The judgment sought to be reversed was recovered in the district court by Barber, the defendant in error, for an injury received by him while employed and acting as the conductor of a train of freight cars on the railroad of the plaintiff in error. The alleged ground of the company’s liability was :
1st. Failure and neglect to provide the train with the necessary number of hands to manage and control the same ; and
2d. Failure and neglect to furnish the train with necessary, suitable and safe'machinery for running and managing the same; and for negligently and wrongfully furnishing the train with de*558fective and unsafe machinery, and cars with platforms unsuitable and unsafe to stand on in working the said machinery.
The main and leading questions presented in this case, therefore, arise out of the duties and obligations created by the relation between Barber as the conductor of a train of cars, and the company as his employer. This relation, both as to its nature and its legal incidents, differs somewhat from that of a subordinate hand on the train, and the company; it also differs from that of a passenger on a train of cars, and the company; and it also differs from that of a person receiving an injury on the railroad, who is neither a passenger nor an employee. As between the company, and a person who is neither a passenger nor an employee, there is no relation arising out of any privity of contract; consequently any liability of the former, for an injury to the latter, can be determined only by that pervading principle of social duty founded on the common law, that every person must so conduct his own affairs as not to injure the rights of another, expressed in the legal maxim, sic utere tuo ut alienum non Icedas.
As between a passenger and the railroad company, the duty of safe conveyance is measured by a severe rule arising out of the nature of the obligation, and a principle of public policy. Those who ordinarily intrust themselves, in traveling, to the agents and vehicles of railroad companies, have but limited means of information as to either the competency or fidelity of the agents, or the sufficiency of the cars and machinery; and passengers undertake to run those risks only, which cannot be avoided by the utmost degree of care and skill, on the part of the carrier, in the preparation and management of the means of conveyance. Such is the doctrine both of the English and the American courts. Hegeman v. The Western Railroad Corporation, 3 Kernan R. 9; Story on Bailm., secs. 601, 602; 2 Greenl. Ev., sec. 222.
The nature of the relation between the company and its agents and employees, being essentially different from that between the company and passengers, the duties and obligations arising out of it are different, and consequently give rise to a different rule of liability. The company can act only through its agents and employees, who are engaged in a common enterprise, in which they *559share the responsibility, and in which the safety of each depends much on the efficiency with which every other performs his duty. They have opportunities of observing the conduct of each other, and requiring fidelity by reporting delinquencies; and they have means of information as to the sufficiency of the machinery, and the condition of the road, as well as opportunities of adopting precautions for safety not ordinarily open to passengers. And they make their engagements to serve the company in view of the natural and ordinary hazards incident to the business, and must be presumed to stipulate for a proportionate compensation.
It was adjudged in the case of The Little Miami Railroad Company v. Stevens, 20 Ohio Rep., that when an employer places one person in his employ, under the direction of another also in his employ, such employer is liable for injuries to the person placed in the subordinate situation, by the negligence of his superior. And this doctrine was reviewed and affirmed by this court in the case of The C. C. & C. Railroad Company v. Keary, 3 Ohio St. Rep. 201, upon the ground that the injured agent or employee, at the time of the injury, was acting under the immediate control and direction of his superior, by whose neglect the injury was received; and thus occupied a position which precluded him, for the time being, from exercising his own discretion in looking to and providing for his own safety.
The principle settled in these cases, however, is distinguishable from that which governs in the case before us. Here Barber, at the time of the injury, was not under the direction or control of any superior officer or agent of the company. He had the control and charge of the train himself as its conductor. True, the train and the road were the property of the company. But the charge and use of the train were committed to Barber, who was at the time, so far as that train was concerned, the sole representative of the company. This superintending charge gave him power to regulate the speed of the train, to run it or to stop it, and to control and direct it in any emergency according to the dictates of his own judgment. True, he was to use and manage the train in accordance with the rules and regulations prescribed by the company; but in doing so, he was not under the directing *560authority of any superior or superintending agent of the company. The responsibility of his position imposed upon him the duty of reasonable care and diligence, not only in the management of the train, but also in the due inspection of the cars, machinery, and apparatus committed to his charge; and in case of any insufficiency in the number of the hands, or delinquency in the performance of duty by the hands on the train, or in case of any defect in the cars or machinery, to report the same to the company, and forthwith take the necessary and proper precautions for the safety of the train, and the persons upon it.
