"We desire to add very little to the literature which these cases have provoked. But as they are now to be turned back to their starting points, and a majority of the judges do not unite in any explicit directions to guide the course of subsequent proceedings, it seems desirable to express, as shortly as possible, the propositions of law which lead us to conclude that the judgments should be affirmed.
We consider that the evidence tends to prove that Mr. Berry and his friends (to whom we shall hereafter refer as the “passengers”) were upon the *304defendant’s cars with the consent and permission of the conductor, at the time of the catastrophe.
In dealings with the public, the conductor represents the company in accepting persons to be carried upon his train.
That rule rests upon most obvious principles of justice, as well as upon the common law of agency. Chicago, etc., Railroad Co. v. Dickson (1892), 143 Ill. 368.
Whatever the general rules of the company may have been, as to carrying passengers over that road on construction trains or on Sunday, they did not prevent the defendant, by its managers, from using its cars or sending out such a train with, or intended for, passengers on that day.
The general public who ride on trains are not to be expected to enforce defendant’s rules, whatever they may be, or to determine when an exigency demands their• temporary suspension. Florida, etc., R’y Co. v. Hirst (1892), 11 So. Rep. 506.
The make-up of the train, all the circumstances of its start, the presence of a paying passenger with a ticket, and the action of the conductor, according to the testimony for plaintiffs, tend in our opinion, to prove that the train left Jefferson. City, with the acquiescence of the company’s officers, as a mixed freight and passenger train. This being so, it was for the conductor to determine, after the accident in the Jefferson City yard, 'whether or not the passengers should be further carried on the intended journey in the only cars then available.
We do not design to review the evidence closely at this time. The facts it discloses have been already repeatedly stated from several points of view. We only allude to such as appear necessary to the application of the principles which we think should control the cases.
*305When the return trip began, we assume that the passengers occupied , a position of danger on the flat car next to the engine. But the plaintiffs’ testimony tends to show they were there by the consent of the conductor. They consequently took all the risks incident to that exposed position; but they did not thereby assume, in contemplation of the law, all other risks which might arise from independent acts of negligence by defendant in the management of its train. Their conduct in riding where they were was an important fact in determining whether they were guilty of a want of ordinary care contributing to their injury; but the court would not be justified, in our view, in declaring, as a conclusion of law, that it was the proximate cause of their misfortune. New York, etc., Railroad Co. v. Ball (1891), 53 N. J. L. 283.
The charge of plaintiffs is, and their evidence tends to establish, that the running of the engine backward at an excessive speed (all things considered), over a new roadbed, was the immediate cause of the calamity that ensued.
We hold that as defendant was carrying these passengers, with the full knowledge and consent of the conductor, it was bound (upon principles which we would consider very plain but for what has been said in this case) to use, at least, ordinary care not to subject them to injury by carelessly running the train off the track.
We think it not an unreasonable inference drawn by the jury, that a failure to use such ordinary care was the proximate cause of the death of these parties, and that their prior acts in locating themselves in a place of some danger, though a condition, was not the final or direct cause of their mishap. Adams v. Ferry Co. (1858), 27 Mo. 95; Radley v. Railroad (1878), L. R. 1 App. Cas. 759.
*306In our .judgment the instructions in which the rules of law on this subject were put to the jury are free of any error against the defendant’s rights in the premises. It is true that in some of them the parties are referred to as “passengers;” but the degree of care, devolving on defendant toward them, was repeatedly stated to be ordinary care.
The court evidently used the word “passenger” to describe a person who was on the train with the assent of the conductor, but not to indicate the measure of care required of defendant toward such person.
In common parlance, “passenger” is a word applied generally to persons riding on a train by consent o.f the company whether paying fare or not. It has been often employed by legal writers and judges in this sense. 2 Am. and Eng. Encyclopedia of Law, p. 744, and cases cited.
As used in the instructions before us, accompanied by a statement that the limit of duty of defendant was that of ordinary care only, in the circumstances, that word could not possibly have misled the jury into supposing that defendant was responsible for the use of some higher degree of care.
The introduction of the term “passenger” into the instructions, if an error at all, can not, we think, be justly regarded as one materially prejudicial to the substantial rights of the defendant upon the merits. R. S. 1889, secs. 2100, 2303.
