*1134The opinion of the court was delivered by
Nicjholls, O. J.Plaintiff asked for a judgment against the defendant for damages for injuries received by him through the derailment of a car operated by officers and employees of the defendant ■company, on which car he was riding at the time. He averred that he was an employee of said company at the time and on said car in the discharge of his duty as such. That the accident was caused by the negligence and carelessness of the parties in charge. The case was tried by the court, which rendered judgment in favor of the -defendant. Plaintiff appealed, and on appeal the judgment was al.tered to one of non-suit. The pleadings and facts of the case were identical with those of Smith against the same company, reported in 49th Ann., 1325 — the case itself is reported in the same volume, page 1330.
Plaintiff renewed his demand in the present suit. Defen da rj pleaded the general issue.
After defendant had answered pleading the general issue, defend.ant filed a plea of estoppel, alleging that plaintiff had instituted suit .against it for the identical cause of action in which he set up -.the cause of the injury — that he could not change the judicial admission of his first suit; that he could not add to nor take from the same so as to show a different cause for the injury. *
This exception was based upon the claim that the allegations of plaintiff in his second were inconsistent with those in his first suit, .and sought to change the issues between the parties.
Plaintiff’s allegations in his first petition, touching the accident, -were as follows: ' •
“That said derailment and injuries and loss were occasioned by the gross, wanton and criminal negligence of said railroad company and its servants, agents and employees who were superior in authority •to plaintiff. That at said time and place said train and car on which plaintiff was riding was thrown from the track by one or more pieces •of timber or wood falling or being carelessly dropped by the employees from the engine tender or bin, or other places of storing for carrying wood or timber on said train or locomotive or some of the attachments thereto, which caught under the wheel or wheels of said train of cars or locomotive, or both, which derailed and threw said car on which petitioner was riding and all or a part of the train, in-•eluding locomotive and tender, from the track, and in the wreck he *1135was damaged by the fall and being' struck by falling timbers and •cross ties and the car or cars and other parts of the train or locomotive or tender and other causes occasioned by said wreck. That die wreck and damage to petitioner was caused by. the said defendant company failing to provide proper and safe places or apartments for storing or carrying said wood or timber and from the failure of said company and its employees who were in command of the train to have .said wood or timber properly loaded or stored, and from the careless and negligent handling of said wood and timber by the employees and servants of said company, and which wood or timber, fell from the place where it was stored or piled or by the servants or employees of said company’s careless and negligent handling of said wood or timber while said train was running or in motion. That it was no part, of petitioner's duty to superintend the loading of said wood or timber, and that said injury and loss was caused by no negligence or fault ■of his, but wholly by the negligence and fault of the defendant company or its servants and employees in charge of the train, or for the want of necessary appliances for the safety of the employees of the company.
In plaintiff’s second petition he averred that at said time and place said ear on which petitioner was riding was thrown from the track by a piece of timber or wood falling from the tender or usual place of •carrying wood on said train, locomotive or attachments thereto, which caught under the tracks or wheels and axles of said car on which petitioner and others were riding which derailed said car — which car after running off the rails on to the road bed and rotten ties, ran on to or struck a rotten bridge or trestle of said company, which gave way and precipitated petitioner and others and said car and cross ties to the ground a distance of about twelve feet. That at the time of said wreck said train was being run at a high and dangerous rate of speed ■over a dangerous and unsafe track with rotten cross ties, and the rails on said tracks were low and sunken in places and high in other places, and the cross ties and road bed, together with the unsafe condition of the rails and the great and dangerous rate of speed caused violent rocking, jumping and shaking of said locomotive, tender and cars. That the defendant company did not provide safe and proper apartments for storing and carrying said wood, and said company and its agents and employees who were in command of petitioner caused -said fire wood to be improperly loaded and carelessly and negligently *1136piled, at least, three feet above the outer wall or rim of said tender or wood bin without there being any guard or other protection to prevent said wood or timber from failing' over the outer wall or rim of said wood bin or tender, and that said wreck was caused by the fall of said wood or timber and the above alleged reckless running and defective road bed, etc., etc.
That it was no part of petitioner’s duty to superintend the loading or storing of said wood or timber, or to control the rate of speed, or to examine or repair the track, road bed, or anything in connection therewith, and his only duties were to obey bis superiors in command, he being a common laborer and having- no dominion or control over any part of said train or road bed, or anything connected therewith other than as a common laborer,' and that the said injury and loss was caused by no negligence or fault of his, hut wholly by the fault of the defendant company and its agents and vice principals in charge of said train, and for want of necessary appliances for the safety of the employees of said company, and the defective road bed and track and reckless running, etc., etc., as above stated.
In defendant’s plea of estoppel, it asked that all allegations of plaintiff’s petition, which were different from, or changed, the allegations and judicial admissions in the suit first filed, be stricken out, and that no evidence be permitted to. be received under the same.
No separate action was taken upon this exception. The case was tried twice before a jury. The first trial resulted in a verdict of five thousand dollars for the plaintiff, but the verdict was set aside and a new trial granted.
The second trial resulted in a verdict of twenty five hundred dollars for plaintiff, and judgment was rendered in accordance therewith, though the court, in refusing an application to have the verdict set aside and a new trial ordered, expressed its disapproval of the verdict, assigning as its reason for entering judgment that it .thought the litigation should he brought to an end.
The first suit of the plaintiff against the defendant was by consent of parties, taken up at the same time with that of Smith vs. The La. & N. W. R. R. Co., and upon the same testimony, except in so far as testimony as to the extent of injuries received by each and the amount of the damage claimed by each, made special testimony necessary.
