Action for damages for the death of plaintiff’s intestate, alleged to have been caused by the wrongful act of the defendant. Plaintiff had the verdict and judgment, and the defendant has appealed.
It appears that the plaintiff’s intestate, Philip Feuerstein, was, on the 22d day of December, 190(1, and theretofore had been, employed by the defendant as a sectionman, and was working on that section of the defendant’s railroad track extending from Lincoln to Havelock; that while repairing one of defendant’s switch tracks, at or near Havelock, on that day, he was run over and killed by one of defendant’s switch engines.
The plaintiff, as grounds for a recovery, alleged, in-substance, that the switch engine which ran over Feuerstein was improperly and negligently constructed, in that it was equipped with a high square tank which obstructed the view of the engineer and fireman so that they were *62unable to see the deceased and warn him of his danger; that it was the custom of the defendant in the Havelock yards to have a switchman stationed on the footboard of its switch engines in order to warn persons on its tracks of its approach, and that at the time of the accident this custom was not observed; that the escaping steam from a passing freight train rendered it impossible for the deceased to hear or see the approaching engine which ran him down, or to hear the ringing of the bell thereof, if it was ringing. The defendant denied the allegations of negligence, alleged assumption of risk, and pleaded the contributory negligence of the deceased as a defense to the action. The reply was a general denial.
To maintain the action on his part, plaintiff called as a witness one Henry Seder, who was working with the deceased at the time he was killed, and who testified, in substance, that they were working at a switch near Have-lock; that a freight train came along on the main line about 40 feet from them; that at that time a switch engine was backing toward, the switch on which they were at work; that steam escaped from the freight engine and made a noise — a loud noise; that then the switch engine backed up and ran over Eeuerstein, who was standing with one foot inside and the other foot outside of the rail; that Eeuerstein was using a pick, and was on the north side, while he was on the south side; that he got off the track when he heard the switch engine bell, and that ho was watching the engine; that when he got off the track he called to 'Eeuerstein once before he was struck by the engine. When called later by the defendant the witness further testified that he heard the bell ringing and got off from the track; that he called to Eeuerstein, and said, “Look out”; that at that time the section foreman was absent, having been gone about 15 or 20 minutes; that when he went away he warned them both to look out for the switch engine; that the engine, while switching, had passed them about 20 times during that day; that they were always warned by the foreman to look out for switch *63engines and trains; that there was nothing to prevent them from seeing the approaching switch engine; that there was steam escaping from the safety valve on the top of the freight engine, but not from the cylinder cocks.
■On the question of the construction of the switch engine, the record discloses that it was an ordinary road engine of small size with the common square tank, which had been-replaced by a larger and heavier engine to supply the needs of the increasing traffic; that it was then equipped with what are called “foot-boards,” and was .thus fitted for switching and yard work; that it was suitable for that purpose and was similar to those used for switching by the defendant and other railroads; that, while switch engines are sometimes constructed with sloping tanks, both kinds are in general use for switching purposes, and the only difference between them is that the engineer and fireman can see the track a little nearer the back of an engine with a sloping tank than they can with one having a square tank.
Again, the evidence in this case fails to show that the construction of the engine was the proximate cause of the accident in this case. Indeed, there' is no proof in the record which shows that it in any way contributed thereto.
It further appears, by plaintiff’s own evidence, that the deceased had been working on the section and in the yards of the defendant company for about two months, was familiar with his work and knew its dangers; that the engine in question was in use during that time, and the deceased was familiar with its construction; that his eyesight was good and his hearing perfect. It also appears that he was fully aware of the dangers incident to his employment, and, in the absence of any proof to the contrary, he must be presumed to have assumed the ordinary hazards thereof.
