delivered tbe opinion of tbe court.
We are clearly of the opinion .that Emmerson brought his death upon himself by his own contributory negligence in the management and handling of his train. He had the caboose in front of the engine in going down to the place of the wreck, and kept it in front; a chain being fastened to the caboose and the derailed engine. The caboose, of course, operated to obstruct the view of the engineer. The coupling of the end of the tender, in its dilapidated condition, to the drawhead of the caboose of his own train, was made with a chain from ten to twelve feet long; and there was left, in this chain, a “slack” estimated from three to eight feet. Emmerson himself arranged this coupling. The defendant’s testimony, by the witness, Erazier, was to the effect that the derailed engine could have been attached, leaving not more than a foot of slack, and it is perfectly obvious, if this had been so done, the derailed engine could never have ridden the platform of the caboose and caused this injury. One of the witnesses for the plaintiff, Brazile, testifies that the less slack you had the better, if the derailed engine was to be pulled some distance. Three witnesses, Erazier, J. J. Duffy, and J. M. Ansley, all for the defense, the latter the conductor of the other train, testified that they told Emmerson it was very dangerous to operate the train in such a ivay, with such slack. Erazier said that he told Emmerson to stop and take up the slack; that it was very dangerous; that it ^was too much, and if he did not stop, the éngine would run into him; that he said, “no, it was all right;” that he told Emmerson that he himself would not stay out there, and was going into the caboose, four to ten minutes before his injury. Erazier also testified that Duffy told Emmerson that the slack was unsafe, and that Emmerson told him to go away and let him alone; that he could handle it; and that Duffy then went to the other end of the caboose. Ansley testified that he *608told Emmerson lie had better chain the engines better, that he had them in 'a very bad condition, and that Emmerson said he would fix them. The testimony of these three witnesses is uncontradicted in this respect, that they called Emmerson’s attention directly to the dangerous condition of the fastening, and especially warned him, and that he declined to remedy it, saying he would fix it, meaning later. Even if it be conceded that it was the riding of the platform of the caboose by the engine which knocked the rod down on Emmerson and killed him, it is none the less true that it was the slack which enabled the engine to so ride the platform. If the engine had been properly chained, the injury could never have occurred. However much we may deplore the misfortune, it will never do to sacrifice the principles of law by making a bad precedent to suit a hard case.
The servant certainly takes upon himself, whenever sent to construct or repair, whatever of added risk may come from the existing condition of the place in which, or the appliance with which, he is to work (2(3 Am. & Eng. Ency. Law, 132), where such condition is obvious to him and not known to the officer sending him. This must certainly be so in a case like this, where the servant had his attention specially called to the dangerous method he himself adopted, and refused to correct the improper coupling. If it should be conceded that the order of Jones, trainmaster, to Emmerson, vas an order which J>ut him to work outside his proper department, that does not, of itself, necessarily make the company liable for injuries received by Emmerson while engaged in such work, if the injuries resulted from Emmerson’s own contributory negligence on the spot and at the time. Contributory negligence is still a good defense, if it exist in such a case. 3 Elliott on Railroads, sec. 1304. We think it perfectly clear that Emmerson was guilty of contributory negligence, and hence the peremptory instruction should have been given.
Reversed and remanded.