In the opinion in the Smith case (49th Ann., 1328) the court said: “As the case was left by the witnesses it seems clear that the piece of *1137wood was the proximate cause of the accident, but without showing directly that the stick of wood was on the track'through the fault of the defendant, its servants or agents, the company is not connected with the proximate cause so as to make it responsible. The break in the continuity of the testimony is in the manner in which the stick, occasioned the derailing of the train, and by whose fault it was placed in position to produce the same.”
It was in view of the possibility of plaintiff’s being able in a second suit to supply this missing link that the judgment, originally a final one against him, was altered to one of non-suit.
The testimony taken upon the first trial was considered in the second, both sides introducing additional evidence. Plaintiff introduced two new witnesses whose, testimony was to the effect that, at the time of the accident, they were riding upon a flat car directly in rear of the tender on which the fire wood for the train was piled up; that as they were sitting, they faced the tender; that directly in front of and facing one of them, a man by the name of Crawford was sitting on the rear end of the tender. Each one of them testified to having seen the piece of wood which the pleadings .refer to, fall from the rear end of the tender to the track between the tender and the flat ear just behind, and upon which they were sitting; that, immediately after-wards, there was a violent jerking of the cars, followed by the derailment of the same. Neither saw the piece of wood strike the ground, nor knew how or where it came in contact with the cars. Both say that Crawford did not touch the wood, or have anything to do with its' fall. They differ somewhat as to the point from which it fell; one stating it fell from a point near the eastern side of the tender, the other, from the western side, but, we think, the establishment of the particular point from which it fell an immaterial fact, except in so-far as it might tend to effect the credibility of those witnesses. We-do not understand defendant to attach any importance to it, other' than for that purpose.
The character of those two witnesses was not impeached. The effect of their respective statements is weakened only in se far as the fact that they were not in accord as to the point from which the stick of wood fell, might be calculated to throw doubt upon their accuracy— if that fact were important — Crawford was not put upon the stand.
From whatever side the piece of wood fell, it obviously struck m *1138such a manner as to occasion, as the immediate and direct result of its falling, the derailment of the cars.
The question is, how came it to fall! Plaintiff, in his pleadings, says the wood upon the tender was piled three feet high upon a tender and left there without guards, while defendant undertook to show that it was only two feet high at the middle, and that the fireman straightened it out after it had been placed upon the tender. There is very considerable difference in the testimony as to the rate of speed at which the train was running at the time of the accident. It is claimed by plaintiff that the train being behind time in consequence of. having had to taire on a quantity of cross-ties, was being hurried forward in order to reach Athens before the passenger train, coming from Homer, should reach that place. One of the witnesses said that Mr. Beardsley, the manager of the road, hurried the conductor, giving him (he said) the “high ball” (orders to go faster) several times. Mr. Beardsley, though on the train at the time, did not take the stand as , a witness. The testimony, we think, shows that the road-bed, the ties, . and the track, were in very bad condition at the point where the aeci- . dent occurred, and for some distance in front and- in the rear of that place. We are satisfied that the stick of wood was detached from its position by the rocking of the cars, caused by rapidly running nars over the uneven and defective road-bed and track at that point. We are also satisfied that the immediate cause of the derailing of the cars was the falling of this piece of wood, and its being caught under the wheels or trucks of one of the cars. It is contended that the plaintiff was one of the parties who loaded the tender. That he went on the train voluntarily as an employee of the corporation, with knowledge of the situation and condition of the road (if, in fact, it was in bad condition),- and that in accepting service he assumed the risks of employment taken under such conditions. Employees entering the service of a railroad company have a right to assume, should it fail to comply with its duty of keeping its road-bed, ties, and track throughout, in ¡safe condition, that it will at least meet and compensate its failure in this respect, by steps taken by it and those having charge of its trains, to remedy and save the situation from danger for the benefit of its passengers and employees by a special care taken and precaution -resorted to in the running of the trains themselves over dangerous places.
We do not think that employees, by accepting service with a badly *1139equipped railroad corporation, accept as a matter of course, the double risk of insufficient and bad tracks, and careless and negligent handling of cars over dangerous places. Two juries have found the facts of the case in favor of the plaintiff, and we see no good reason for holding them to have been in error in their conclusions. We see no questions of law standing in opposition to an affirmance of the judgment on the facts so found, though we are of the opinion that the amount found as damages is too high. No action was taken in the lower court upon defendant’s plea of estoppel. It is insisted that the exception was well founded. We do not think so. It is rarely possible for a person injured by the derailment of a car to know with certainty .to what particular cause it was attributable. In cases of that character a plaintiff’s pleadings are made usually as general as safety will permit them to- be made, so as to enable him to take advantage of the facts which may develop on the trial. He may sometimes, by too-minute particularity, be held down on a first trial to specific allegations as then existing, but, if on plaintiff’s demand, being met by a genera] denial, the case should terminate in a judgment of non-suit, plaintiff would have the right in drafting a second petition to avail himself of knowledge of the actual facts of the ■case as made known to him through the testimony taken on the first trial. The allegations made in the first case as to the facts of the occurrence could certainly not be classed as “admissions” made by him from which he could not recede. In the case at bar, plaintiff insists still that the falling of the stick of wood was the direct, immediate, cause of the derailment of the car on which he was riding — he simply adds thereto certain other facts as concurring contributing causes.
We think the judgment should be amended by reducing the amount •of the damages accorded to the plaintiff by the verdict and judgment from twenty-five hundred dollars to fifteen hundred dollars, and it is hereby so ordered and decreed.