In our opinion the plaintiffs have valid causes of action upon the testimony; the issue of contributory negligence was for the jury, and no substantial error in the proceedings, to the prejudice of defendant, has been pointed out. Hence we do not concur in disturbing the judgments of the trial court. Brace, J., joins in this opinion.
*307STATEMENT BY SHERWOOD, J.
Plaintiff brings this action for damages for injuries done her husband, Green C. Berry, on the eighteenth day of December, 1881, while a passenger on the railroad of the defendant company, and while on his way from Russellville to Jefferson City, Missouri, which injuries resulted in his death.
The petition charges “that the said agents and servants .of defendant did negligently, carelessly and recklessly operate and run said train, with its engine and tender reversed, and over a newly constructed roadbed at a highly improper, too great and dangerous rate of speed, and did otherwise so carelessly and negligently run and manage said train, that a part thereof was-thrown from the track, and said train was wrecked, in consequence of which negligence said Green C. Berry was injured and died.”
The answer of the defendant was, first, a general denial; second, that the train run by defendant, on the Sunday morning of the accident, from Jefferson City to Russellville and return, was a work or supply train, neither intended or allowed to carry passengers, which Berry, the deceased, well knew; that said Berry got aboard said train without the knowledge and consent of the conductor of said train; that said deceased knew that the road was a newly constructed one, and that the locomotive in returning from Russellville to Jefferson City, had to be run backwards, with the tender in front; that he knew that riding on a flat car was more dangerous than riding in a box car, that when said work train was about to start back from Russell-ville, he got upon a flat car, next to the engine, and * against the protests of the conductor in charge of said train, remained upon said flat car, well knowing that the engine and tender was to be run backward over said *308newly constructed road from Russellville to Jefferson City, and refused to go into a box car in the rear of said flat car, as requested by the conductor of said train, and that if he had obeyed the request of said conductor, and had ridden in said box car he would not have been injured, and that his injuries were caused by own negligence, directly contributing to his own death.
The answer further alleges that the deceased, well knowing that said train was not allowed to carry passengers, applied to the road master on Saturday before, for permission to go out to Russellville and return on said train, on the following Sunday, for a pleasure trip; that the road master refused to .give him permission to ride, and notwithstanding such refusal, he got aboard said train in a box car loaded with railroad iron, and did ride therein free of charge, and against the wishes of the conductor of said train, to said town of Russell-ville; that on the return of said train from Russellvile, he got aboard a flat car in said train, and insisted on riding thereon, that they might see the country through which the road passed, knowingly, willfully, wrongfully and recklessly refused to ride in a box car in the rear thereof, where he would have been safe, and escaped all injury, but voluntarily and recklessly remained on said flat car, and thereby took upon himself and assumed all the risk of injuries and death which resulted from his said rash and voluntary act.
The reply denies all allegations of new matter.
This suit is one of three, brought by the respective widows of Berry, Wagner and Zuendt, all of such suits being based on the same accident and the facts in each being, with one exception, perhaps, identical. Wagner’s í. case is reported in 97 Mo. 512. The lower court in that case gave an instruction in the nature of a demurrer to the evidence; the plaintiff took a nonsuit, and on appeal to this court three of the judges ruled that the judg*309ment should be reversed and the cause remanded; while two of them held that the judgment should be affirmed. On the retrial of Wagner’s case some important additional facts were discovered which had remained undeveloped at a former trial.
The following is the substance of the evidence in the present action: For some two months prior to the time of the accident heretofore mentioned, the defendant company had been running its trains over the track of the “Lebanon Branch,” as it is called, from Jefferson City to Russellville; distance some nineteen miles. On week days the defendant company ran a daily mixed train, that is, one carrying both freight and passengers (Sundays excepted), and left Jefferson City at 6:30 a. m. On Saturday next preceding the Sunday the accident occurred, Dewey, the road master of the defendant company, gave an order to Vaughan the conductor on the branch road to take out to Russellville a work or supply train loaded with iron, etc. This train consisted of six cars of iron and a combination coach, the same that was used for carrying passengers on mixed trains ■during the week, and had the same conductor and crew. The combination car or coach contained and carried at all times the tools, materials, lanterns, rubber coats, etc., of the men, and on Sunday this combination car was used by the men who were employed to x work on the road. There was no use for a caboose on the branch road at that time, as the combination car answered all the purposes of work trains and mixed or regular trains. There were two of these work or construction trains employed on the road; they were run at any time that necessity demanded; sometimes Sundays, .sometimes week days. They were not, however, allowed to carry passengers; it was against the general and standing rules of the company to do so; there were standing orders to the contrary. This is testified to pos*310itively by Vaughan, the conductor, and Dewey, the road master, and is disputed by no one. Time cards were published in the newspapers at Jefferson City, stating that passenger trains would be run on the “Lebanon Branch,” daily, except Sundays. This fact was generally known in Jefferson City, as shown by the testimony of several witnesses.
