dissenting, said:
I dissent from the opinion of the court in this case. lam at a loss to see how, upon this record, such a conclusion could have been reached.
There were two verdicts for the plaintiff in the court below. The first was for $8,000, which was set aside; the second was for $7,250, upon which judgment was entered, and the evidence (not the facts) is certified. The case, therefore, comes before us as on a demurrer to evidence. Code, sec. 3484. So that the appellant must be considered as admitting all that the jury could reasonably infer from the plaintiff’s evidence, and as waiving all its 'own evidence which contradicts the plaintiff’s evidence, or the credit of which is impeached, and all inferences from its own evidence which do not necessarily flow from it. This important rule, now established by the statute in such cases, although recognized in the opinion of the court as applicable here, has, nevertheless, in the disposition of the case, as it seems to me, been utterly ignored, and the case dealt with as though we were sitting here to perform the ordinary functions of a jury.
There are but two questions in the case. The first is, whether the company was negligent; and secondly, whether the plain*343tiff’s intestate was guilty of such contributory negligence as to defeat a recovery. Upon both of these questions two juries have found in favor of the plaintiff, and the last verdict was approved by the learned judge who presided at the trial, and saw the witnesses and heard them testify. It is under the latter verdict alone, that the defendant in error claims, and unless that verdict, when viewed in the light just mentioned, be palpably wrong, it is our duty to affirm it, according to the rule established by decisions of this court almost without number.
There is no dispute as to the law- of the case. It is not contended that a railroad company is the insurer of the safety of of its employees, nor that it is bound to provide only the best and safest instrumentalities, nor that it is required to change its machinery in order to apply every new invention or supposed improvement in appliance. But it is contended, as both the supreme court of the United States and this court have repeatedly declared, that it must not expose its employees to perils or hazards against which they may be guarded by proper diligence on its part; or, in other words, that it is bound to exercise ordinary care not only in supplying, but in maintaining, suitable and safe instrumentalities, including a safe track. Hough v. Railway Co., 100 U. S., 213; B. & O. R. R. Co, v. McKenzie, 81 Va., 71.
Now, whether or not this duty in the present case has been performed by the defendant was peculiarly a question for the jury; for, as was said by the court in Carrington v. Ficklin’s Ex'or, 32 Gratt., 670, what will amount to proof of negligence is necessarily a question of fact depending upon a great variety of circumstances which the law cannot define, and which must, therefore, be left to the jury upon the particular circumstances of each case. In the present case, the jury having found negligence on the part of the defendant, I do not see how, in the light of the rule applicable to a demurrer to evidence, and giving to the verdict the weight to which it is entitled, that find*344ing can be properly disturbed R & D. R. R. Co. v. Medley, 75 Va., 499.
That the “frogs” were dangerous is not disputed. But it is contended that they were of the standard pattern, and that.that fact of itself repels the imputation of negligence. From this view I dissent. If a standard frog, unguarded and situated, as this one was, in a place where there are many tracks, and where cars are shifted at all hours of the day and night, is not reasonably safe, then the company, in allowing it to remain unguarded, was guilty of negligence, and the jury rightly so found. Nor upon this point are we left to inference. The expert evidence for the plaintiff is conclusive that the dangerous condition of the frogs could easily have been guarded against by the device of “filling” them with cinders, which simple and inexpensive method, renders them safe to those whose duties call them upon the track, and at the same time does not interfere with their ordinary use. The witness, Perry, who for a number of years was in the employ of the defendant company as roadmaster, testifies that at terminal points, or in yards where much shifting is done, the frogs ought always to be filled, as a protection to switchmen, and this is so well understood, he says, that the laws of some States expressly require it to be done. And why should they not be filled? Why should the servant be exposed to unnecessary risks that can so easily be guarded against ? Is the .rule that the master must exercise reasonable or ordinary care a meaningless phrase —a mere jingle of words? I think not. As was decided by the supreme court in the Hough Case, it is the duty of the master not to expose the servant to perils or hazards against which he may be guarded by proper diligence on the part of the master. Or, in other words, to use the exact language of the court, the master is “ bound to observe all the care which prudence and the exigencies of the situation require, in providing the servant with machinery or other instrumentalities adequately safe for use by the latter.”
*345In that case the court cited a number of adjudged cases in support of its judgment, including an English case in the Exchequer Chamber, in which a recovery was sustained for injuries received by the servant in consequence of certain dangerous machinery being allowed to remain unfenced. And this court in the recent case of S. W. Imp. Co. v. Smith’s Adm’r, 85 Va., 306, recognized the principle that while a railroad company is not an insurer of the safety of its employees, yet that it is bound to do all that human care and vigilance can reasonably do, consistently with the practical operation of the road, to put its road and other instrumentalities in safe condition, and to keep them so; and authorities to the same effect are very numerous.
