Upon Petition to Rehear.
Whittle, J.,delivered the opinion of the court.
The rehearing in this case is prayed for on four grounds. The first and second assignments involve the affirmance by this court of the action of the circuit court in overruling the demurrer to the! second and fifth counts of the second amended declaration:
1. The interpretation of the second count in the petition for a rehearing is that it attempts by construction and habitual practice, known to and acquiesced in by the defendant, to escape the operation of the unambigious language of printed rule No. 26.
*736The divergence of opinion between counsel for the defendant and this court results from a diversity of view as to the legal import of the language employed in that count. On the point in issue the court in its opinion observes :
“The count substantially alleges that the accident was occasioned by the negligent failure of the defendant to observe the terms of rule 26 with respect to the protection of trains by blue light signals in its modified or partially abrogated form, as set out in detail in that count. The binding effect upon the defendant of the partial abrogation of rule 26 will again be adverted to in considering the case on the merits.”
The count charges'substantially that it was the direction and practice of the defendant, whenever an ’engine and train came into its yard, for its car inspectors and car repairers to forthwith go about inspecting and repairing the cars; that shortly after the arrival of the train the engine was uncoupled and taken to the company’s shops for repairs; that when the train in question came in the yard, it then became the duty of the plaintiff to do such repair work on the cars as he was directed to do, and, it being night, a blue light was placed at the rear end of the rear car of the train and a blue light on the front end of the car next to the engine and tender, and, when lights were so placed, the train of cars, under the rule, could not be moved without notice; that throughout plaintiff’s term of service he had been informed and instructed by the defendant that this was the true construction or the habitual practice of the company for the protection of trains, and that construction or practice had been observed and acted on during his entire service as car repairer, and the defendant during that time had taken no steps to require any other observance of the rule.
The foregoing allegations are followed by the specific *737averment that on the night of the accident the lights were placed by the defendant on the train in the manner described, and immediately thereafter the plaintiff received orders to go under one of the cars of the train and to replace a nut on a yoke bolt, and that while obeying that direction he received the injuries complained of.
It thus appears that in their essence the allegations of the count in no way involve the construction of rule No. 26, but, in substance, as the court in its opinion held, are the equivalent of a charge that rule No. 26 had been modified or partially abrogated by the defendant in the particulars mentioned. That fact having, in substance, been alleged, it is none the less an averment of a modification or partial abrogation of the rule because the pleader has elsewhere chosen to speak of the change as the construction of the rule habitually practiced and acquiesced in with the knowledge of the defendant. Moreover, the averment will not be overlooked that at the time of the accident a blue light was placed by the defendant on the front end of the foremost car of the train next to the tender and engine, and when so placed the plaintiff, in obedience to the defendant’s order,- went under the car and was injured.
2. The ground of demurrer to the fifth count of the second amended declaration is because no actionable negligence is set forth, nor the neglect of any duty lawfuly owing by the defendant to the plaintiff.
This point is pressed with so much confidence that it calls for special notice. We are told: “The gravamen of the count is that the hostler came to the engine and took it in charge, and when he went to the tender to uncouple if from the front car, found it could not be uncoupled without more slack; that the hostler, with knowledge of the inexperience of the fireman (who was still in the engine) in operating the engine, and with knowledge ‘that the fireman was without authority to operate said engine/ *738negligently directed Mm to reverse the engine, which operation the latter performed so unskillfully that the plaintiff was injured.”
The gist of the argument is that the fifth count does not allege that the hostler had any power, express or implied, to delegate the performance of his duties, and that without authority from the defendant he procured the assistance of another employee, the fireman, who was incompetent, and whose inefficiency caused the accident. Taylor v. B. & O. R. Co., 108 Va. 817, 62 S. E. 798, and Board of Trade v. Cralle, 109 Va. 246, 63 S. E. 995, 22 L. R. A. (N. S.) 297, 132 Am. St. Rep. 917, and outside authorities, are cited for the proposition that the master is not liable for the negligence of a person employed by his servant in the prosecution of his master’s business without authority, express or implied, to procure assistance. We shall notice these cases more in detail presently.
Let us, however, first consider whether or not the essential charges of the fifth count set forth actionable negligence or the neglect of any lawful duty owing by the defendant to the plaintiff.