Wagner was the father-in-law of Zuendt and they were in business together as grocers and furnished supplies to the “boarding boss” out at Russellville. Berry and Wagner were not related; but were close friends and lived near together. On Saturday, the day before Sunday, the day of the accident, Wagner went to Dewey, the road master, and asked him if he were going to send out a construction train on the next day, i. e., Sunday, and on being told by Dewey that he would, Wagner asked permission to go out on that train; remarking that Sunday was a lazy day with him and he would like to go; and also asked the like permission for Berry and Zuendt to go with him. But Dewey told him that they were not allowed to carry passengers; that it was a work train merely to carry materials,- and that he could not give his consent; but would give him a pass to go out on the regular train Monday. Wagner thereupon left Dewey, leaving the impression on the mind of the latter that he accepted the condition mentioned. On Sunday morning, however, just before the construction or work train, made up as aforesaid, started from the depot, Wagner, Berry and Zuendt went down and got on the combination car, which was what is termed a half and half coach, one end for passengers and one end for baggage, bringing with them a box of groceries, bread, etc. On their way to the depot they saw Mahan whom they persuaded to go with them, saying they would have a nice trip, visit the boarding boss, etc., etc. Vaughan, the conductor, saw *311Zuendt in the combination car and perhaps Wagner and Berry and others, while it was at the depot, but being busied with his preparations, did not pay any particular attention to who were in the car. Shortly thereafter the train started, that is about 9 a.m.; but had proceeded only something like a quarter of a mile up to Dulle’s Mill, where some of the cars, among them them the combination car, left the track, leaving thereon, the engine and tender and a box car loaded with railroad iron, etc. Thereupon, Wagner, Berry and Zuendt transferred themselves, with their box of provisions, etc., to that bóx car. Mahan, Kelly and others went with them, and they all seated themselves on the iron with which the car was loaded. ,
Yaughan then went to this car and saw these parties in there. He testified that he said to them: “I requested them to get out; I told them positively that I could not carry them; they wanted to know why and I told them we would ,have no place for them to ride back, except on the engine and the engineer would not carry them; this is all I remember of saying to them' particularly—that they must get out; they knew it was not a passenger train; it had no passenger car that day; the only car was a box car loaded with railroad iron; when I told them this some of them got out, but I don’t know how many were in the car. * * * I didn’t know who was in the car until we reached the water tank, eleven miles from Jefferson City, then I found John W. Benjamin, who was foreman of the track-laying gang, Berry, Wagner, Zuendt and Kelly; Kelly was a man who had beep down to Jefferson City some days prior to that and who intended to go back Saturday, but got tight and got left; I saw Kelly and shook hands with him, and asked him how he got on this train, and he said he was going home; he handed me his ticket and I told him it was no good on this *312train, but I took it and tore it up; it was useless on that train and I had no right to take it, nor him as a passenger ; I didn’t know he was in the car; the first I knew that he was on the train was when we got eleven miles out; I found him in the car along with the iron; up to that time I had been riding on the engine, not in the boxcar. * * * I asked Berry what became of Mahan; I saw him on the box car at Dulle’s Mill when we ran off the track; Berry said: 'Why, you told us all to get out and he got out’; I said, ‘I hope Tom won’t get mad about it, I think I done right; I done my duty.’ ”
Vaughan’s testimony as to this request or order made by him for these parties to get out of the car, is supported by the testimony of Mahan who on this point testified: "Vaughan put his head in the window and says, 'Where are you fellows going?’ Of course, some of the crowd spoke up and said, 'Going to Russell-ville, if the train ever goes,’ or something of that kind; He said, ‘I don’t see how you are going to get back,’ or something like that; they said they would come back on the empties; he said, 'I am not going to bring any empties, and the engineer won’t let you ride back on the engine,’ and he said, 'I would rather you did not go,’ and they argued the ease awhile and finally said they would take the chances. Mr. Berry insisted upon my going; he said, 'if they don’t bring any empties back we will hire a team and come back by road this evening.’ I let them think I was going until the train was just ready to start, and as it got in motion I dropped off; I dropped off because I had seen from Mr. Vaughan’s statement, while I did not take it that he ordered me directly to get off, that he did not want us to go. * * * I got out of the box ear at Jefferson City because the conductor asked us to; if Vaughan had not said to me what he did I would have gone with the crowd, that is, *313he did not say it especially to me, he said it to the crowd; I thought of nothing else but going until he made that remark; I knew that the car was not a passenger car.”
