On Rehearing.
Nicholls, C. J.A rehearing was granted in this- ease for the reason that in examining the testimony scattered through three different transcripts, a portion of the same had escaped the court’s attention. The statement made by the court that Beardsley, the manager of the defendant company, was on the train at the time- of the aeci■dent, and that he had not testified in the case, was- erroneous. The *1140Beardsley who was on the train was the son of the manager, or superintendent, and not the superintendent himself, and he was placed upon the stand and positively denied having given the orders to increase the speed of the train, to the giving of which orders several of defendant’s witnesses testified.
The engineer, to whom the order was declared to have been given, made a similar denial.
The testimony in the case is utterly irreconcilable.
We do not know the witnesses, nor did we have the advantage- of seeing them upon the stand.
Two juries have returned verdicts in plaintiff’s favor.
The first verdict was set aside by the district judge, and plaintiff's counsel calls our attention to the fact, that while declining to set the second one aside on motion for a new trial, the judge expressed, very strongly, his disapprobation of the result reached, stating that lie was more convinced than ever that plaintiff had no right to a judgment. That is true, but the judge’s remarks seem to refer more to-what he seems to have considered the.law applicable to the case than to the facts.
He was of the opinion that although the track was out of order, yet the particular train to which the accident happened was a “repair train”; that plaintiff knew the condition of the track, and the dangerous character of the duty in which he was engaged, and therefore-assumed the risk of the dangerous service.
He did say that he did not think the accident was occasioned by the bad condition of the track.
We are inclined, ourselves, to think that the latter fact, standing by itself and independently of the falling off from the tender of the-piece of wood which the testimony shows did so fall off, would not have caused the derailment of the train, even at the rate at which it was going.
That the aec-ident was occasioned by the concurrence of three fac-ts-
—the bad condition of the track, the speed of the cars ,and the particular manner in which the wood was placed on the tender.
W© did not think the wood, as placed, would have fallen from the-tender simply as the result of the speed of the train, had the track been in good condition, ñor that it would have fallen even with the track in the condition in which it was, had the speed been regulated so-as to conform to what was required by the entire actual situation.
*1141We thought that the wood was n,ot placed on the tender in the manner in which it should have been placed there, to meet the requirements of a rapidly running train over a bad track.
That as it was, rapid running over a bad track had caused some of .the wood in the tender, which had not been placed there in the manner to meet such a condition of things, to gradually work its way to the back of the tender, and to fall out, and by falling out to pass under the wheels of the car, and derail the train.
One of the difficulties in the ease was that the wood, as placed in the tender, was placed there by the plaintiff himself, and the other parties who-were working as laborer's ir repairing the track, in putting ties on the train, and, incidentally, in placing the wood in the tender.
We were of opinion that these men, however, could not have known in advance that the train would be run as it was afterwards probably run, and, besides this, the fireman, Sol Sephus, testified that after it .was placed in the tender he had himself, to some extent, straightened it out.
Our judgment proceeded upon the theory that it was the duty of the party who controlled the train to have advised himself, beforé it started, not only as to one part of the existing situation, but of the whole, and to have governed himself thereafter accordingly, and that while it was true that this train was a “repair train,” and the parties thereon may have assumed, in accepting the employment, that they might be in greater danger of accident than they would have been under other circumstances, they had the right also to assume that this very fact being known to the conductor, he would guide his conduct so as to minimize the dangers by the increased precautions, and the care which the occasion called for.
We did not think that the conductor, as' representing the defendant company, had afforded to its employees the full measure of protection to which they were entitled.
We are of the opinion, and are still of the opinion, that a railroad company which permits its tracks to become unsafe, should be held to an increased responsibility for the manner in which its trains should be run over such-a track.
The direct contradiction of the witnesses of the parties as to most important facts brought especially to our attention in our last examination of the transcripts in the case, coupled with the disagreement 'between two juries, and the district judge, have caused us to hold this *1142cause under advisement a longer tipie than is usual, for the reason that we have been in great doubt as to what the proper course would, be to pursue under the circumstandes.
After a most careful consideration of this case as presented to us,, we adhere to our original judgment, except as to amount. We are of the opinion that the amount for which we have rendered judgment in favor of the plaintiff, against the defendant, is too large, and it is hereby reduced from fifteen hundred to one thousand dollars. As so amended, our original judgment must remain undisturbed, and it is-so ordered.
Mr. Justice Monroe taires no part, as the case was submitted previous to his appointment to this court.