The count charges that the plaintiff was employed by the defendant as a car repairer, and while so engaged it was the duty of the defendant to exercise reasonable care for his safety; that on the night of the accident it became the duty of the plaintiff to go under the front car of a freight train of the defendant to do repair work before the engine attached to the train had been uncoupled; that the place where he had to work was a place of danger if the car should be moved; that he went under the car to do repairs, exercising due care and caution, “knowing that the yard hostler, who had control of the said engine, knew, or ought to hare known, of his dangerous position. . . . The said yard hostler, whose duty it was to uncouple the engine and tender from said train and take charge of it, . . . took *739the same in charge and saw and knew, or ought to have seen and known, that the said plaintiff was at work under said car in a dangerous place, and when he went to uncouple the engine and tender from the front car, he found that it could not be uncoupled without more slack, and the engineer who had been in charge of the said .engine had left the engine, and the said hostler, who knew, or ought to have known, by the exercise of ordinary care, of the inexperience of the fireman, who was still on the engine, in operating, running and controlling an engine, and that the fireman was without authority to operate said engine, carelessly and negligently directed the fireman to reverse the engine and back it, and the said fireman unskillfully and negligently put on a full head of steam and reversed the engine with such force that it ran the whole train of cars . . . back some distance,” inflicting the injury of which the plaintiff complains.
The count is founded on the constitutional fellow-servant provision (section 162) and the enabling act passed in pursuance thereof. Va. Code, sec. 1294-k. -:
The Constitution declares that every employee of a railroad, engaged in work in or upon a car standing upon a track, “shall have the same right to recover for every injury suffered by him from the acts or omissions of any other employee or employees of the common master that a servant would have (at the time when this Constitution goes into effect) if such acts or omissions were those of the master himself in the performance of a non-assignable duty; provided, that the injury so suffered by such railroad employee result from the negligence . . . of a coemployee engaged in another department of labor . . or who is in charge of any . . . locomotive engine.” Va. & S. W. Ry. Co. v. Clowers’ Admx., 102 Va. 867, 47 S. E. 1003.
The charges in the fifth count are explicit that the rela*740tion of master and servant existed between the defendant and the plaintiff; that the plaintiff at the time of the accident was engaged in work on a car, and that the injury sustained was occasioned by the negligence of the hostler, a fellow-servant in charge of a locomotive engine. The case, therefore, comes within the terms of the Constitution, which declares that in such circumstances the injured employee shall have the sam’e right to recover for the acts or omissions of the hostler that he would have had at the time the Constitution went into effect if such acts or omissions had been those of the railroad itself in the performance of a non-assignable duty.
Independently, however, of the constitutional provision, the count states a good cause of action. The defendant owed the plaintiff the non-assignable duty of exercising ordinary care to furnish him a reasonably safe place in which to perform the work imposed upon him. And it devolved upon the yard hostler the duty of uncoupling the engine and tender from the car under which the plaintiff was doing repair work. The hostler negligently failed to discharge that duty, and as the result of such, failure the plaintiff sustained personal injuries.
The plaintiff had no power to prescribe the agency through which the defendant should fulfill the duty of protection it owed him, nor was he in any way responsible for the acts or omissions of such agency. The act or omission of the hostler for which the defendant is responsible was his neglect to use ordinary care to properly uncouple the engine and tender from the train, and the means adopted by him which resulted in such failure did not concern the plaintiff. In legal contemplation, the omission of the hostler to discharge his duty was the proximate cause of the injury as between the plaintiff and the defendant, and the negligence of the fireman was but a link in the chain of causation. The court does not seek to hold the *741defendant responsible for the negligence of the fireman, but for the dominant negligence of its alter ego, the yard hostler.
Bouvier in his Law Dictionary defines proximate cause as “that which in a natural and continuous sequence, unbroken by any new cause, produces an event, and without which the event would not have occurred.
“The proximate cause is that which is most proximate in the order of responsible causation. Butcher v. West Virginia & P. R. Co., 37 W. Va. 180, 16 S. E. 457, 18 L. R. A. 519; Luts v. Atlantic & Pac. R. Co., 6 N. M. 496, 30 Pac. 916, 16 L. R. A. 819. That which stands next in causation to the effect, not necessarily in time or space,' but in casual relation. Pullman Palace Car Co. v. Louck, 143 Ill. 242, 32 N. E. 285, 18 L. R. A. 215; Ins. Co. v. Boon, 95 U. S. 130, 24 L. Ed. 395.”
