Opinion of the Court by
Judge Hobson —Reversing.
Logan Evans was a brakeman on a freight train in the service of the Cincinnati, New Orleans & Texas Pacific Railway Company. When the train reached a station called Flat Rock, the conductor was notified by the station agent to move a car which stood on the side track, and put it at another point for loading. There were 10 or 12 cars in front of this car. So, to do wha.t was wanted, they cut the engine off from the train, and went in with it on the side track and coupled to the cars. They then pulled out these cars, having the car they wanted to move at the rear, and backed it on the main track, where Evans cut off this car from the others; the plan being to put the other 10 cars back on the side track, and then to come back with the engine and get this car and put it at the place where it was needed. After Evans had cut off the car, the engine pulled up the main track with the *157other 10 cars beyond the switch, and the brakeman, who was still at the switch, turned it and signaled the engineer to back down on the side track. This he did, and when the cars were backed in on the side track, and reached the point where Evans was standing, he got up on the car farthest from the engine and was standing about the middle of the car, when a man named Williams, who was loading a car a little lower down, called to him not to let those cars bump against the car he was loading. At this Evans started to the brake at the rear end of the car, and, when he was within 10 or 15 feet of the brake, the engineer stopped the engine, giving the ear on which Evans was such a jerk that he was thrown over the end of the car, although he was 10 or 15 feet from it. He tried to' catch on the brake, but his hold broke, and he fell over the end of the car, and was run over and killed. This suit was filed by his administrator against the railroad company and the conductor of the train on the- ground that- his death was caused by their negligence. At the conclusion of the evidence for the plaintiff, the court instructed the jury to find a verdict for the conductor, and, the case being submitted as to the railroad company on all the evidence, the jury found a verdict against the railroad company for $7,500. From the judgment entered on the verdict, the railroad company appeals.
When the case was called for trial, the plaintiff’s attorney declined to make a statement to the jury of the facts which he expected to prove. The defendant’s attorney objected to this, and asked the court to require the plaintiff to make a statement. The court declined to do so, and the defendant excepted. Section 317 of the Civil Code of Practice is as follows: “When the jury has been sworn the trial shall *158proceed in the following order, unless the court, for special reasons, direct otherwise: (1) The plaintiff must briefly state his claim and the evidence which he expects to sustáin it. (2) The defendant must then briefly state his defense and the evidence he expects to offer in support of it. (3) The party on whom rests the burden of proof, in the whole action, must first produce his evidence; the adverse party will then produce his evidence. (4) The parties will then be confined to rebutting evidence, unless the court, for good reasons in furtherance of justice, permit them to offer evidence in chief. ’ ’
What statement of facts the plaintiff’s counsel will make is necessarily a matter for him to decide. He can make it more or less elaborate as he sees proper. Often in practice the statement is made by simply reading the petition to the jury or by stating the substance of it. The court will not usually control the brevity of the statement the counsel may make; jthat is, he may make it as brief as he pleases, and therefore the making of the statement is ordinarily a matter left entirely within the discretion of counsel. Our observation is that in practice the making of the statement is a matter to be determined by counsel, and that the section of the Code is regarded as prescribing the order of the proceeding, rather than as requiring a full statement of the facts to be made by counsel. At any rate, it is a matter resting in the sound discretion of the court, and we do not see how the defendant’s substantial rights were injured by the action of the court in refusing to require the counsel to make a statement of the facts which he expected to prove. It is provided in the section that the party on whom rests the burden of proof in the whole action must first produce his evidence. But manifestly if he de*159dined to introduce evidence, the court would not require him to do so. The purpose of the Code in providing that the parties should each state his case to the jury is to aid the jury in understanding the facts of the case. The court in its discretion might direct the counsel to make a statement or to make a more full statement when he deemed it necessary. But his discretion in a matter- of this sort will not he reviewed by this court unless abused.
