“The conductor is regarded as supreme in authority on the train, as if a captain on board ship, and his acts * * * are the acts of the company.” 2 Rorer, Railroads, p. 964. Although this is true, and although it is true also as a corollary of that that the conductor in this case might have removed Aufdenberg by force from his seat on top of the box car, yet it by no means follows that it was negligence in any sense for. the conductor to fail to remove Aufdenberg in the manner suggested. A simple, request was sufficient, and a peremptory order unnecessary. This was the view taken by the members of this division in Berry’s case, 124 Mo. loc cit. 338, 339 et seq., and cases cited, and we still retain the same view of the law on the point that we did then. There is no adjudication to the contrary.
Besides, the conductor states that Aufdenberg’s position when seated on top of the box car, was comparatively a safe one, and that it would have been almost impossible for Aufdenberg to have fallen if he had' not gotten up; and the testimony clearly shows that' he did not fall from his seat, but fell while walking on top of the box cars toward the engine, while the train was running from twelve to fifteen miles per hour.
It is entirely unnecessary for us to say at this time what would have been the conductor’s duty had Aufdenberg been drunk, as there is not a particle of testimony to that effect; and while intoxication, if it went to a certain extreme, might tend to rob a man of his discretion, yet certainly this would not be the result of his mere sickness; but on this point, as already stated, the deposition of Dr. Miller taken by plaintiff shows that Aufdenberg was not sick.
Not only was the conductor not bound to use force to compel Aufdenberg to come down from the box car *576and come within the passenger coach, but even if he had ordered him to ascend the box car and to ride or' walk thereon, such a command would have been no excuse to Aufdenberg and cast no liability on the defendant company had such a command been obeyed/ Where the danger is plainly open to observation, an adult passenger will not be justified in yielding obedience to an order which can not be obeyed without the incurrence of manifest peril. Railroad v. Pinchin, 31 Am. and Eng. R. R. Cases, loc. cit. 431; Railroad v. Carper, Ibid. 36; Railroad v. Jones, 95 U. S., 439.
In the case last cited, Swayne, J., said: “The plaintiff had been warned against riding on the pilot, and forbidden to do so. It was next to the cow-catcher, and obviously a place of peril, especially in case of collision. There was room for him in the box car. He should have taken his place there. He could have gone into the box car in as little, if not less, time than it took to climb to the pilot. The knowledge, assent, or direction of the company’s agents as to what he did is immaterial. If told to get on anywhere, that the train was late, and that he must hurry, this was no justification for taking such arisk. As well might he have obeyed a suggestion to ride on the cow-catcher, or put himself on the track before the advancing wheels of the locomotive. The company, though bound to a. high degree of care, did not insure his safety. He was not an infant nor non compos. The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on his part. Without the latter, the former could not arise. He and another who rode beside him were the only persons hurt upon the train. All those in the box car, where he should have been, were uninjured. He would have escaped also if he had been there. His injury was due to his own recklessness and folly. He was himself the *577author of his misfortune. This is shown with as near an approach to a demonstration as anything short of mathematics will permit.”
In Clark v. Railroad, 36 N. Y. 135, it was held prima facie negligence for a passenger to ride on the steps of a horse car, and it was laid down as a principle of law that', when it appears that a passenger is riding upon a car in a place of danger, his negligence is prima facie proved, and that the onus is on him to rebut the presumption.
In Railroad v. Bisch, 41 Am. and Eng. R. R. Cases, 89, Elliott, C. J., said: “One of the instructions given by the court reads thus: ‘Even if the jury find from the evidence that the plaintiff had been warned against standing on the platform, and had been directed to go inside, and had disobeyed the instruction, still, if the jury also believe from the evidence that the conductor of the train, at the moment of giving the signal to start, actually saw the plaintiff on the rear platform of the caboose, * * * and knew that he was in a dangerous position, a,nd gave the signal to start while the plaintiff was in that position, and without giving him a reasonable time to enter, and that by a sudden jerk in starting the cars the plaintiff was thrown to the ground and injured, then the jury should find for the plaintiff. ’ This instruction can not be rescued from condemnation. Leaving out of consideration minor matters of objection, and placing our decision upon broad grounds, we adjudge that the instruction is so radically wrong as to compel a reversal of the judgment. The plaintiff by refusing obedience to the directions given him, and by voluntarily remaining in a place of danger after warning, assumed the risk of injury. The case, as it appears in the hypothesis on which the instruction proceeds, is a stronger *578one than the ordinary case of contributory negligence; for the plaintiff did more than carelessly seek and remain in a place of danger, for he remained there in disobedience of directions given him, and despite the warnings which he received. He in fact assented to the injury. The case goes beyond the operation of the rule on the subject of contributory negligence, and comes within the scope of the maxim, volenti non fit injuria. * * * One who is himself guilty of' a breach of duty, and wrongfully remains in a place of danger, can not recover if that wrong was the proximate cause of his injury, although another may have also been in fault. To authorize a recovery the case must be one ‘of unmixed negligence.’ This case strikingly illustrates this rule, for had the plaintiff entered the car, as it was his duty to do, the injury would not have befallen him. Clearly, then, his own wrong was the proximate cause of his misfortune. * * * Not only did the plaintiff, upon the theory on which the instruction is constructed, disobey a direction given him, but he remained in a place of danger where he ought not to have remained, even if he had not been warned and directed to leave it.”
The author of a work of recognized merit says: “Grown persons must be permitted to exercise their discretion, in a great measure, as to the positions they will occupy upon the carrier’s conveyance, and to take upon themselves the risk of many dangers by their negligent conduct, if they choose soto do, with full knowledge of the probable consequences, and no obligation rests upon the carrier to remonstrate or to forbid it.” Hutchinson Carriers [2 Ed.], sec. 665. To the like effects see 2 Wood Railroads, secs. 303, 304; Higgins v. Railroad, 36 Mo. 418; Tuley v. Railroad, 41 Mo. App. 432; Railroad v. Langdon, 1 Am. and Eng. R. R. Cases, 87.
The foregoing reasons and authorities unquali*579fiedly condemn the instructions aforesaid, given at the instance of plaintiff, and conspicuously mark the error of the refusal of the fourth instruction asked by defendant.
As to defendant’s third instruction, it was properly refused on the ground that there was no evidence to show consent on the part of the conductor. If. there had been, such evidence, then the instruction would have been properly asked and improperly refused. Passengers are expected to ride in the places designated by the rules of the company, and a conductor can not consent to their doing otherwise, especially where such consent permits the passenger to go to such places of imminent peril, as this record discloses Aufdenberg went.
In conclusion, and as a necessary result of remarks heretofore made, the instruction in the nature of a' demurrer to the evidence should have been given. The judgment should therefore be reversed, and as plaintff has no cause of action, we will not remand the cause, but direct judgment for defendant to be entered in this court.
All concur.