Under these circumstances, what risks did Barber assume to run, and what duties and obligations rested upon the company? The business was hazardous, and he undertook the employment, and made his engagement, in contemplation of the perils incident to it. The company did not insure him against accident, or those unforeseen perils which due and proper care and diligence could not provide against. Injuries from accidents which the utmost stretch of human skill and foresight cannot provide against, are incident to all situations and conditions in life. And because one person is in the employ of another in a hazardous business, it does not follow that the employer must stand responsible for damages resulting from injuries received through accidents which a proper degree of diligence and skill cannot guard against.
The company was presumed to use reasonable and ordinary care and diligence, in the selection and employment of competent and suitable agents and employees; in keeping its road in repair; and in providing it with sufficient and suitable cars and machinery for its use. And' in Barber’s undertaking to act as the conductor of this train of freight cars, he may be presumed to have stipulated in contemplation of the performance of this reasonable and ordinary duty on the part of the company; and to have undertaken to have incurred all the risks and hazards of the business, on that condition. The company, therefore, became responsible to him only, in case of an injury received by him through a neglect of that reasonable and ordinary care and diligence in' the performance of its duty, which it was presumed to exercise,' and in contemplation of which, its employees make their engagements. *561And this neglect, in order to create a liability on the part of the company, must be the wrongful act of the company as distinguished from the neglect of a mere operative or agent of the company. For, however as to passengers, or persons who are neither passengers, agents or employees, a railroad company may be responsible for injuries done by the neglect or misconduct of its agents or employees, while engaged in the business of the company, it appears to be settled, both in England and in this country, that the company -is not liable to an operative or agent in its employ, for injuries resulting from the carelessness of another operative or agent, when both are engaged in a common service, and no power or control is exercised by the one over the other. C. C. & C. Railroad Company v. Keary, 3 Ohio St. Rep. 201; Redfield on Railways 386. And this doctrine, that the company is not liable to one employee for injuries received from another in the same business or service, it is said, tends to make all employees anxious, watchful, and interested for the fidelity of each other, and it is one of the risks in view of which every employee enters the service of the company. But this doctrine, that the principal is not liable to one agent or servant for an injury arising from the neglect or misconduct of other agents or servants, must be received with this qualification, that the principal is without fault in the selection and employment of the other agents and servants, or in continuing them in their places after they have been shown to be incompetent or unsuitable persons. Of the cases in which it has been held that a principal is not liable to one agent or servant for an injury caused by the wrongful act of another agent or servant engaged in the same business, it was said by the court of appeals, in New York, in the case of Keegan v. The Western Railroad Company, 4 Selden R. 180, that “ They are applicable only where the injury complained of happened without any actual fault or misconduct of the principal, either in the act which caused the injury, or in the selection and employment of the agent by whose fault it did happen. Whenever the injury results from the actual negligence *562or misfeasance of the principal, he is liable as well in the case of one of his ^paployees or agents, as in any other.”
It appears that a principal is liable in damages for an injury sustained by his agent or employee while in his service, only where the injury is the result of an omission of that reasonable and ordinary care on the part of the principal himself in the discharge Of his duty, which persons of ordinary prudence are presumed to exercise in that particular pursuit. Where, therefore, an agent or employee of a railroad company has been injured by means of the neglect of ordinary diligence and care on the part of the company, either in not employing a sufficient number of hands to manage and safely run a train, or in employing, or continuing in the employment of the company, incompetent and unsuitable persons, or in not keeping the road in proper repair, or in providing the road with insufficient, defective, and unsafe machinery and cars ; — in either case, the company is liable. Rut the company would not be liable, even in any such case, providing the agent or employee was himself guilty of neglect or misconduct, at the time, which contributed to the injury; or providing the agent or employee, with a full knowledge of such omission of duty or neglect on the part of the company, waive the matter, by continuing in the service of the company without taking the precaution, or using his exertions, to have the omission or difficulty remedied. For if the agent or employee of the company waive the omission of duty on the part of the company, he takes the risk upon himself, and if damaged, he must abide by the maxim volenti non jit injuria.
A careful examination of the duties and obligations incident to the relation of employer and employee, touching the questions in the case before us, leads to the following conclusions :
1st. That the agent or employee of a railroad .company undertakes his engagement in contemplation of the ordinary hazards of the business, and upon the incidental condition, not that the company will insure him against accidental injuries, but will exercise reasonable and ordinary care and diligence in the discharge of its duties in regard to the business.
