The plaintiff brought this suit in the circuit court of Lafayette County against the defendants to recover $30,000 damages for personal injuries received through their alleged joint negligence. The trial resulted in a judgment against both defendants for the sum of $15,000 and after moving unsuccessfully for a new trial both defendants appealed the cause to this court.
The defendant, Waverly Brick & Coal Company (which, for brevity, will hereinafter be called the Coal Company) was engaged in mining, loading, shipping and selling coal; the defendant Railway Company was a common carrier, engaged in the transporting of coal and other freight to and from Waverly to and trom other points in the State, and the plaintiff was an employee of the Coal Company, engaged in trimming cars, that is, standing on the cars while they are being loaded and separating stone and other foreign materials from the coal as it passed into- the cars, and trimming them up neatly as they were being loaded.
When the cars were to be loaded they were placed on a side switch of said- Railway Company at a chute *48at said mine, at which there were three tracks on which cars might be placed for the purpose of loading, and the coal was carried up from the mines and dropped into a shaker which carried the same to the car being loaded, and at the end of the shaker there was an apron extending to near the middle of the car for the purpose of distributing the coal in the car. The main line of the Railway Company passed north of the chute, and the three side tracks branched off from the main line about a quarter of a mile therefrom and ran north and east of the chute, which made a large curve, and on the concave side thereof there was a high bluff, which prevented one working at the chute from seeing a car as it approached the same until it reached the point beyond the switch numbered three, a distance of about 180 feet.
At the time plaintiff was injured he was standing with his back to the north, with his left hand resting on the shaker.
The plaintiff was an experienced man in the business, having worked for the Coal Company for years and was perfectly familiar with the method of loading, switching and handling the cars about the chute.
The uncontradicted evidence of all parties showed that it was the custom in moving the cars to be loaded, or after they had been loaded, for the foreman or some other employer in charge of the mines to advise the Railway Company what cars it was desired should be moved, and that such foreman would then notify the person engaged in trimming the cars what was to be done, so he could look out for his own safety; the record also shows that it was not the custom of the Railway Company to notify the employees of the Coal Company of the intention to move the cars about the chute. This custom was known to and acquiesced in by the plaintiff and other employees of the latter company.
The plaintiff’s evidence tended to show that on the morning of the accident, Robert Moss, who was in charge of the mines and employees of the Coal Com*49pany, told plaintiff to go down to the train crew when the local came in and ask them to set in some cars on the switch, which would necessitate moving the car on which the plaintiff was at work under the chute as a trimmer. That in pursuance to the instructions of Mr. Moss, plaintiff saw the train crew, but was advised by them that they would not be able to do the switching that morning. He then went back to work on his car, and while there engaged, Moss came to him and asked if his message had been delivered. The plaintiff gave him the reply made by the crew. Moss says that he told the plaintiff to .prepare for a switch, and that he would go down and see what he could do with the train crew. The plaintiff denies this statement of Moss, but says that after he told Moss what the train crew said, Moss went down the track to where the crew was switching near the main track. He continued to work on the car. Moss continued on down the track to where the train crew was at work and asked them if they could not set in the desired cars. The foreman asked him if it could be done immediately. Moss told him it could; the foreman said alright and signaled the train, which was slowly backing in his direction, to go on back. The train continued to back slowly south toward the shaft, and after picking up two cars between the chute and the train, backed on against the car upon which the plaintiff was at work. "When these cars struck the car under the chute, the movement threw the plaintiff from the top of the car under the wheels, and he sustained the injuries of which he complains. Moss, after telling the train crew that it would be all right to back on down and make the switch, did not make any effort to warn the plaintiff. He says that having told the plaintiff what he intended to do, he presumed that he would be on the lookout. Plaintiff testified that not hearing what Moss said to him about going on down and having the switch made, he gave the matter no further thought.
*50As a result of his injury, it became necessary to amputate the right foot of the plaintiff six inches above the ankle, as well as the little finger on his right hand.
The Coal Company introduced no evidence except Rule 379 of the Railway Company, which was in force at the time the injury occurred. It reads as follows:
“In switching at stations and in yards where it is necessary to disturb cars that are being loaded or unloaded, great care must be taken to warn all persons in the vicinity of the same and opportunity given them to get away from the cars and out of danger before the cars are moved.
“When cars are so moved they must be returned to the same position found.”
At the close of the plaintiff’s case, counsel for the defendants asked and the court refused a demurrer to the evidence.
Such other facts as may be necessary for the proper disposition of the case will be stated in the opinion.
I. It is first insisted by counsel for the defendants that the trial court erred in refusing their demurrer to the evidence.