Vaughan’s testimony on this point is also supported by that of Kolkmeyer who testified: “I went down to the box car; it was loaded with iron; I can not state who all were in the box car. * * * I saw Berry, Wagner and Zuendt; my brothers were in the ear also; I saw Mr. Vaughan there; Mr. Vaughan told them they had to get out, and just as soon as he said they should get out I went up and said to my brothers, ‘John and Joe get out of here,’ and they got out.?’
Kelly in his testimony does not deny the correctness of the statements made by Vaughan as to his requesting parties to get out of box car; he merely says: “I have no recollection of Mr. Vaughan coming into the car and insisting'upon our getting out; I think I would have heard him, if he had so stated to any of the others,” etc.
The testimony of Scruggs in chief on this point, is of a similar negative character; but on cross-examination he states: “I heard Mr. Vaughan request some of those who got on the cars, not to go; it was a general request,” etc. No fare was demanded of any of the persons in the box car, nor was such a thing thought of. Kelly’s testimony as to Vaughan’s tearing up his ticket is also wholly of a negative character: “I did not see him tear the ticket up and throw it out of the window; he might have done so.”
The conduct of the deceased and of his companions fully justifies one of the allegations of the answer that they were out that day to have “a social and good time together,for when the train reached the water tank, ■eleven miles from Jefferson City, they had emptied *314one bottle of whisky, and after that, having still, a good supply, they repeatedly asked Vaughan to take a drink with them, which he as often refused; they were not intoxicated, but evidently felt the subtle-force of the cup that inebriates as well as cheers. When Lohman’s station was reached, the party seems-to have been in the situation of Oliver Twist, and so they all went to and patronized the sole saloon in the little hamlet, and on Rogers, the engineer, refusing to participate in their potations, Berry informed him that he “was too good for that country.” An other-employee was more compliant with their wishes, and accepted the proffered liquid refreshment. At thatsta^on other cars were added to the train, which then, wended its way on to Russellville, reaching there at 11:30 a. m. There, the box ear loaded with iron was left and a new train made up, consisting of the engine which had brought them there, one flat car, one empty box car and four empty flat cars for the return trip to-Jefferson City. There was no turntable at Russellville, nor had there been, and so, as had been the custom for two months previous, the engine with the tender in front was placed in the lead, with the other cars, coupled on in the rear in the order mentioned. This-arrangement, as will be observed, brought next to the engine one empty flat ear; next to that, the empty box car, and next to that, four empty flat cars. This, as is shown by the evidence, owing to the small number of' the cars and the fact of their being empty, was a very light train, and, of course, very easily managed.
Kelly was left at Russellville. The other parties,. Berry, Wagner, Zuendt, Monnig and Q-emeinhart came to the flat car and got aboard of -it. Vaughan, who-was on the ground, observed them there, and he testifies: “When I saw them up on the flat car, I threw them on a nail keg, a spike keg and a board, and asked. *315them to throw them back in that box car and make a seat of them; they replied—I think it was old man Wagner or Berry—that they would rather ride on a flat car; I said I would rather they did not; that it was more comfortable, safer and better in this box car, and I would rather that they went in there; I think it was Mr. Berry who then said ‘We will ride out here; we want to look at the country, this is old land of mine along here, and I want to see it.7 I left them and told them to put the plank and the kegs in at the window of the box car; they could go right through the iron window, used for putting in iron, at the end of the ear; I didn’t put the plank and kegs in at the side door of the car, because the door on the side that I was on was closed up tight; the door on the opposite side was open, but not this one; I couldn’t get the plank and kegs into the box car from where I was for this reason; it was the easiest and quickest way to put the plank and kegs upon the flat car and hand them back into the box ear. The door at the end of the box car was large enough to go in and out of; they didn’t go back into the box car; we started almost immediately after that time, probably four or five minutes; they had ample time to go back into the car; I was standing on the ground; I got upon the flat car and went into this box car at another window in the end of it; I remained in the box car until the wreck occurred.”
