delivered the opinion of the court.
Without giving any consideration whatever to the testimony introduced on behalf of defendant in the court below, we find that presented on behalf of plaintiff, at its strongest, to be this: Plaintiff was the fireman of - a locomotive of defendant, which, on a run at night, ceased to work, stopped, and would go no further. The engineer on examination found that the trouble arose from the fact that a valve key had worked out and was lost. Thereupon the engineer, who was the agent or officer of the railway company superior to plaintiff, with the right to control and direct his services, had him to pull the reverse lever back so as to disclose the point of difficulty, and then had him to get on the engine and bring a file, which he proposed to substitute for the valve key, and' then to hold a lantern while he drove the file into the hole designed for the valve key. While the engineer was hitting the file with his hammer “pretty hard to drive it in there,” the file being very brittle, pieces flew from *202it, and one of the splinters struck plaintiff in the eye, resulting in its becoming blind, as will probably be the case with the other eye through sympathy. Tfwo or three blows were struck with the hammer before plaintiff was hit. He saw splinters fly from the first, and could have turned his head “if I knew it was going to hit me.” He says, also, in answer to a question whether it is not the fact that he did not think there was danger until he got hit: “I knew the file would break when you would go to beating on it.” Elsewhere he says, “Every lick he hit it, there was something flew from it,” and that this was apparent to the engineer, who never told him to get out of the way. The file served as a substitute for the valve key, and the train went on to its destination.
The effect of this accident on the appellee is very deplorable indeedbut whether appellant is liable for damages is a question of law, and not of sympathy. All men are subject to such chances of hurt, but compensation may be had only where the hurt is because of some breach of duty. At common law there could be no recovery in this case on the facts, and it cannot be sustained now unless because of some of the provisions of Constitution 1890, sec. 193. By no fair construction, however strained, can we refer the facts here, under the common law or the constitution, to the class of defective or unsafe character or condition of “machinery, ways, or appliances” by any rational intendment. Neither can we find that negligence, as understood in the law, or ordinary perception of facts by the public, can be properly imputed to the engineer by this record. The event here was extremely improbable, not to be foreseen or provided against by the appellant, however prudent. Liability could not reasonably be held to have been incurred by the engineer himself. The engine was made useless by the casualty of the loss of the valve key. Immediate substitute for it was absolutely demanded by the requirements of travel and commerce ; it was necessary to the interest of defendant and of the *203public at large that the engine should be put in shape to go. In this emergency the engineer did what any sensible man would have done. He got the best substitute he could have gotten— the file — and drove it in. He himself incurred whatever danger there was in it. He eould not have foreseen there was any in it. The danger itself was not apparent, and belongs to the realm of mere possibility.-or conjecture, and even this could have been easily avoided by plaintiff by merely turning his head when he first observed the splinters fly from the file. This case belongs in the category of accident, pure and simple; and the damage might occur at any time to anybody in making a fire, cutting a tree, or driving a nail, by another. State v. Becker (Del.), 33 Atl., 178; Alexander v. Bailey, 70 Tenn. (2 Lea), 636; Aurora v. Grimes, 13 Ill., 585; Osborne v. Van Dyke, 113 Iowa, 557 (85 N. W., 784; 54 L. R. A., 367); Raiford v. Wilmington, 130 N. C., 597 (41 S. E., 806); Wendall v. Chicago (Mo. App.), 75 S. W., 689; 1 Words & Phrases, 64, 65.
The peremptory instruction asked by defendant below should have been given.
Beversed and remanded.