Dangerous Place: Notice, The evidence clearly shows that the place where the plaintiff was working, in the absence of notice to him of the approaching train, was dangerous, and that each of the defendants knew of that danger and adopted means to obviate it. All the authorities recognize such places as being dangerous. Moore v. Wabash, St. Louis & Pacific Ry. Co., 85 Mo. 588; Koerner v. St. Louis Car Co., 209 Mo. 141.
And the plaintiff had the right to assume that the defendants would not imperil his safety by permitting or causing the ear on which he was at work to be struck by other cars and moved without notice or warning to him. Young v. Lusk, 268 Mo. l. c. 639; Williams v. Wabash Ry. Co., 175 S. W. 900; Koerner v. St. Louis Car Company, 209 Mo. 141; Kame v. Railroad, 254 Mo. 175; Peppers v. Plate Glass Co., 165 Mo. App. 556; Anderson v. *51Ry. Co., 196 Mo. 442; Porter v. Stock Yards Co., 213 Mo. 372; Kettlehake v. Car & Foundry Co., 171 Mo. App. 528, l. c. 541; Hutchinson v. Safety Gate Co., 247 Mo. l. c. 94; Erickson v. Railroad, 171 Mo. l. c. 659; George v. Railroad, 225 Mo. l. c. 405; Charlton v. Railroad, 200 Mo. 413; Crawford v. Stockyards Co., 215 Mo. l. c. 414; Clark v. Railroad, 234 Mo. 396; Clark v. Iron & Foundry Co., 234 Mo. 436.]
The Coal Company, in order to prevent injury to its employees engaged in such work,' undertook to notify them when any car they were on was to be moved, and the Railway Company adopted the rule read in evidence designed to accomplish the same end. It is conceded that the Railway Company did not perform this duty to the plaintiff, nor to any other of its employees working about this chute, but depended upon the Coal Company to discharge that duty for both of them.
The law is well settled that if one person owes a duty to another, and instead of performing that duty himself, depends upon a third party to discharge it for him, and that party neglects to so do, and the person to whom the duty was due is injured in consequence of said neglect, then the party who owed the duty is liable in damages for the injury resulting therefrom. This is elementary. [Neff v. City of Cameron, 213 Mo. 350; Berry v. Railroad, 214 Mo. 593; O’Rourke v. Lindell Ry. Co., 142 Mo. 342; Applegate v. Railroad, 252 Mo. 173; Benton v. St. Louis, 248 Mo. 98.]
Nor can the defendants, or either of them, escape the result of causing or permitting cars to be pushed against the car upon which the plaintiff was working, without warning, by showing that they or either of them habitually neglected to do so.. This is upon the principle that no custom or usage can make that lawful which is unnecessarily dangerous; and no one will say that to push cars back against the one on which the plaintiff was at work without warning was not unnecessarily dangerous. [Indermaur v. Dames, L. R. 1 C. P. l. c. 274; Reichla v. Gruensfelder, 52 Mo. App. l. c. 69; *52Dawson v. Ry. Co., 114 Fed. l. c. 872; 26 Cyc. pp. 1108-9 and cases cited; Hosic v. Railroad, 75 Iowa, 683; Hamilton v. R. R. Co., 36 Iowa, 31; Wendler v. People’s House Furnishing Co., 165 Mo. 536-7; Settle v. St. L. & S. F. Railroad, 127 Mo. 336; Pauck v. St. Louis Beef & Provision Co., 159 Mo. 467.]
Under this principle of law the Railway Company ■cannot escape liability unless the Coal Company performed the duty mentioned for it, that is, notified the plaintiff of the approaching train, which if done, would have enured to both defendants. Under' this view of the case, it becomes important to inquire as to whether or not the Coal Company performed this duty.
The plaintiff testified positively that Moss, the foreman of the Coal Company, did not so notify him, while Moss does not say positively that he did, but testified that he told the plaintiff to prepare for a switch, and that he would go down and see what he could do with the crew; this the plaintiff denies.
This evidence presented a question of fact for the jury which the court properly submitted to them for determination; and, therefore, the demurrer as to each of the defendants was properly refused. For the same reason, the court properly gave instruction numbered 2 for the plaintiff, submitting that question to the jury.
Negligence^ II. It is next insisted by counsel for defendants that the evidence showed that the plaintiff was guilty of such contributory negligence, as to prevent a recovery as a matter of law, by standing with his back to the approaching train so he could not see it. This insistence is untenable. The evidence shows the plaintiff did not know that the train was approaching and under the rules of the Railway Company and the custom of' the Coal Company, he had no reason to apprehend a train would approach him with.out notice first being given to him.
This point is ruled against the defendants.
*53irf Bisks?011 III. Counsel for defendants also insist that the plaintiff is not entitled to a recovery in this case because his injury was the result of a risk incident to his employment, that is, he assumed all risks incident to his employment, and that his liability to be knocked off of the car mentioned and being injured was one of those risks.