“'Gausa causantis causa est causati”—“the cause of the thing causing is the cause of the thing caused.”
In Aetna Ins. Co. v. Boon, 95 U. S. 117, 24 L. Ed. 395, Mr. Justice Strong, delivering the opinion of the court, says: “The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster.”
Again, the learned justice says: “The proximate cause, as we have seen, is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss.”
There is nothing in the two decisions of this court, cited in the petition for a rehearing, in conflict with the foregoing views.
*742In Taylor v. B. & O. R. Co., 108 Va. 817, 62 S. E. 798, the court held that “a mere request by a conductor of a freight train of an acquaintance to perform a casual service for his accommodation, which is responded to in the same sipirt of good-fellowship, without either promise or expectation of reward, does not constitute the person requested a servant of the railroad company, and it is not responsible for an injury inflicted on him in consequence of a defect in an appliance used by him while assisting the conductor. A volunteer cannot charge a railroad company with the duty of an employer.”
And in Board of Trade Co. v. Cralle, 109 Va. 246, 63 S. E. 995, 22 L. R. A. 297, 132 Am. St. Rep. 917, the court held that “the owner of a passenger elevator is not responsible for an injury inflicted on a passenger by the. negligence of an operator not employed directly or indirectly by the owner, but who was merely requested to operate the elevator for that trip by an Office boy’ of the owner, who had no power or authority, express or implied, to employ a servant for the owner. A master is liable for an injury inflicted on a third person by the acts or omissions of his servants while acting within the scope of their employment and in furtherance of it, but he is not liable as master where he does not occupy the relation of employer to the person whose neglignce occasioned the injury.”
3. The third ground for a rehearing was the refusal of the prayer of the defendant for instructions “B” and “0.”
Instruction “B” told the jury that if, upon the evidence, the plaintiff could have avoided the accident by waiting until the engine was uncoupled, he could not recover. Under the evidence this instruction was wholly unwarranted. The undisputed evidence was that the plaintiff went under the car in the proper discharge of his . duty as car repairer, and also in obedience to the express com*743maud of the car inspector, whose orders he had been specifically directed to obey.
Instruction “C,” that it was as much the plaintiff’s duty to take care of his own safety as the defendant’s, is substantially covered by another instruction which the court gave.
4. The last assignment goes to the quantum of damages awarded by the jury. Upon that proposition we shall content ourselves with the following summary taken from the brief of counsel for the plaintiff, which is fully sustained by the evidence:
“Swartz, when he was injured, was not twenty years of age, and was receiving between $65.00 and $70.00 a month. It was apparent that one so young, receiving wages at this rate, was in the line for promotion and increase of wages. He was injured on the 22nd day of April, 1910, and the verdict was brought in on the 5th day of July, 1912. Shortly before the trial, in June, 1911, he tried to work at light work in a cannery at $1.10 a day, and worked with great pain and suffering during that time, and at the end of three weeks could work no longer and stopped. Prom the time he was injured until the verdict, he had lost over $1,600 in wages, and had to be cared for and supported. It is reasonably sure that he will never be able to pursue the occupation of a railroad man. According to the tables of mortality in evidence, his expectancy of life was forty-two years, and if his loss, by reason of his injuries being of a permanent character, were estimated at $32 a month, less than half he was earning at the time he was injured, it would amount to $16,128.00.
“All the flesh was torn off his leg between the ankle and the knee, and the bones mashed and crushed up. The bones were wired up and set as well as they could be, and the flesh patched up with numerous pieces of flesh cut out of his thighs. He was then placed ‘flat of his back’ at the *744hospital and his leg hung up for weeks, and the ’evidence shows that he suffered agonies from the pain. He was confined in the hospital for seventeen months and had, during that time, six or seven different operations performed on his leg. At the time of the trial Ms leg was a running sore and a loathsome and horrible sight to behold. The appearance of his leg at the time could not be described. The jury, court, counsel and everyone else took one look and then turned away with a shudder.”
Upon these considerations the rehearing is denied.
Affirmed.