In the present case “prudence and the exigencies of the situation ” clearly required the defendant company, it seems to me, to fill* the frogs in its yard, or otherwise to protect its servants against them, and the jury, therefore, rightly found, I think, that, in the absence of such precautions, its duty to the deceased had not been fulfilled.
The evidence shows moreover, that the particular frog which caused the death of the deceased was different from all the other frogs in the yard. It also appears that the difference was explained to the jury. But the explanation itself is not in the record. We must, therefore,-infer that, in the judgment of the jury, the frog in question was more dangerous than the others, and that if the latter were adequately safe, it was not. This is, obviously, a most important point in the case, and as all the evidence upon which the jury acted is not copied into the record, the proper and necessary presumption is that the verdict, which was approved by the trial judge, is right. McArter v. Grigsby, 84 Va., 159; Adams v. Hays, 86 Id., 153.
That the present case widely differs from the Clark Case, which was the case of an overhead bridge, and from the Darracott Case, which was the case of a three-link coupling, is too plain for discussion. And the same remark applies with *346greater force, if possible, to the Stewart Case. In the latter case the deceased, when killed, was not only a trespasser, but had been expressly warned against the dangers of the place where he recklessly walked to his death.
It is contended, however, that in the present case the deceased knew of the dangerous character of the frog in question, and that his own negligence was the proximate cause of his death. There is no proof that he was acquainted with the character of the frog, and, viewing the case in the light of a demurrer to evidence, the presumption is that he was not. The evidence is that at the time of his death he “ was not regularly engaged in the yard,” and that he was working that night in another man’s place. Nor is there any proof that he ever saw the frog at all, or that he had any opportunity of seeing it. The night was dark, and it does not appear that his attention had been called to it. It is true he had been a brakeman in the yard before, but when, or how long, he was there does not appear. Nor was it proved that the frog was there at that time, and non constat it was not put there after-wards. Yet the statement in the opinion of the court that the frog “was known to him to be dangerous,”• constitutes, in large measure, the basis for the reversal of the judgment. It was certainly not a necessary inference from the fact of his previous employment in the yard that the frog was there at the same time, and the burden of proving contributory negligence was on the defendant. So West Imp. Co. v. Andrew, 86 Va., 270.
Then, was it negligence on the part of the deceased to go in between the moving cars to uncouple them? The jury found that it was not; but the court is of opinion that it was. I think the jury were right.
There is no rule of the company forbidding its employees to uncouple cars while in motion (or, at least, no such rule was proven), and it was the constant and “notorious” habit of the men to do it. Keys, the yard-master, testifies that he did it *347himself. It was proved, moreover, that it is not regarded, among railroad men of reasonable judgment, as dangerous or incautious to go between cars moving at the rate of three or four miles an hour to uncouple them, and it was only at the rate of four miles an hour that the train was moving when the deceased was killed. “ I could do it,” says Gay, a conductor in the defendant’s employ, “with perfect safety,” and there is other evidence to the same effect-.
But it is said that the deceased, in going in between the cars, violated the express orders of his superior officer, and hence assumed the risk of doing so. Upon this point, I am content to let the evidence speak for itself. The witness Keys> under whose charge the deceased was, testified that in executing the order given him to uncouple and side-track two of the cars, he (the deceased) “had four things to do, viz: (1), to throw the switch; (2), to signal the engineer back; (3), to cut the car loose; and (4), to get up on the car and bring it back,” all of which things he had to do successively. It was also proved that it was the duty of the engineer to obey the signal, and it must be presumed, in the absence of evidence to the contrary, that he obeyed it promptly. Then to obey the order to cut the car loose and “ ride it in,” after signalling the engineer to move, the deceased was obliged to go in between the moving cars, as he did, and as “the universal custom” of switchmen in that yard was. And here it may be remarked that if this custom was universal and notorious, as the evidence shows it was, without any rule of the company against it, then the jury had a right to infer that it was followed with the acquiescence of the company.
It is true the same witness, in a subsequent part of his examination, says he told the deceased not to go in between the cars, and that he often told him not to go between moving cars. He says, however, the deceased was “not more venturesome than others,” and it is fairly inferable, I think, that these orders were given in a general way, and on some other *348occasion or occasions than the one in question. At all events, if such an order was given at that time, it was totally irreconcilable with the positive order above mentioned; for to have ordered the deceased to signal the train back, and then to uncouple and ride the car in, but not to go between the cars, would be very much like ordering one to swim, but not to go near the water.
It is very clear, I think, that there is nothing in the record to justify an appellate court in setting aside the verdict of the jury, and that the judgment of the circuit court ought to be affirmed.
Judgment reversed.