*5632d. That the company is not liable to one agent or servant for an injury resulting from the negligence or misconduct of another agent or servant while engaged in a common business with him, but without any superior authority or control over him.
3d. But where the company itself is in fault as to its own peculiar duties, and by means of its neglect of that reasonable and ordinary care which it must be presumed to exercise in regard to its own business, an injury is occasioned to an agent or employee, the company is liable in damages, unless the agent was also in fault, and his negligence or misconduct contributed as a proximate cause to the injury.
4th. If, however, the agent, with a full knowledge c>f the omission and neglect of ordinary care on the part of the company, continues on in the business of the company, without any correction of such omission or neglect, he thereby waives his own rights, and takes the risk on himself.
The application of these conclusions to the case before us, removes all difficulty in the determination of the main questions presented.
The first ground of neglect charged upon the company, is the failure to furnish the train with a sufficient number of hands. It appears from the testimony of the engineer, that there was neither a brakeman nor a trainman on the train, on the day of the accident; that the train never had a brakeman, and that for about four days or two trips it had been without a trainman; and he further testifies that there ought to have been one trainman and two brakeman on the train. In the absence of either a brakeman or a trainman, the conductor had of course to perform, to some extent, the duties of both; and he was in the act of performing the duty of one of these subordinate hands when he received the injury complained of.
It appears, therefore, that the company was guilty of a neglect of due and reasonable care, in the failure to supply the train with a sufficient number of han’ds for its safe and proper management. But in the charge and control of the train, Barber was the directing agent, and sole representative of the company. *564It was his duty to notify the company of the want of sufficient hands, and to require the company to furnish them. It is not averred in the petition, nor does it appear in the proof, that the company had a knowledge that this train was running without a sufficient number of hands, or that the conductor had either given the company notice of the insufficiency of hands on the train, or required them to be supplied. So far, therefore, as the deficiency in the number of hands upon the train contributed to the injury, the maxim, volenti non jit injuria, applies. It is an old and settled rule of the common law, that no one can maintain an action for a wrong where he has consented or contributed to the act which has occasioned it.
The other ground, upon -which the recovery was sought below, was the alleged failure and neglect of the company to furnish sufficient and safe machinery and cars ; and the alleged wrongful and negligent act of the company in actually furnishing the train with defective, unsafe and insufficient cars and machinery.
It appears that there was a defect in the link which connected the third and fourth car of the train back of the engine, on account of its not having been sufficiently welded in the making, by means of which a separation in the train took place. It appears further, that the brake on the first car of the detached portion of the train was in a bad condition for want of connection between the brake blocks ; that the brake chain was defective, and broke when Barber was attempting to use it to stop the detached portion of the train on a down grade. The top of the brake-staff was a cross-bar, and the platform for a person to stand on to work the brake, was claimed to be insufficient and unsafe. By means of these defects in the cars and machinery, the accident occurred by which the defendant in error received the injury.
The duty imposed on the company by the relation occupied by the conductor, was to use reasonable and ordinary care and diligence in furnishing him with sufficient, sound and safe cars and machinery for the train. This' duty required not only that the company should use proper skill and diligence in procuring and furnishing sufficient and safe cars and machinery, but also when *565notified that they had become insufficient and unsafe, or when they had been in use as long as they could with safety be used, to take them off the road until repaired and made sufficient and safe. And for any injury sustained by an agent or employee of the company, from any neglect of this duty, the company would be liable. But the relation occupied by the agent or employee, imposes a reciprocal duty upon him. It was the duty of Barber, as the conductor of this train, to use ordinary and reasonable skill and diligence on his part, not simply in the management of the train, but also in supervising the due inspection of the cars, machinery, and apparatus, as to their sufficiency and safety, while under his charge; and on the discovery of any defect or insufficiency, to notify the company, and to take the proper precautions to guard against danger therefrom. And if he was injured by the negligence of the company in furnishing, or continuing to use defective cars and machinery, yet if his own neglect of duty in the management of the train, or due inspection of the cars and machinery in his charge, contributed as a proximate cause of the injury, he could have no right of action against the company for damages ; or if he knew of the defects and insufficiency of the . cars or machinery, and without taking the necessary and proper precaution to guard against danger, continued to use them, he took upon himself the risk, and waived his right as against the company. If there was no neglect of due and ordinary care and diligence on the part of the company furnishing, or continuing the use of the cars and machinery, and the injury was caused by latent defects, unknown alike to the company and to the conductor, and not discoverable by due and ordinary skill and diligence in the inspection of the cars and machinery, it would be a misadventure falling among the casualties incident to the business, and for which no one could bo blamed. But if the defects which caused the injury, were actually unknown either to the company or the conductor, and not discoverable by due and ordinary inspection, and yet were such as resulted from a neglect of reasonable and ordinary care and diligence on the part of the company, either in procuring the cars or machinery to be made, or in continuing their use on the road beyond the time when they *566could be safely used, the company would be liable in damages for the injury. And whether such was the case or not, was a matter of fact for submission, under proper instructions, to the jury, in the court below.