This insistence is untenable for two reasons. First, because this was not a risk incident to his employment. Such risks are purely incidental to the employment, and is such an injury as is liable to occur at any time during the performance of the work undertaken, unaided in any degree by the negligence of the employer. For instance, should Jones employ Brown as a blacksmith, it would be the duty of the former to furnish the latter with reasonably safe tools or appliances with which to do that work, and it would be the duty of the latter, among other things, to weld iron, and in order to do that it would be necessary for him to heat the ends of the two pieces of iron- to almost a white heat, and place them in contact with each other and hammer them together, and as a necessary incident thereto hot scales and sparks will fly therefrom, which would be liable to strike him in the eye and destroy the sight thereof; such a liability would be a risk incident to the work undertaken, in which the employer would have had no part, and which the employee assumed as an implied part of his contract of employment, and for such an injury he could not recover damages from his employer for the reason he assumed the risk. But suppose upon the other hand the injury had occurred to his eye by reason of a sliver of steel flying from a defective and dangerous hammer negligently furnished by the employer while he was pounding the iron mentioned. Such injury would be the result of negligence of the employer. [Williams v. Pryor, 200 S. W. 53.] In no sense of the word, would such an injury be the result of a risk assumed as an incident of the employment; it would have no element of assumption of risk in it, and in the absence of contributory negligence he could recover damages of the employer for the *54injury so sustained, provided, of course, Ms own negligence did not contribute thereto. But, as suggested, the plaintiff might not be entitled to a recovery in such a case, even though he did not assume the > risk. If his negligence should contribute to the injury it would be as effectual in barring a recovery as if it had contributed to that of the employer in producing it. To illustrate: Suppose he knew the defective and dangerous condition the hammer was in, and that it would in all probability inflict injury upon him if he should use it, but notwithstanding such knowledge he should use it and should be injured thereby. Under such conditions he could not recover, but not on account of the assumption of the risk, but on account of his contributory negligence.
While on this subject I might add that the risk which is assumed by the employee, which is done by implication, which arises out of and constituting a part of the contract of employment, is liable to' cause injury at any time, as an incident to the performance of his duties to the employer, wholly independent of any act on the part of the employer. In other words, a risk assumed by the employee is incident to the performance of the work and is one that is liable to inflict injury upon him while performing bis duties to the employer in the ordinary and usual manner, without the interference or negligence of the latter; but where the latter’s negligence causes the injury the assumption of risk vanishes.
The second reason before suggested why this insistence is untenable is that the evidence tended to show that it was the negligence of the defendants which caused the injury, and not the result of an assumed risk. The evidence presented a question of fact for the jury, and the court properly submitted it to them.
For the reasons stated this insistence is ruled a-against the defendants.
*55instructions *54IV. Counsel for the Railway Company contend that instructions numbered 5 and 6 given by the court for the *55plaintiff are in conflict with instructions numbered 4 and 5 given by the court for that company.
Should it be conceded that they are in conflict, and that the conflict was injurious to the Railway Company, yet it is in no position to urge that error here, for the reason that the motion for a new trial complains of no such error; it is perfectly silent on that subject. [Secs. 1841 and 2081, R. S. 1909; Matthews v. Central Coal & Coke Co., 177 S. W. 650, l. c. 653; Kansas City Dis-infecting & Mfg. Co. v. Bates County, 201 S. W. 92; Polski v. St. Louis, 264 Mo. 458; Wampler v. Atchison, Topeka & Santa Fe Railway Co., 269 Mo. 464; State v. Rowe and Sanders, 271 Mo. 88; Carver & Carver v. Thornhill, 53 Mo. l. c. 286; Sweet v. Maupin, 65 Mo. l. c. 68.]
Evidence, V. Counsel for the Coal Company insist that the court erred in refusing its motion to instruct the jury that the testimony of the witness Day respecting the conversation with Moss, offered on behalf of defendant Missouri Pacific Eailway Company, should not be considered by the jury in determining the issues between the plaintiff and the Waverly Brick & Coal Company, but that the same pertains solely to the defense arising out of the issues between the plaintiff and Missouri Pacific Eailway Company.
There was no error in this refusal. Moss was the foreman of the Coal Company, and what he said at the time to the employers of the Eailway Company about moving the cars mentioned was clearly admissible. He was the vice-principal of the Coal Company, and his testimony shows why and how the cars were moved and how the plaintiff came to be injured.
This point is ruled against the Coal Company.
VI. Counsel for the Coal Company also insist that the court erred in giving instructions numbered 4 and 6 for the plaintiff.
*56Counsel do not point to any error in either of those instructions, hut simply says that “the court erred in giving to the jury instruction No. 4 requested by . the plaintiff.” Then follows the exact language regarding instruction No. 6.