The testimony of Kelly that 'he “did not hear Vaughan say anything about putting this plank in the box car,” that he “did not hear him (Vaughan) say anything to them about riding.on a flat car;” and the testimony of Scruggs that he “didn’t hear Vaughan request Wagner, Zuendt or Berry at Russellville to get into the box car, that it was safer for them in there; he may have done so,” being merely negative- did not *316combat the force of the affirmative testimony of Vaughan on these points.
The testimony of Scruggs “that he was in the box car next to the flat car, looking out of the door, when Vaughan put the plank up on the flat car;” and that he “could hear them talking, but could not hear what they said;” and that “if it had been intended to put the plank in the box car, it would have been most convenient to have put it in at the side door; the side door of the box car was open,” and that he “was standing, looking out of it,” is not at all in conflict with Vaughan’s testimony, because that shows that Vaughan was at the door on the opposite side of the car, and that that door was closed up tight; and so it thus appears that Vaughan adopted, as he says, the “easiest and- quickest way,” which was “to put the plank and kegs up on the flat car, and hand them back into the box car.” Nor does Baker’s testimony contradict that of Vaughan because Baker says: “I didn’t see him (Vaughan) fix the seat on the car.”, Vaughan’s testimony, therefore, on the point involved, must be regarded as standing uncontradicted.
Scruggs also advised Berry and the rest of the party that it would be better for them to get into the box car. He also testified that it was “a safer, better and more comfortable place in the box car to ride than on the flat car; a person is more liable to be thrown off of a flat car than out of a box car; anyone could see that by merely looking at the cars; * * * a flat car has no end protection to keep one from being thrown off, but a box car has and is covered over the top.”
Baker’s testimony supports that of Scruggs on the latter point, because he says: “If these parties had been in the box car when the accident occurred, they would not have been killed.” Indeed, there was no dispute about it among the witnesses that the box car *317was safe and the flat car unsafe, and that this was apparent to anyone.
Testifying on this point, Yaughan says, “The seat they were sitting on was a very unsteady one; it was made of two nail kegs or spike kegs with a narrow board across them; it made a very insecure seat of any kind for a railroad; a jar or anything of that kind might upset the nail kegs.”
Berry, Wagner, Zuendt and the others did not comply with the reasonable request of Yaughan; nor the suggestions of Scruggs, but they took the empty kegs and improvised a seat lengthwise of the flat car, by standing the kegs on end and laying the boards on them and in this way they rode when they train started, and up to the time of the accident, which occurred about a mile and a half or two miles east of Russell-ville, where the engine, the flat car on which these parties were seated, the box car and the flat car next to that jumped the track, leaving three flat cars at the back end of the train still on the rails. This derailment resulted in the death of Berry, Wagner and Zuendt and two others who were with them. Yaughan, who remained in the box ear, was uninjured, and those who were on the engine were not thrown off.
At the point of the wreck, the line of the road is perfectly straight for between three fourths of a mile and a mile, and the derailment of the train occurred near the foot of a grade and about midway of that straight track. It is down grade there from forty-eight to fifty-five or sixty feet per mile, and in going down that grade the steam was shut off, and the cars went down by their own momentum. The straightness of the track as before mentioned, and for the distance stated, is shown by a map prepared, it seems, by General Harding, an experienced civil engineer. This map was introduced in evidence without objection. The *318straightness of the track is also shown by the testimony of Greneral Harding himself, who was thoroughly familiar with the locality; by the testimony of Rogers, the engineer of the train, who testified to the accuracy of the map; by the testimony of Bagnell, who reconstructed the track, and he, too, testified to the map’s correctness.
