The opinion of the court was delivered by
■JohNstoN, J.:William H. Rowan came to his death on August 24, 1889, while discharging his duties as a *280brakeman on a freight-train of the railroad company. It is conceded that he was knocked from the top of a freight-car by the overhead timbers of a railroad bridge located near Peabody, and that his death resulted* almost instantly from the collision. He entered the service of the company in October, 1887, and continued in that service as brakeman or extra conductor the greater part of the time until his death. For more than a year before he was killed he made frequent trips between Emporia and Nickerson, and the low bridge with which he collided is between these points. The space between the top of the rail and the under side of the overhead timbers of the bridge was 18 feet and one-quarter of an inch, and was sufficient so that a man standing erect on top of the ordinary freight-car in use could pass in safety. The standard box car owned and used by the company was 11 feet from the top of the rail to the top of the running-board, and the palace stock-cars, many of which were used, were 12 feet high, while the furniture-cars, which had been recently introduced and which were occasionally used, were 13 feet and Hi inches high. Rowan, who was about five feet high, could stand erect upon ' the standard or stock-cars and pass through the low bridge with safety, but it was not of sufficient height to permit him to pass under it while standing on the top of a furniture-car. A rule of the company provided that every brakeman must be on the top of his train in passing stations or railroad crossings, and as the train was approaching the 'station at Peabody, Rowan was properly upon the top of the train when he was killed. A considerable number of the high furniture-cars had been in use on the road of the company for more than a year before Rowan’s death occurred, and in fact he -had been a *281brakeman or conductor upon at least 60 freight-trains in which there was one or more of these high furniture-cars. During the time that he was employed by the company on the main line between Emporia and Nickerson he had been over this bridge practically at all times of day and night, and between these points there were two other bridges of the same height. The morning of the casualty was bright and clear, and as the train approached the station and the bridge, Rowan, the head brakeman, who was sitting on the top of a stock-car, arose and walked back over that car, and as he stepped upon the next, which was a furniture-car, the back of his head came in contact with the top of the bridge and he was knocked down and killed.
It is contended, first, that the company was free from negligence in maintaining the low bridge and in using high cars which pass over it; and, second, that under the facts of the case, Rowan had opportunity to observe the height of the bridge, and to know that it wo.uld be dangerous to pass under the same -while standing upon a furniture-car, and that he must be deemed to have had knowledge of the danger and to have assumed the risk, and was, therefore, guilty of contributory negligence in not looking when approaching the bridge, and in placing himself in a position of manifest danger.
*282L Mlcteefa unsafe for brakemen; negligence; whenSaiie. *281It was the duty of the railroad company to construct and maintain its road and the bridges thereon in such a manner and condition that its employees might perform all the labor and duties required of them with reasonable safety, and a person entering the service of the company has a right to assume that this obligation has been discharged. It must be regarded as the set-, tied law of this state that the maintenance of a bridge, *282such as the one in question, so low as to make ib unsafe for the trainmen to perform the duties required of them, is prima facie negligence, n , . , , n and where mi urv results to an employee o ±. j from such cause the company is held liable, unless the injured employee is chargeable with contributory negligence, or with the assumption of the risks of such danger. (Railroad Co. v. Irwin, 87 Kas. 701.) Can it be said, as a matter of law, that the risk was assumed by Rowan, or that the injury was the result of his own contributory fault? It is true that he assumed the ordinary hazards that necessarily accompany his employment, and of any unusual risks of which he had been warned or had knowledge. It is contended that, as Rowan had frequently passed under this bridge and two others of the same height, be knew, or should have known, that the bridge was too low to permit him to stand upon the top of furniture-cars while passing through or under the bridge. It is insisted that but one inference can reasonably be drawn from the testimony, and therefore that the court should declare as a matter of law that no recovery can be had in the case. We are of opinion that the testimony was sufficient to send the case to the jury, and that it cannot be said that the findings of fact do not justify a recovery. When the injury and the fault of the company had been proved, the burden of showing that Rowan had knowledge of the risk, or that he failed to exercise ordinary care in the matter, rested upon the company. In the absence of evidence to the contrary, it will be presumed that Rowan was free from contributory negligence, as it is held “that a jury may infer ordinary care and diligence on the part of an injured person from the love of life or the instinct of self-preservation and the known disposition of men to *283avoid injury.” (Dewald v. Railroad Co., 44 Kas. 591.) As we have seen, the cars were of unequal height; those longest in use'were the lowest, and Rowan could safely pass through the low bridge while standing on top of such cars. The high cars have recently been brought into use, and it is not shown by any direct testimony that the attention of Rowan was ever called to the danger of riding through the low bridge on top of these. No telltales or cautionary signals were placed near to nor on the bridge in either daytime or night-time to warn trainmen of their approach to the bridge and to danger. It does not appear that there was any change of the rules regulating the conduct of the men when the high cars were introduced, nor that notice of any kind was given to Rowan that the space between the top of these high cars and the overhead timbers of the low bridge was insufficient to permit him to pass over the top of the cars in the discharge of his duties, as he had heretofore done. There is nothing to show that Rowan had ever been upon the top of the high cars in any position while passing under the low bridges, and nothing to indicate that his attention was drawn to the proximity of the high cars to the bridge-with which he collided. It is true, that where dangers are obvious and can be readily observed by anyone by the exercise of ordinary care and prudence in the use of his senses, a specific notice is not in all cases essential to defeat a recovery; but the testimony in this case does not convince us that we should say as a matter of law that Rowan was chargeable with a knowledge of the peril, and that his failure to take the necessary steps to avoid the injury is a bar to any recovery. It does not appear that the danger was actually known to him, and the testimony given shows that it is not easy to determine from the top of *284a moving train the space between the train and the top of a bridge. In Railroad Co. v. Irwin, 37 Kas. 711, it was said that —
‘ ‘ Men of experience say that it is a very difficult matter to tell exactly how high an object is above a moving train. The smoke of the engine and the swaying motion of the cars render it hard, to see and comprehend the proximity of the overhead timbers of. a bridge, and this is very well shown by the widely-differing statements of the witnesses respecting the height of the braces in question.”