It is alleged in plaintiff’s petition that it was the custom of the defendant to station a man on the footboard of its switch engines while working in its Havelock yards to warn persons of their approach, but it appears from *64the evidence that some of defendant’s tracks were constructed through its shops at that place; that when passing through them a guard is stationed on the footboard to warn the shopmen to keep off from the tracks, but no such lookout is or ever has been' stationed on the foot-boards of engines while switching in defendant’s yards, and it is the duty of the sectionmen or trackmen to themselves look out for approaching engines and trains, this being one of the ordinary hazards arising from the nature of their employment, and thns provide’ for their OAvn safety, and the deceased was fully aware of that fact.
Defendant contends that the eighth paragraph of the court’s instructions is erroneous. Therein the jury were told, among other things, that “the burden is also upon the defendant to sIioav that the plaintiff assumed the risk of the accident Avliich resulted in his death.” This is one of the principal errors complained of. In support of this contention defendant has called our attention to the case of Malm v. Thelin, 47 Neb. 686, Avhere it is said: “A servant assumes risks arising from defective appliances used or to be used by him, or from the manner in which the business in which lie is to take part is conducted, Avhen such risks are known to him, or apparent and obvious to persons of his experience and understanding, if he voluntarily enters into the employment, or continues in it without complaint or objection as to the hazards. * * * The presumption is that such risk has been assumed by the servant, and, in order to recover, the burden is upon Ihe plaintiff to establish one of the exceptions to the rule.” This case was folloAVed and approved in Evans Laundry Co. v. Crawford, 67 Neb. 153. See, also, Chicago, B. & Q. R. Co. v. Curtis, 51 Neb. 442, and Missouri P. R. Co. v. Baxter, 42 Neb. 793.
It is the universal rule that in operating railroads employees in that business assume the risks which are peculiar thereto, and sectionmen or trackmen must necessarily assume the hazards incident to SAvitching cars and (he moArement of passing engines and trains. Little Rock *65& M. R. Co. v. Barry, 84 Fed. 944. We have not overlooked the case of Grimm v. Omaha Electric L. & P. Co., 79 Neb. 387, where in general terms a contrary rule is stated. But in that case the servant was sent to perform an extra hazardous duty, without any Avarning as to the then unusually dangerous condition of defendant’s wires, and of which he had no knowledge. Therefore, that decision is clearly right, because that case Avas Avithih the exception to the general rule so often announced by our former decisions. We are therefore of opinion that the district court, in view of the testimony in this case, which fails to bring it within any of the exceptions to the general rule, erred in giving the instruction complained of.
Complaint is also made of the tenth paragraph of the instructions in which the jury were told that it is the duty of the master to exercise reasonable care to provide a safe place for the servant to work. It is contended that by this instruction the jury must have been led to believe that there Avas some evidence in the case that the place where Feuerstein was required to work-Avas unusually dangerous and unsafe, and that ’by reason thereof he lost his life. Defendant insists that this instruction should not luwe been giAren because the question of safe place was not involved in this action. It is a matter of common knowledge that a railroad track is a place of danger, and sectionmen or trackmen must be aAvare of that fact; that it is impracticable and impossible for a railroad company to keep a constant watch or lookout for the protection of sectionmen while engaged in construction or repair Avork upon its tracks; that therefore they are required to exercise their faculties of sight and hearing and thus avoid injuries from passing engines and trains. In this case, it appears, as above stated, that the deceased Avas familiar with the work; that he Avas acquainted with the yards, tracks and SAAdtches of the defendant company; that he knew of the construction of its SAvitch engine, and therefore must InTve been fully aAvare of the dangers incident to his employment. With this knowledge he sought and *66obtained work from the defendant company, and remained in its service without complaint until he was killed. In view of these facts, we are of opinion that the-court should not have included the question of safe place in its instructions to the jury.
It is also contended, among other things, that the evidence is insufficient to sustain the verdict. Upon this question we express no opinion, for it is possible that the case may be tried again, and that the evidence upon such trial may not be the same as that contained in the record now before us.
For the foregoing reasons, we are of opinion that the ei'rors above xxxentioned entitle the defendant to a new trial, axxd the judgment of the district court is therefore reversed and the cause is remanded for further proceedings.
Reversed.
Fawcett, J., not sitting.