I dissent. The primary duty of the employee is obedience to the orders of the master. He is on a wholly different footing from the foreman, who is charged by the employer with the duty of directing the employees, even as to the manner in which the particular act shall be done. It is bound to furnish and maintain suitable appliances for the work which it requires the employees to perform. This includes instrumentalities, as well as mechanical devices. (White on Personal Injuries, sec. 262; Wallace v. Tremont Ry. Co., 140 La. 873, L. R. A. 1917D, 959, 74 South. 179; 3 Labatt on Master and Servant, sec. 1107; Illinois Central Ry. Co. v. Langan, 116 Ky. 318, 76 S. W. 32; Young v. Lusk, 268 Mo. 625, 187 S. W. 849.) Whether the employer has furnished sufficient help is ordinarily a question for the jury. (4 Labatt on Master and Servant, sec. 1309; Chicago etc. Ry. Co. v. Cronin (Okl.), 176 Pac. 921; Pittsburgh etc. Ry Co. v. Edwards (Ind.), 129 N. E. 310; Patterson’s Railway Accident Law, sec. 297.) The true rule is: The employee never assumes risks growing out of the master’s negligence, unless he knows of the failure of duty and consequent dangers, or the failure of and the danger therefrom are so obvious that an ordinarily prudent man in Ms situation would have observed the one and appreciated the other. (Carter Coal Co. v. Howard, 169 Ky. 87, 183 S. W. 244; Chesapeake etc. Ry. Co. v. De Atley, 159 Ky. 687, 167 S. W. 933; Id., 241 U. S. 310, 60 L. Ed. 1016, 36 Sup. Ct. Rep. 564; Illinois Central Ry. Co. v. Langan, supra; Thompson on Negligence, sec. 4878.)
It required, as a general rule, from six to eight men to handle the rail with safety. On this occasion, there were present and participating in the lifting and carrying of tbe rail *222the plaintiff and three other men, including the foreman, who, standing in place of the master and directing the operations, apprehended no dangér on account of the diminished force. Under these circumstances, he, for the company, assumed all the risk, and not the plaintiff. It was, at least, a situation where the probability of danger was such that prudent men might entertain different views. Section 6607 of the Revised Codes of 1921 (Chap. 29, Laws 1911) reads as follows: “An employee of any such person or corporation so operating such railroad shall not be deemed to have assumed any risk incident to his employment, when such risk arises by reason of the negligence of his employer, or of any person in the service of such employer.”
Rehearing denied June 5, 1922. Petition for writ of certiorari denied by the supreme court of the United States on November 13, 1922.The common-law rule in force before the Act became effectual is correctly stated in the opinions of this court cited in the majority opinion. The Act, however, relieves the employee of that burden, except in cases where the operation involves danger so 'glaring that no prudent person would take the chances. In Young v. Lusk, supra, it was held that, even in an action under the federal Employers’ Liability'Act, the employer could not rely upon the defense of assumption of risk in case he himself had been negligent.