*285~ oonMbu^ry jufstfoSio’r *284The brakeman who accompanied Rowan, and who was the principal witness in the case, testified that he had been over that run for more than a year, and yet he was unable to state the distance between the ordinary freight-car and the top of the bridge, or whether he could ride on top of the train without coming in contact with the timbers of the bridge. In response to another question, he did state that from his observation it would be hazardous to undertake to ride on the top of a furniture-car, but that he had ridden with the deceased over the line so frequently without carefully observing the intervening space only tends to show that Rowan may never have observed the proximity of the top of the bridge, nor appreciated the peril there was in riding upon the top of the furniture-car. If any notice- or warning had been given that there was danger in riding on the top of furniture-cars, or if all the cars had been of the same height so that Rowan must have known that he could not stand erect while passing under the bridge, there would be ground for the contention of the company that the risk of the danger from the low bridge had been assumed, and the negligence of the company in that respect had been waived. It appears, however, that there were four grades of cars used of different heights, and it *285can be readily seen that the difference in height of- the several cars would easily deceive a trainman whose only information was derived by observation from the top of a swiftly-moving train. As Rowan was killed instantly, no direct testimony as to his knowledge can be obtained, and information on that point must be looked for elsewhere. While he had ridden over this section of the road for a year or more, no one has been produced to show that he liad ever ridden upon one of the high cars, nor that his attention was ever called by anyone to the risk of so doing. The jury found that he was not familiar with the furniture-cars ; also, that he was proceeding in the discharge of his duties when he was killed, and there are also findings which tend to show that he did not realize that he was approaching the bridge in question when he was killed, or comprehend the danger from riding on top of the furniture-car. So far as the testimony goes, he was not informed of the danger when the high cars were introduced ; no change of rules relating thereto was promulgated by the company; no warnings were given or signals placed on or near the bridge ; he had no actual knowledge of the risk ; and, as it is one which is not easily observed from the top of a moving train, the question of whether he was guilty of contributory negligence in not ascertaining by. measurement or accurate observation whether he could pass safely under the overhead timbers of the bridge while standing erect on the furniture-car is a question of fact rather than of law, the determination of which is necessarily for the jury. (Railroad Co. v. Irwin, 37 Kas. 701; Railroad Co. v. Mortonson, 63 Fed. Rep. 530. See, also, Osage City v. Brown, 27 Kas. 74; Railroad Co. v. McCandliss, 33 id. 366 ; Railway Co. v. *286Neiswanger, 41 id. 621; Dewald v. Railroad Co., 44 id. 586 ; Darling v. Railroad Co., 24 Atl. Rep.462 ; Stirk v. Railroad Co., 79 Ga. 495; Beach., Cont. Neg., §§448-451; 16 Am. & Eng. Encyc. of Law,' 465.)
Complaint is also made of the refusal of certain instructions requested by the railroad company, but an examination of the record satisfies us that those which were pertinent and important were embraced in the general instructions of the court, and that the case was fairly presented to the jury by the charge that was given.
It is also claimed that the court committed error in failing to require the jury to give a more specific and definite answer to the 96th question that was submitted to the jury. As will be seen, the question is very 'general and complex in its character, and for that reason it might have been refused in the first instance. Another objection to the question is that it omits the element of any knowledge of the risk by the employee. Aside • from that, a large number of questions were submitted to and answered by the jury, and these covered the facts of the case so fully that there is little cause for complaint in that regard.
*287' affidavits;’ practice. *286The misconduct of the attorney for plaintiff below in the argument of the case is assigned for error. The language used by him was certainly intemperate and improper. Nothing can be said in justification of such practice, and under some circumstances the misconduct would be deemed sufficient to compel a reversal of the judgment. As counsel was proceeding with the statements to which exceptions have been taken, an objection was made by the railroad company, when counsel for plaintiff below remarked, “ I.withdraw that statement, and ask the court to instruct the jury to disregard it.” And thereupon the *287court stated, “Yes, that will be done.” While the remark of the court was made in the presence and hearing of the jury, no specific withdrawal was made, nor was any further notice taken of the misconduct. It was the duty of the trial court to keep counsel within the bounds of proper argument, and to promptly rebuke any attempt to bring in extraneous matters with a view of influencing or prejudicing the jury. It is generally held to be sufficient, where improper remarks are made in argument, 'that an objection is sustained by the court, and the jury are advised to disregard the objectionable remarks in their consideration of the case. Whether the action taken by the court in this instance was sufficient to cure the error may be a matter of some doubt. Assuming, however, that there was prejudice, the misconduct cannot, as the record stands, be made a ground of reversal. While one of the grounds alleged in the motion for a new trial was the misconduct of the plaintiff, it was not supported by affidavit. The statute specifically prescribes that to obtain a new trial for misconduct of the prevailing party, the motion must be sustained by affidavits showing the alleged charge to be true. (Civil Code, §§ 306, 309.) The improper remarks of counsel in argument have always been treated as misconduct, and as such it is imputable to the party for whom he appears ; but as the plaintiff below failed to sustain the charge of misconduct in the manner prescribed by statute, the objection has not been properly saved, and is therefore not available as a ground of reversal.
The judgment of the district court will be affirmed.
All the Justices concurring.