that he should remain in the middle of the train, to command the crew, in regulating the speed on descending grades. He was held, of course, to the reasonable observance of all these rules, but he had a general' duty and discretion to exercise in an emergency. His duty varied according to the circumstances. Unless some exigency calls him away he must remain at his post, whilst the train is on a descending grade, but he must necessarily be allowed some latitude in the exercise of judgment for the safety of his train. When Galbraith came upon the engine, he said to Sypher, the engineer, “ Look out — run slow, and look out for the Cambria Iron Company’s engines, the3r are liable, sometimes, to come outside of their limits.” He made no other communication, and an inference may be drawn that this was the object of his errand. If the fact were known to him, that the engines of the Cambria Company, at times exceeded their bounds, it was his plain duty to exercise a reasonable precaution against a collision with them; if they had on previous occasions exceeded the limit, they might do so again. The train was running on special order No. 4, with instructions to flag against these engines between the first bridge west of Johnstown and Johnstown only, but if there was any probability of an obstruction, not known to, or considered by, the company, in making that order, it was his duty to guard against it, and he was privileged to walk on all parts of the train for that purpose. Thus whilst his dut3r, under general orders, were on a descending grade, to be in the middle of the train, he was liable in an exigenc3r to be called elsewhere.
If there was a.n3r condition of things existing, or reasonably apprehended, which justified the conductor in leaving his place, to communicate with the engineer, and no more time was taken than was necessary for the purpose, he certainly cannot be couvicted of negligence; and these facts although disputed at the trial were b3r the jury determined in his favor.
The charge of the court may not be strictly accurate in all respects, but its inaccuracies, if there be an3r, did the defendant no harm ; upon the points discussed in this court it was certainly correct.
The judgment is affirmed.