Action by a servant to recover damages, for personal injuries alleged to have been caused by the negligence of his master. A trial to a jury resulted in a verdict and judgment for plaintiff for five hundred dollars, and the cause is here on the appeal of defendant.
Facts of the case are correctly stated by counsel for plaintiff as follows: “Defendant owns and operates a coal mine in Sdhuyler county. The coal is loaded into cars and hauled up out of the mine on a track of iron rails that rises on an incline from the mine to the tipple, motive power being a' steam engine. .Plaintiff was employed by defendant in the fall of 1906, as a trip rider, his duties being to take charge of the loaded cars at the foot of the incline and ride them to the tipple and when emptied he would get on the rear car and ride them hack into the mine and turn them over to the drivers. He always rode the trips. Albert Stein was mine foreman until November 16th. About the last of October plaintiff reported to Stein that there were some cars needing repairing and Stein said to him: ‘If we set off all the defective cars we will not have enough to run; you will have to use them and set them off as we can have them re*459paired.’ He said I would have to go ahead and use them. If he set out all the defective cars he would not have enough to run with. Plaintiff testified there were a number of defective ears. ‘ Some were busted at- the bottom. Some of the side hoards were pushed against the- side of the wheel. Some of the flanges were resting on the wheels and they viere loose. The axles on these cars were fastened to the bed with bolts and they were rotten. Some of the beds were loose and the .axles were loose. It would make them leave the tracks quicker and- have a tendency to make it run off the track when running at a high rate of speed.’ So under the orders of the foreman the cars were not repaired but continued in use. On November 19th, plaintiff took a trip of five loaded cars out of the mine to the tipple, riding on the rear car, in which position he would not notice the wheels of that car. The car that he rode out on was the front car on the return trip. After the cars were started] back he jumped on the rear ear. The weight of the cars runs them down the incline and the engineer can hol-d them back in the train. The trip rider has no- power over them. On this return trip it seems the cars ran much faster than usual. After the cars had started down the incline, plaintiff noticed a defective car in the front end, the wheels wabbled. He could see this from his .position on the rear car; he could see the wheels on the front car wabbling; this car did not travel as fast as the other cars, but lagged back. It jumped the track and threw the other cars off. Plaintiff had braced himself, but it threw him into the next, car ánd hurt his side and knee, resulting in permanently injuring and weakening the knee joint and ligaments, so that he suffered much pain and lost considerable time' from his work, and has ever since had a weak knee that is liable to slip out of place when he is working. ’ ’
Mr. Stein testified that he was mine foreman for defendant up until November 16th, that Gordy in do*460ing Ms •work from time to time would find ears needing repairs, and that fie fiad instructed Gordy to set out any cars that needed repairing; denies that Gordy ever reported cars as being in a dangerous condition and that lie never told Mm, “If we throw out all the defective cars we would not have enough to get the coal out.”
“I hired the blacksmith to repair the cars and told him (Gordy) to set the cars out. I had seen the cars and knew their condition. They were probably in as good shape as they are around at the mines. They needed repairing occasionally. I instructed Gordy to set out any cars that needed repairing. I did not instruct him to go ahead and use them and that I would have them repaired as fast as I could get to them.”
Plaintiff testified he never inspected the cars; that was not Ms business.
In the first instruction given at the request of plaintiff, the court told the jury “that it was the duty of the defendant to use ordinary and reasonable diligence to furnish plaintiff cars that were reasonably safe for the purpose for which he was required to use them. That it ■ivas not the duty of the plaintiff to inspect or examine them; that duty the law imposed upon the defendant. The plaintiff has a right to assume the defendant discharged that duty and to use such cars as defendant furnished him to use, unless you find from the evidence' they were so glaringly defective that a man of ordinary prudence would not have used them.”
In an instruction given at the request of defendant the jury were told: ‘ ‘ The court further instructs the jury that if you find and believe from the evidence that before the 19th day of November, 1906; defendant’s mine foreman had' instructed plaintiff to Watch for cars that were defective and in need of repair and to set out such car for repairs, it then became his duty to do so, plaintiff cannot recover if he failed in his *461duty in this respect and yonr verdict must be for the defendant, regardless of any other fact or issue.”
Without going into details, we understand the position of-plaintiff — supported-by substantial evidence —to be that he was not charged with the duty of inspecting cars but only with the duty of reporting cars he might discover in bad condition while in the performance of his work; while on the other hand the evidence of defendant will support a reasonable inference that it was one of the duties of plaintiff to inspect cars and to report all cars found to be defective. In this state of case, it is apparent the court did not err in refusing defendant’s demurrer to the evidence, and that it did err in giving the direction expressed in the italicized part of the instruction of plaintiff above quoted.
Defendant’s duty of mastership compelled it to exercise reasonable care to maintain the cars used in the mine in a reasonably safe condition for.use and if plaintiff was injured in consequence of a negligent breach of such duty, he may recover his damages, provided he was not guilty of contributory negligence. His evidence accuses defendant of negligence in requiring him to work with a defective car and tends to exculpate himself from the imputation of negligence in not discovering the defect before he did, and in continuing the work after he did discover it. If, as he says, defendant had not charged him with the performance of the duty of inspecting the cars, he should not be held responsible for the consequences of a breach of that duty and should be held free from culpability if he made such reasonable use of his senses as the proper performance of his prescribed duties-and the circumstances of the situation afforded him. His evidence presents the negligence of defendant and his contributory negligence as issues of fact for the triers of fact-to determine and, as we said, the learned trial judge properly overruled the demurrer to the evidence. *462But in telling the jury that, as a matter of law, it was not the duty of plaintiff to inspect the ears, the trial court ignored the evidence of defendant and took from the jury the determination of an issue of fact clearly and sharply tendered by substantial evidence. The law did impose on defendant the duty of maintaining the cars in a proper state of repair, but defendant, in the performance of that duty, had the right to employ a servant to make the necessary inspection, and if plaintiff was the servant employed to do that work, he could not recover for an injury resulting from his own failure to do the work assigned him. What we said in the following quotation from Rowden v. Mining Co., 136 Mo. App. 384, is pertinent and decisive:
“If, by express direction, or by implication from custom, acquiesced in by both parties, the duty of inspecting and trimming the roof had been delegated to plaintiff and his helper, in such case, plaintiff would have no cause of action. If the fall of the slab resulted from his failure to discharge such duty properly, that would be a result of his own fault, or if it occurred during the discharge of that duty in a proper manner, the result should be attributed to a cause that belonged to the natural risks of the employment. ‘When the work in hand is dangerous for the reason that it is to secure and make safe an unsafe place, the rule, as generally applied, that the master must furnish the servant a safe place in which to work can have no application. To say that a man can have a safe place to work in an unsafe place is an absurdity.’ [Henson v. Packing Co., 113 Mo. App. 618.] The question of whether defendant had made it one of the duties of plaintiff and his helper to inspect and trim the roof is presented by the evidence as an issue of fact for the jury to determine.”
The error in the instruction was prejudicial and was not cured by the instruction given at the request of defendant above copied. If that instruction is to be *463accorded the meaning placed upon it by plaintiff, it was in conflict with the instruction of plaintiff, and, consequently, could not be curative.
We find no other error in the record than that noted. The judgment is reversed and the cause remanded.
All concur.