delivered the opinion of the court.
The appellant was plaintiff below and brought suit for personal injuries, charging in his declaration: That *450he was a switchman on one of defendant’s log trains, and that it was his duty to couple cars to the engine, and that the engine would back over the log roads pushing the cars in front of it on occasions. That is was his duty to couple the cars, and to go ovc-r the cars when they were being pushed in front of the engine to the forward part of the train, where he could observe and give the necessary signals for the protection of the crew and of persons and property on the track. That the defendant owed him the duty to furnish him with a reasonably safe place to work, and that he failed to do so, in that the cars furnished him wore skeleton cars provided with only two sills five inches in width and fourteen inches apart for him to walk over, and that the defendant knew that such cars were not reasonably safe, and that without impairing the efficiency of the cars for the purpose for which they were intended a twenty-four inch floor could be put in the center of the cars at a small cost which would render these skeleton ears safer. That the plaintiff reported to the defendant that said cars were of unsafe construction, and the defendant promised- plaintiff to remedy the. same by putting down floors from sill to sill, but failed to keep such promise.
It is further alleged that the cars were coupled by means of link and pin couplers, which caused an excessive amount bf slack between the cars, and that the track was in rough condition, and that said rough track and the link and pin couplers made the cars more dangerous. It is further alleged that on a named day while the plaintiff was in the ordinary discharge of his duties, he coupled the cars next to the engine and started forward between the last car from the engine as same was being pushed along towards the woods, in order that he might take his place on the proper car, and wThile on his way, on said moving train, and in the discharge of his duties in'the customary way, he was caused to fall against an iron rail on one of the cars by reason of the unsafe and *451dangerous construction of the said cars, and by reason of the unsafe amount of slack between the cars, and on account of the rough condition of the track.
It is further alleged that one of the sills on one of the cars had become unsafe by a portion of the surface being splintered off so as to make the sill a sharp edged sill less than five inches in width, and that the company had notice of the said dangerous condition of the cars, and of the said defect in the sill which presented a sharp surface, and formed a dangerous and unsafe place for a walk way, and because the train was in motion, and because the plaintiff discovered the dangerous condition of the sill too late to prevent himself from coming in contact with the same, and, on account of the condition of the sill and the negligence of the defendant in allowing it to become and remain in such condition, he lost his balance and was thrown against the said iron rail, and as a proximate result thereof he was severely injured. It is further alleged that the defendant had knowledge of the defective sill and of the defective walk ways, and had promised to repair them but had not done so.
The defendant pleaded the general issue, and set up a special plea alleging that the plaintiff was a conductor in charge of the cars, and that he voluntarily operated the same in his capacity of conductor knowing the unsafe and defective condition of such cars, if such existed. In his replication the plaintiff denied that he was the conductor of the train; denied that he knew that the sill furnished him to walk upon was defective; and alleged that the defendant company had promised and agreed to provide him a floor to walk over, and had promised to repair and fix a walk way over said cars, and that plaintiff did not voluntarily operate a defective and dangerous car.
The testimony on the part of the plaintiff was to the effect that he was a brakeman and not a conductor in charge of the cars; that he was acting under orders of *452another who had control of the movement of the cars, and that he testified that the defendant company had promised to fix the floor of the walk way on the said cars and had failed to do so; that he relied on said promise and also testified that other companies for whom he had worked had such walk ways provided on their logging-cars. He admitted that on some occasions he had signed as conductor in delivering cars to a railroad which required a conductor to sign the consignment.
The evidence for the defendant was that the plaintiff was the conductor, and had the control and direction and operation of the said cars. It is also in proof for the plaintiff that the car which had the rough surface had been in that condition long enough to be discovered by a reasonable inspection, and that it ought to have been repaired, and that it was dangerous to undertake to walk over this particular car while the cars were in motion, and that the plaintiff was injured by walking thereon, and that he did not know the defective car was in the train until he started to step, and could not then prevent steppingon such defective car after the discovery of the said unsafe and dangerous situation. The plaintiff further testified that it was customary and was his duty to walk over the moving train of cars. The defendant’s testimony was to the effect that it was not his duty to walk over the cars, but that he could walk on the ground from the engine up to the place where his duty called him to be to keep a lookout and that' it was his own negligence that caused him to walk over the moving- train of cars to reach the place or position-of service. Defendant also contended that it was against the rules for the plaintiff to walk over the train while in motion. Plaintiff denied knowledge of any such rule of the defendant, or that it had ever been communicated to him.
It will be sepn that there was a sharp conflict in the evidence as to whether the plaintiff was a conductor in charge of and operating the said cars, or whether he was a switchman occupying a subordinate place. The instructions for the defendant instructed that if the jury *453believe from the evidence that plaintiff, in tbe proper performance of liis duties required of him, was not required and it was not necessary for him to walk over tbe cars after tbe train was in motion, and after tbe train had been started, then it was the duty of the jury to find for the defendant.
In quite a number of the instructions the jury were told that if it was not necessary for the plaintiff, in the performance of his duty, to walk over the cars while the train was in motion, that it was their duty to find for the defendant. In effect the same instructions were given as to the condition of the track; that if the plaintiff was familiar with the condition of the roadbed and any defects therein were such that by the exercise of ordinary care and reasonable prudence a man could have and would have observed and noticed such defects, and would have appreciated the effect of such condition would obviously cause the swaying of the train, and that the plaintiff knew and appreciated the danger in walking on the cars, that such dangers were obvious and patent, and if he knew the cars would be liable to bump together in taking up slack, and that they were unsafe and dangerous to walk upon while the train was in motion, and that the plaintiff undertook to walk upon the train while in motion, then the jury should find for the defendant.
The court further instructed for the defendant, that under the law it was not the duty of the defendant to repair the splintered car or sill of the car which plaintiff alleged he fell upon and was thereby injured, unless the jury believed that the plaintiff in going to. the place on the moving train where his duty required him to be, that it became necessary in the proper performance of his dirties that he should walk over said defective sill to get to the-said point on said train. The court further instructed the jury that if the plaintiff in the proper performance of his duties was not required and it was not necessary for him to walk on the moving train of cars, but that he voluntarily walked over said moving train, then it was the duty of the jury to find for the de*454fendant even though they may further believe that the defendant neglected to keep said defective car sill repaired or to keep its track in reasonable repair.
It will be observed from these instructions that these instructions did not incorporate as one of the hypotheses that the jury must believe that the plaintiff was a conductor in charge of the cars, and that he voluntarily operated said train knowing its defective condition. The instructions proceeded upon the idea that the plaintiff cannot recover, although the master was negligent, if the plaintiff voluntarily walked over the moving train.
Section 504, Hemingway’s Code (chapter 156, Laws of 1914), provides:
“In all actions for personal injury to an employee, and in all actions where such injury results in death, such employee shall not be held to have assumed the risks of his employment in any case where such injury or death results in whole or in part from the negligence'of the master; except as to conductors, or locomotive engineers, in charge of dangerous or unsafe cars or engines voluntarily operated by them.”
There was testimony from which the jury could find negligence against the defendant, and there was evidence that it was customary for the plaintiff and others in a like situation to walk over the cars while i,n motion and that the master knew of this practice and custom. There was also evidence that the master had been expressly notified of the dangers attending such operation, and had promised to provide a safer way. In view of these facts it was error to give these instructions for the defendant without incorporating the hypothesis that the plaintiff was the conductor in charge of the train of cars, voluntarily operating it, with knowledge of its unsafe condition, etc.
Tírese instructions were prejudicial and erroneous, and the judgment ,of the court below will be reversed, and the cause remanded to the court below for a new trial.
Reversed and remanded.