Opposed to the line of road being straight there, at the locality in question, is the testimony of Thomas, a witness for plaintiff and by general occupation a river engineer, and whose experience as a railroad engineer is limited to two years’ experience in running an engine in 1863 and 1864 on the 0. & M. railroad, who testifies that he went to the scene of the accident in less than half an hour after its occurrence. He says: “There is not a half mile of straight track on the road; for five hundred yards west of where the accident occurred, I suppose there is a bend of two feet, but right down where the train ran off there was an extra curve; I saw the extra curve at the time I went down to see the wreck; it was a bend of about six inches and extending about one hundred and fifty feet west; the train went off the rails about one hundred and fifty feet from the culvert.”
Stone, another witness for plaintiff, also testified that: “I heard of the wreck at the time in Sedalia, and I was sent there about two days afterwards with an engine to take the place of the engine that was wrecked; I know where the accident occurred; there is a grade there to the east; it extends about half or three quarters of a mile west of where the accident occurred; it is not a straight track from where the accident occurred west; the track is straight for between a quarter and a half mile, then the road curves to the right for about a quarter of a mile and then curves to the left for some *319little distance, and that brings you into the cut on the top of the grade.”
Stone had been twice discharged for incompetency; and at the time of the trial was a hostler in the railroad shops of the defendant company at Sedalia.
Now as to the condition of the track: General Harding, 'who had been state railroad commissioner for twelve years and of long and large experience as a civil engineer, and with all matters relating to the running of trains, was the'original constructor of the roadbed from Jefferson City out eighteen miles towards Russellville and within a mile of that place. The roadbed, therefore, was an old one, having been graded some nine years before the accident, and the work done upon it subsequently was largely in the nature of dress-' ing up the old roadbed a little and making the bank a little wider. After this was done, the track laid and the trains running on the road, General Hardin went over the route and, testifying on this point, he says: “I was out very early in the month of December, a short time before this accident occurred; the track had been laid at that time for some two months; the condition of the track was good; it was in good line, in good surface and had been backfilled and was in good condition; it was solid, as well as I can remember, and trains had been running over it for several weeks, I don’t know exactly how long; I examined the track particularly and I remember the culvert; it had been repaired and the superstructure was all new; I don’t recollect the size of the opening, but the culvert was in good condition as to strength; it was ample.”
Bagnell, who did the work of reconstructing or dressing up the old roadbed says: ”1 remember the locality of this accident; I had the grading done along at that locality; I was on the ground attending to it in person, watching over my foreman, going backwards *320and forwards daily; we found an old grade there, which at that time was in very fair condition; the engineer staked the road out, with the center of the old bank as the grade; some places were washed out a little, but generally the center of the old bank was grade; it had washed off on the edges; we trimmed it up and widened it a little; I think the old bank was first put up about twelve feet in width; we graded it to about fourteen; we put but very-little additional dirt on top of the old grade; I don’t think, except in certain places, that there was anything put on top of the old bank, because we took the center of the old bank as grade; by grade I mean the uniform depth of the bank; when we got through with our work of grading up the road I would consider it in a first-class condition as to solidity and safety when operating a railroad over it; it was a very low bank and all the dirt used was surface dirt, and that kind of material makes the best roadbed, except where rock is used; it is next to rock, that kind of material, I mean the top soil or loam; ■ then the line was also straight at this point; it is straight there for about three quarters of a mile or a mile. The map shown me shows the location and character of the track and roadbed; I passed over the road frequently after the ties and rails had been put upon it; it was in good condition; there were two thousand, six hundred and forty ties to the mile; it was a straight track and surfaced pretty well and well lined up.”
Dewey the road master of the defendant company, and a civil engineer gives similar testimony as to the good condition of the track. He says:
“I occupied the position of road master, on this rdad from the time they commenced laying the track from Jefferson City; I had charge of all the work after the grading .was completed, laying the track and finishing it up for use, putting it in condition to operate; *321the condition of the track on December 18, 1881, near Russellville, where this accident occurred, was very good, better than ordinary roads; it was well surfaced and in good line; it was an old roadbed which had been graded a long time and was well settled; it had been graded six or eight years and we just put a little fresh dirt on top of the grade. There was a small embankment, two or three feet high, at the place where the accident occurred; I know how the road was, at the point where the accident occurred, by actual observation ; I saw the work done and saw that it was properly done; I had the ties and rails put down on that portion of the road; they were put down in the ordinary way, placing the ties and spiking the rails to them; ’ there was no low, wet place at the place of the accident which caused the ties to slide; I am more than sure of that; I went to the scene of the accident soon after it occurred, probably two or three hours; I examined the wreck and the track; I could not ascertain what' • caused the train to run off the track; I could not see any good cause for its doing so; there was no material slide of the track; there was one rail two or three inches out of line which might have been caused by the cars jumping the track; they might have knocked it off a little, but nothing but what any train would run over, even after the wreck; I did not find any low or wet place there; nothing of the kind.”
