delivered the opinion of the court.
This is a writ of error to a judgment of the .circuit court of Dinwiddie county, rendered at the April term, 1885. The action was trespass on the case for the killing of Washington Jackson, against the plaintiff in error, the Norfolk & Western Railroad Company, brought by the defendant in error, J. P. Robertson, personal representative of said Jackson, who was a brakeman on the said road and was killed while engaged in shifting cars by the use of what is called a “push-pole.” The deceased was furnished by the railroad company with a pole, which was carried along with the engine, to place against the car to be moved on the side track, while the other end was to be held up by him, so as to be pushed by the tender of the on-coming engine, which came along slowly on a signal from him, when the push-pole came in contact with the tender, the engine moving, tender in front, the pole fastened somewhat by the contact, but slipped, and caught on the framing of the tender, and broke, and the tender, still moving, passed over the body of the deceased, who was thrown down in its front by the jerk of the push-pole as it gave way.
At the trial the declaration was demurred to, but the demurrer was overruled, and the defendant company excepted. The demurrer was on the ground that the accident vras stated to have happened at or near Wilson’s depot, and that the locomotive and tender, or one of them, ran against the deceased, and that the first count is faulty for duplicity in pleading ; that while the declaration charged that the defendant company did not provide suitable, convenient, and safe appliances, for his use, it failed to allege that the defendant company did not use “due, reasonable, and ordinary care” to provide proper machinery, etc. The charge of negligence in the declaration is distinctly made, and the declaration is without fault or imperfection in any respect, and the demurrer was properly overruled.
*682It is well settled that it is the duty of the railroad company, using the dangerous agency of steam, to exercise all reasonable care to provide and maintain safe, sound, and suitable machinery, roadway, structures, and instrumentalities ; and the employee has the right to presume that the company has discharged these duties. His contract with the company is based on the duty and the implied understanding of the company to provide safe and adequate machinery, competent and vigilant agents. Clark’s Adm’r v. Railroad Co., 78 Va. 717; Moon’s Adm’r v. Railroad Co., Id. 752; Railroad Co. v. McKenzie, 81 Va. 71; Hough v. Railroad Co., 100 U. S. 217; Railroad Co. v. McDaniels, 107 U. S. 459, 2 Sup. Ct. Rep. 935; Railroad Co. v. Ross, 112 U. S. 383, 5 Sup. Ct. Rep. 184; Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. Rep. 590. Applying these principles, which are well settled and familiar, we find that in this case the evidence discloses that the pieces of timber, once used for this purpose of pushing from one track across to another, had been supplanted by a push-pole provided by the company, and carried along with their other implements and utensils'; that they were required to be of good, strong, and straight timber, — sometimes being required to put in motion cars weighing 60,000 pounds ; and, to keep them from slipping under this enormous pressure, iron cups or sockets were screwed onto the engine or cars to receive them, the pressure being never direct, but always at an angle; while in this case the wood used to make the push-pole in question was cross-grained and wind-shriveled and knotty, and close to a knot a hole was bored,' and a pin put through, and a cuff put in. The material was unsuitable ; and, by the exercise of ordinary care on the part of the company’s agent, it would have been rejected ; and the manipulation of it, stated above, was negligent; and the tender was not provided with any socket or other appliance to hold the pole in *683place, and by this neglect the pole slipped, and caused the accident.
It is insisted that the deceased contributed to his own injury, by holding onto the push-pole after it began to slip ; but this was involuntary and unavoidable, and the evidence shows that the deceased, who was an old hand and very experienced in the business, never lost his head at all, but made most remarkable and almost successful efforts to retrieve the accident and save himself. The jerk upon him when the pole broke was so sudden and violent that he could not recover himself. I think it is clear that the accident was caused by the two concurring acts of negligence of the company — First, in providing an unsuitable and insufficient push-pole ; * and, secondly, in failing to provide a socket or some suitable receptacle for the end of the push-pole ; and that the deceased was thus thrown into a position from which he was unable to extricate himself by any diligence within his power ; and that there was no error in the judgment of the circuit court in this case, and the same must be affirmed.
Eichardson, J., absent.