The view of the law here expressed as applicable to this case, and in which we all concur, is at variance with the instructions given by the court below to the jury, in various particulars.
The charge of the district court to the jury, taken in its whole context, together with the instructions asked by counsel and refused or qualified by the court, gave an erroneous view of the law which governs this case.
The court instructed the jury as to the rule of liability applicable to the company, without the proper qualification where the fault of the conductor contributes as a proximate cause to the injury, or where the conductor, with a knowledge of omissions and neglect on the part of the company, waives its obligations, and takes the risk upon himself.
And the court instructed the jury as to the company’s liability, as follows: “ She undertook to furnish said train and machinery in good and safe condition; she undertook to devote reasonable care, attention and diligence to the machinery and other material that made up the train ; and this, either ly the plaintiff or some other person. She undertook to furnish the train with-.such number of hands, possessing reasonable skill, as were necessary to the safe conduct of the train. She agreed, in short, that everything necessary for the conduct of the train with safety to the conductor, should be done on her part. And finally, she undertook to be responsible to Barber for the negligence or carelessness of certain of. her employees, through whose negligence or carelessness an injury might result to him. And in the discharge of these undertakings, she was to use reasonable and proper care, diligence and skill.” And in this connection, the court charged, that “ that care, skill and diligence, in order to be reasonable when a party puts in motion a most dangerous body, must be of the highest orders And the court continued in these words: “ Now, inquire of the evidence whether the *567railroad company has performed these undertakings. If she has performed these, and all other undertakings on her part; if she has been guilty' of neither carelessness, negligence, or want of skill, she is not liable.”
Now the court, in thus charging, did not state the duty and obligations of the company with accuracy; did not distinguish between general acts of neglect on the part of the company, and negligence contributing either as a remote or a proximate cause to the injury; but by direct implication gave the impression, that if the company had neglected any of its undertakings,-either those mentioned or others, or been guilty of any act of negligence or want of skill, whether the same was connected with, or contributed as a proximate cause, to the injury or not, the company was liable to this action. The charge .in this respect was calculated at least to mislead the jury.
The court gave the instruction that the company “ undertook to be responsible to .Barber for the negligence and carelessness of certain of her employees, through whose negligence or carelessness an injury might result to him,” as a rule of law applicable to this case, without further qualification or explanation. As Barber was not acting under the immediate direction or control of any superior officer or agent of the company at the time, this instruction, as applied to this case, was directly at variance with the doctrine of the case of the C. C. & C. Railroad Company v. Keary, 3 Ohio St. Rep. 201.
The court also erred in instructing the jury, that what constituted “ the various duties of a conductor of a train of cars,” incident to his position, was a question of fact to be found by the jury from the evidence. Now what constitutes negligence in regard to a duty enjoined by any particular relation or employment, is usually, if not invariably, a mixed question of law and of fact; but what duty the law implies as incident to any particular relation or employment, is always a question of law for the determination of the court.
It is also assigned for error that the petition does not -set forth sufficient legal grounds to constitute a cause of action.
*568It is essential that the plaintiff, in order to lay a sufficient foundation for a recovery and judgment for an injury received by him while acting as the conductor of a train of cars, should aver, or show in his petition, in addition to the allegation that he had no knowledge of the insufficiency or defects which were the alleged cause of the injury, that he had exercised due care and diligence in the use, and also in the examination and inspection of the cars and machinery belonging to the train while the same was under his charge and direction. The petition contains no such averment, and on this ground is fatally defective.
Other questions are made in this case, but it is not deemed necessary to express the views of the court upon them.
Judgment of the district court reversed, and cause remanded.