There is no pretense in the evidence for the plaintiffs that the track was not well and thoroughly built; the only point, made about it is that it was new, and, therefore, not as solid as an old one; but none of the witnesses who examined the track at the point the tender left the rail, give any reason for its having done • eo. On this point Rogers, the engineer in charge of the train says: “I can not tell what caused that engine and tender to get off the track; I examined to find out *322and found the track all right; there was one wheel that showed a break but it was a new break, and looked like it broke right where it stopped; didn’t look like it had made a turn after it was broken; the condition of the track and roadbed was good.”
As to the speed of the train, there was a difference of opinion among the witnesses. So also there was a difference of opinion among them as to whether the rate of speed was imprudent with the tender in the lead. Scruggs, a brakeman and. witness for plaintiff, thought the rate of speed was about twenty miles an hour. Wiley, also one of plaintiff’s witnesses, and a fireman on the train, thought the rate of speed was fifteen to eighteen miles an hbur; but did not think that such a rate of speed was dangerous with the engine reversed, unless obstructions were on the track, and. that an engine thus reversed ran no more risk of jumping the track, if the track were clear when running at the rate of twenty-five miles an hour than in running ten miles an hour.
Baker, another brakeman on the train and witness for plaintiff,¡thought the train was running eighteen to twenty miles an hour.
Binkley, also a witness of plaintiff, though he gives no estimate of the rate of speed, says he had seen trains with the tender in front run as fast on that road before.
Stone, on behalf of plaintiff, testified that it would not be prudent to run an engine and tender reversed at a speed of eighteen miles an hour, and gives as a reason that the vibration of the water in the tank would cause the wheels to jump up and down; but he admitted that if the tank were full of water and the tender full of coal it would not vibrate so much. The testimony shows that the tank was nearly full of water and that there were four and one half tons of coal on *323the tender. But this witness says further on: “Where an engine is operated backward as much as forward, there is not, ordinarily speaking, any more danger in running it one way than another, except an engineer can see better when he is going ahead than when his engine is reversed.”
The testimony in this case shows that, owing to there being no turn table at Russellville, it was the daily custom to run engines with the tender reversed.
Thomas, another witness for plaintiff who had not run an engine since 1864, thought it would not be prudent to run an engine with tender reversed down a grade and around a curve faster than ten or twelve miles an hour.
On behalf of defendant, Dewey, a civil and locomotive engineer of extended experience, says that it is customary to run work trains at a rate of speed of fifteen to eighteen miles an hour with the engine reversed and that such was the custom on that road, as it was in good condition, and that such rate of speed was not reckless or dangerous.
Yaughan, the conductor, says that it is considered as safe to run an engine reversed as it is in the usual way, so far as concerns jumping the track, and that the train in this instance was not running in excess of the usual rate of speed, that is, fifteen or sixteen miles an hour; that they had run down that grade much faster before.
Rogers, the engineer, and who had acted as such since 1874, says that they were running twelve or fifteen miles an hour, not exceeding fifteen miles; that when the derailment occurred, the fireman jumped off the engine and did not fall and that this showed that the train was running slowly; and that the rate the train was running was not. dangerous, and that the speed had nothing to do with the tender jumping the track.
*324General Harding, whose experience in railroad matters is not questioned, and who was entirely familiar with the locality of the accident, says that fifteen to twenty miles an hour with the tender reversed was not a dangerous rate of speed over that part of the road, and that trains with engines reversed are run in and out of the city of St. Louis, at twenty-five miles an hour every hour in the day.
This is regarded as a substantial resume of the evidence. If necessary, other facts will be noticed hereafter.
Instructions were given and others refused which will accompany this opinion. The jury returned a verdict for plaintiff for $5,000, and from the judgment thereon the defendant appeals.
OPINION.