The plaintiff introduced as a witness on the’ trial Fred C. Crouch, who said that he was sitting about 30 feet from the track and saw Evans thrown from the car and run over; that he at once went to the engine, reaching the engineer in about a minute, and told him he had killed one of his brakemen back there; that the engineer then said: ‘ ‘ That is the way whenever I get mad. I either hurt or kill somebody.” The defendants objected to this evidence, and moved the court to exclude it from the consideration of the jury. The court refused to exclude the evidence, and to this they excepted. In McLeod v. Ginther, 80 Ky. 399, 4 Ky. Law Rep. 276, there was a collision between two passenger trains. To the first man who met him the conductor of one of the trains said : “I had until 10:10 to make Beards.” The evidence was held competent. In L. & N. R. R.Co. v. Shaw, 53 S. W. 1048, 21 Ky. Law Rep. 1041, Shaw had fallen from a passenger train. A man near by heard his cries, and went to him. "What he then said to this man, the first person to reach him while the departing train was still in sight, veas held admissible as res gestas. In Brown v. Louisville R. R. Co.., 53 S. W. 1041, 21 Ky. Law Rep. 995, the declarations of the plaintiff at the place where she fell were admitted, but. her declarations while passing down the street on her way home were rejected. In *160Floyd v. Paducah R. R. Co., 64 S. W. 653, 23 Ky. Law Rep. 1077, the declarations of the motorman at the place of the collision just after the accident were admitted. In L. & N. R. R. Co. v. Molloy, 91 S. W. 685, 28 Ky. Law Rep. 1113, 122 Ky. 219, a passenger train struck a vehicle at a public crossing. What the driver of the vehicle said to the first man who got to him and who ran to him as soon as he could was allowed as res Gestas. In Rex v. Foster, 6 C. P. 325, a statement made by the deceased as to the cause of the accident as soon as he was picked up after he had .been run over was admitted as res geste. In Insurance Co. v. Mosley, 8 Wall (U. S.) 397, 19 L. Ed. 437, the deceased went down stairs, and, when he returned to his room, complained of his head hurting him, and said that he had fallen down the steps. The evidence was admitted as part of the res , geste. We do not see how this case can be distinguished from those cited. The statement of the engineer was in effect a declaration that he was mad, and that the jerk of the train which threw Evans off was due to this fact. It was not a bare expression of opinion, for the engineer was in charge of the engine, and the engine had given the jerk which threw Evans off. The thing that he was explaining was how he came to give the train such a jerk. It is earnestly insisted that the evidence is wholly incredible, but the credibility of the witnesses is for the jury. If the evidence was competent, it was uroperly admitted.
At the conclusion of the evidence for the plaintiff, the conductor, John Bowman, -moved the court to instruct the jury to find for him. The court sustained the motion, and, when this had been done, the railroad company filed its petition and moved the court to transfer the case to the circuit court of the United *161States. The court overruled the motion on the ground that it came too late. The act of Congress provides that the motion may be made in the State court “at the time or at any time before” the defendant is required to answer. The defendant had filed its answer at the previous term, and, by not making the motion then to transfer the case to the United States court, had waived its right to such transfer. Although the conductor' was made a defendant, the railroad company might then have filed its petition, and, if it appeared later that there was no reasonable ground for uniting the conductor in the suit, the court would have ordered the action transferred. But the defendant can not answer without objection and go through a large part of the trial, and then for the first time make a motion of this sort. The case of Whitcombe v. Smithson, 175 U. S. 635, 20 Sup. Ct. 248, 44 L. Ed. 303, is conclusive oh this point. The conductor was evidently joined as a defendant on the ground that Evans would not have been hurt if the engine had been cut oif from the cars before it was started back, and that the conductor should have done this. But the proof on the trial showed that the conductor had simply told the brakeman what to do, and that he was taking no part in the movement of the train. There was a failure of proof as to the conductor, but the railroad company should have made its motion to transfer the case at the proper time. In that way it would have preserved its rights. Dudley v. I. C. R. R. Co., 96 S. W. 835, 29 Ky. Law Rep. 1029; Underwood v. I. C. R. R. Co., 103 S. W. 322, 31 Ky. Law Rep. 595. But it could not without objection to the jurisdiction of the State court file answer to the merits, and, after obtaining the judgment of that court on all the questions arising in the case down to the *162close of the plaintiff’s testimony, then ask the removal of the case to another conrt that it might there relitigate all the questions on which the judgment of the State court had been unfavorable to it. If the objections to the testimony which were made by the defendant had all' been sustained, little would have been left of the plaintiff’s case. Without asking a removal from tire State court, it went to trial in that court, and attempted to win its case there. When the rulings of the court were unfavorable to it, it could not withdraw the appearance it had entered unequivocally, and ask a removal of the case to the United States court to retry these matters there. When the motion to remove the case to the circuit court of the United States was overruled, the railroad company moved the court to instruct the jury peremptorily to find for it. This motion was properly overruled by the circuit court, as there was evidence tending to show that Evans while in the discharge of his duty on the top of the car was by a sudden jefk of the train thrown 10 or 15 feet and over