We have carefully read both of these instructions and we find no error in either of them; they follow the pleadings and are hypothesized upon the evidence introduced, which we have heretofore, in parágraph one of this opinion, held was sufficient to carry the case to the jury.
According to the following cases the evidence established the negligence of the defendants, and the instructions properly submitted the case to the jury. [Edington v. Railroad, 204 Mo. l. c. 67; Frankel v. Hudson, 271 Mo. l. c. 503; Applegate v. Railroad, 252 Mo. l. c. 188; Young v. Lusk, 268 Mo. l. c. 639; Williams v. Wabash Ry., 175 S. W. 900; Penney v. Stock Yards Co., 212 Mo. l. c. 328; Kame v. Railroad, 254 Mo. l. c. 196; Bolton v. Railroad, 172 Mo. 98; George v. Railroad, 225 Mo. 364; Charlton v. Railroad, 200 Mo. l. c. 433; Hutchinson v. Safety Gate Co., 247 Mo. 78; Koerner v. St. Louis Car Co., 209 Mo. 141; Curtis v. McNair, 173 Mo. 270; Clark v. Railroad, 234 Mo. 396; Clark v. Iron & Foundry Co., 234 Mo. 436; Baker v. Railroad, 147 Mo. l. c. 158; Taber v. Ry. Co., 186 S. W. l. c. 692; Sykes v. Ry. Co., 178 Mo. l. c. 712; Edington v. Railroad, 204 Mo. 61; Burkard v. Rope Co., 217 Mo. 481; Glaser v. Rothschild, 221 Mo. l. c. 186; Young v. Waters-Pierce Oil Co., 185 Mo. 634; O’Mellia v. Ry. Co., 115 Mo. l. c. 220; Settle v. Ry. Co., 127 Mo. l. c, 342; Pauck v. St. Louis Beef & Provision Co., 159 Mo. l. c. 475-477-8.]
For the reasons stated we are of the opinion that the court properly gave said instructions.
VII. Counsel for the Coal Company next insist that the court erred in refusing instruction number 7 requested by it, which reads;
*57Refused instruction. “If you. believe from the evidence that the defendant railway company had in force at the time of this accident a rule which required all its switching crews before making a switch at stations and in yards where it was necessary to disturb cars that were being loaded or unloaded to first give warning to all persons in the vicinity of the same of their intention to make such switch, and give them opportunity to get away from cars and out of danger before the cars were moved, and if you further believe that on the morning in question they made a switch into the yard of the defendant coal company, who were working on or about the cars that were to be removed, to get out of danger, then you are instructed that the failure of said crew to give such warning cannot be imputed to the defendant coal company, and your verdict must be in favor of said Waverly Brick & Coal Company.”
This instruction was properly refused, notwithstanding the fact that the negligence of the Railway Company could not be imputed to the Coal Company. The mere fact that the former may have neglected to give the notice to the plaintiff in no sense excused the latter from doing so. It owed the plaintiff the same duty the Railway Company owed him, and under the law it had no authority to delegate that duty to some one else. We decided the same question against the Railway Company in paragraph one • of this opinion, where it attempted to unload the burden of its sins upon the Coal Company because the latter had been in the habit of warning its employees of the intended movement of cars about the chute. Now it is trying to retaliate by showing that the former did not observe the rule read in evidence. This cannot be done. We, therefore, think the court correctly refused said instruction.
*58Excessive verdict. *57VIII. It is finally insisted that the verdict of the jury is excessive and should be reduced. After a care*58ful consideration of the record, we are of the opinion that this insistence has merit in it. It is true that plaintiff’s right leg was amputated some six inches above the ankle, and he also lost the little finger of the right hand. Of course, both of these injuries are permanent and disfigure the plaintiff, and will materially affect his earning capacity in the future; nevertheless we are of the opinion that $15,000 is excessive for these injuries when viewed in the light of former adjudications of this court. [Domineck v. Western Coal and Mining Co., 164 S. W. 567; Lessenden v. Mo. Pac. Ry. Co., 238 Mo. 247; Brady v. K. C., St. L. & C. Railroad, 206 Mo. 509; Whalen v. St. L., K. C. & N. Ry. Co., 60 Mo. 323.]
We are, therefore of the opinion that the judgment should be reversed ’ and the cause remanded on the ground that the verdict is excessive, unless the plaintiff will remit $5000 of the judgment as of the date thereof, within ten days from this date.
If that is done, the judgment will stand affirmed for $10,000 and the interest from date of the original ren-
dition thereof.
All of the judges concur; Bond, J., in result.*59CASES ARGUED AND DETERMINED BY THE SUPREME COURT OF THE STATE OF MISSOURI AT THE OCTOBER TERM, 1918.