the end of the car, that such a jerk is unusual, and that there was nothing in the situation to require any such handling of the train by the engineer. After its motion for a peremptory instruction was overruled, the defendant introduced its evidence which tended to show that there was no unusual jerk of the train; that the movements of the train were directed by the head brakeman, who was the fellow-servant of Evans.; that the train was stopped in obedience to his signals and when the engineer did not know that Evans was on it. There was evidence also tending to show that Evans was under the impression that the engine had been cut loose from the cars, and that the cars were simply being kicked in by the engine; that he was under the impres*163sion that the ears would run until he stopped them, with the brake, and that he was not on the lookout for the engine to stop them; that there is always more or less slack in a train; and that, when the slack is taken up, there is more or less jerk in the cars farthest from the engine. At the conclusion of the evidence the defendant renewed its motion for a peremptory instruction, and then called the court’s attention to the fact that the plaintiff’s petition contained no prayer for relief. The petition showed that the estate of the deceased was damaged in the sum of $20,000. It then concluded with these words: “For all proper and general relief. ” No objection had been made to the petition on the ground that it did not contain a prayer for relief. The reply contained a sufficient prayer. As defense had been made and the proof had been heard, it might well be argued under section 90 of the Civil Code of Practice that the omission in the petition was not material. But it is not necessary for us to determine this question. The court allowed the plaintiff to file an amended petition in which he prayed judgment for $20,000. In this there was no error. The amended petition corrected what was apparently a clerical error in the petition, made, perhaps, by the copyist. It was not in any sense a material change. The cause of action was the same before it was filed as after. After the amended petition was filed, the defendant renewed its motion to remove the case to the circuit court of the United States. This motion was properly overruled, as the amended petition in no way affected the appearance which the defendant had entered to the action.
The court instructed the jury, in substance, that, if Evans’ death was caused by the gross negligence of the engineer, they should find for the plaintiff, pro*164vided Evans was at the time in the performance of his duty as brakeman, and exercising ordinary care for his own safety. In requiring gross negligence on the part of the engineer the court was in error. Where a person does not die and sues to recover on account of the negligence of his superior servant who is engaged in the work with him, under the rule laid down in this State, gross negligence must be shown. But this action was brought to recover for the death of Evans under the statute, and the statute authorizes a recovery for negligence, although it may not be gross. Ky. Stats., 1903, section 6; I. C. R. R. Co. v. Coleman, 59 S. W. 13, 22 Ky. Law Rep. 878; Southern Railway Co. v. Otis, 78 S. W. 480, 25 Ky. Law Rep. 1686; Cincinnati R. R. Co. v. Cook, 113 Ky. 167, 24 Ky. Law Rep. 2152, 67 S. W. 383. In this respect the instructions are more favorable to the railroad company than they should have been. But the instructions are subject to this objection: That they submit both the law and the facts to the jury. The law of the case is to be determined by the court. The jury are simply to find the facts. The instructions of the court here fail to inform the jury what the law of the case is. In lieu of instructions 1, 3, 4, A and B, given, the court should by its instruction in substance have laid down to the jury these propositions: (1) If the engineer negligently gave the cars a jerk which was unusual, unnecessary, and so violent as to show a want of ordinary care on his part for the, safety of the brakeman in charge of the train or on it, and by reason of this this Evans, while in the performance of his duty as brakeman and exercising ordinary care for his own safety, was thrown from the car and run over and killed, they should find for the plaintiff. (2) .Ordinary care is such care as a person of ordinary prudence *165usually exercise under like circumstances. Negligence is the want of such care. (3) If the engineer received a signal from the head hrakeman to stop the train and in obedience to this signal, and as required by it he stopped the train in the usual manner where such a signal was given, or if Evans-was under .the impression that the engine had been cut off from the cars, and the accident- to him was due to this misunderstanding on his part, and not to the negligence of the engineer as defined in No. 1, or if he was not on the car in the performance -of his duty as brakeman, then, in any of these events, the jury should find for the defendant. (4) Evans, when he entered the service of the railroad company as a brakeman, assumed! all the risks of the employment as usually conducted, including the negligence of his fellow brakeman and such jerks of the cars as resulted from the taking up of the slack in the movements of the cars made with ordinary care by the engineer. The instructions given on the trial do not sufficiently present the defendant’s side of the case. The defendant is not liable to Evans for the negligence of his fellow brakeman; and, if the stop was made at his direction and as required by him, the plaintiff can not recover. So, too, if Evans thought the engine had been cut off from the cars, and, acting under this mistake, was off his guard and thus brought about the accident, there can be no recovery; for the engineer was in no wise responsible for this, and it is only for his negligence that the plaintiff may recover, as there was no negligence on the part of the conductor.
Judgment reversed, and cause remanded for a new trial.