(after stating the facts as above). 1. For many years there has been in Nebraska a statute allowing a recovery for the death of a person caused by the wrongful act of another. The action must be brought in the name of the personal representative of the deceased, and the amount recovered shall be for the exclusive benefit of the widow and next of kin, and shall be distributed as though personal property left by deceased dying intestate. That statute applies generally to persons and corporations doing the wrongful act. The statute of limitations under that statute, is two years. In 1907. the Legislature enacted that railway companies should be liable to any employé for an injury, or in case of his death to his representative, resulting from the negligence of any co-employé, officer, or agent, or by reason of any defect or insufficiency due to its negligence in its cars, appliances or machinery. Under this statute contributory negligence is no defense when slight and that of the company is gross, but the damages shall be diminished in proportion to the .negligence attributable to each, and all questions of negligence shall be for the jury. No contract of insurance or relief• benefit shall be a defense, except such contribution for relief benefit paid by the company may be deducted from the damages. The recovery shall be distributed as follows: (1) To the widow and children; (2) if no widow or children, to his parents; (3) if no parent, then to the next of kin dependent upon him.
The statute of limitations under this statute is four years. Under this statute Couture could not be liable, because it makes a railway company alone liable. If liable, it is by. reason of the older statute.
Plaintiff’s counsel invokes the rule agreed to by all that as to removals defenses cannot be considered, but whether the action is separable must alone be determined from the petition stating the cause of action. But we hold that the cause of action as stated by plaintiff is separable for the reason that the statute fixing the liability of a railway company is the later statute, and specifically and with detail determines the liability, to whom the recovery shall go, and what shall constitute a cause of action, and barring certain defenses which could be made under the former statute. And the rule is that when we have one statute of general application, and another applying to specific cases, that as to such specific cases the later statute only can be invoked. Griffith v. Carter, 8 Kan. 565; Long v. Culp, 14 Kan. 412; In re Rouse (D. C.) 91 Fed. 96, 100; State ex rel., etc., v. Hobe, 106 Wis, 411, 82 N. W. 336; Kepner v. U. S., 195 U. S. 100, 125, 24 Sup. Ct. 797, 49 L. Ed. 114; De Bolt v. Railroad, 123 Mo. 496, 72 S. W. 575; Townsend v. Little, 109 U. S. 504, 512, 3 Sup. Ct. 357, 27 L. Ed. 1012.
The holding is that the case on the petition of the railway company, a corporation, of Iowa and Illinois, was removable as against the *435plaintiff, a citizen of Nebraska, even though Couture was likewise a citizen of Nebraska.
But even though the motion to remand was erroneously overruled, the error was cured when plaintiff filed an amended petition making the railway company alone a defendant. The error was waived and Jurisdiction was conferred. Guarantee Co. v. Mechanics’ Co., 26 C. C. A. 146, 80 Fed. 766, 771 ; In re Moore, 209 U. S. 490, 496, 28 Sup. Ct. 585, 52 L. Ed. 904; Powers v. Railroad, 169 U. S. 92, 18 Sup. Ct. 261, 42 L. Ed. 673.
2. Jackson had ridden back and forth on this hand car for five months. It was a safe .place to work considering the duties of the em-ployés, and the nature of the work, and the elaborate argument, with the authorities cited, that the company owed him the duty of furnishing a safe place to work, is not pertinent to the facts of the case. It was a safe place, and from which no harm came to Jackson, except by reason of the gun, which presents another question. And as to carrying the gun, he made no objection, knew that it had been used on several trips, knew that at times it was loaded, and knew that it had been fired three times en route home on the evening in question. He made no protests, was not promised that the gun would not again be carried, and in every particular assumed the risks of the car, and all that was carried thereon. The many cases cited by plaintiff’s counsel, generally speaking, are those wherein the injured ernployé did not know of the object causing the injury, and the company did know of the same, or by the exercise of diligence could have known, such as low overhead bridges, nearness of water cranes or poles to the track, ditches or obstructions in the yards, and many other cases of like kind and principle. But such is not the question here.
The question is, assuming that Couture was negligent in taking with him on several occasions his own gun, in no wise connected with his employment, taking it for his own pleasure, and on the one occasion in question leaving it on the hand car with one load therein, Was such negligence chargeable to the company? The test of the employer’s liability is not in the fact that the negligent act of the servant was during the existence of his employment; nor is the test that his act was done during the time he was doing some act for his employer. But the test is: Was the act causing the injury done in the prosecution of the master’s business? Clancy v. Barker, 66 C. C. A. 469, 131 Fed. 161; Bowen v. Railroad, 69 C. C. A. 444, 136 Fed. 806, 70 L. R. A. 915; Railroad v. Harvey, 75 C. C. A. 536, 141 Fed. 806; Marrier v. Railroad, 31 Minn. 351, 17 N. W. 952, 47 Am. Rep. 793; Hudson v. Railroad, 16 Kan. 470.
3. That Jackson assumed the risks, and that such assumption is not modified nor controlled by the fact that contributory negligence is no defense, is clearly the settled rule. Burke v. Union Co., 84 C. C. A. 626, 157 Fed. 178; Omaha Co. v. Sauduski, 84 C. C. A. 89, 155 Fed. 897, 19 L. R. A. (N. S.) 355; Railroad v. Griffin, 85 C. C. A. 240, 157 Fed. 912; Kirkpatrick v. Railroad, 87 C. C. A. 35, 159 Fed. 855; St. Louis Cordage Co. v. Miller, 61 C. C. A. 477, 126 Fed. 495, 63 L. R. A. 551; Lake v. Shenango, 88 C. C. A. 69, 160 Fed. 887.
*4364. Without reference to whether Couture was a vice principal or a fellow servant of Jackson, and without reference to whether Fitzgerald or any other officer of the company had knowledge of how many times the gun had been carried on the hand car, it conclusively appears that Jackson had full knowledge thereof.
Conceding, as we do, that the rule is that it is the duty of the master to exercise reasonable care to provide a reasonably safe' working place for the servant, who in turn is entitled to act upon the assumption that that duty has been performed, however, if the servant knows the facts and the real situation, or if the facts and the true situation are so patent as to be readily observed by him, then the master is not liable by reason of an injury which follows. United States Smelting Co. v. Parry, 92 C. C. A. 159, 166 Fed. 407; Choctaw R. R. v. McDade, 191 U. S. 64, 67, 24 Sup. Ct. 24, 48 L. Ed. 96.
5. Couture had been foreman for four or five years. His services, and the manner of performing the same, were apparently satisfactory to the company. No complaint was at any time made by any person as to his' competency, efficiency, character, reputation, or habits. That such a servant, or official, if he can be called such, could be retained in the service without subjecting the company to the charge of negligence, need not be discussed. See the opinions of this court in the case of Weeks v. Scharer, 111 Fed. 330, 49 C. C. A. 372, and in the same case when again before this court as reported in 129 Fed. 333, 64 C. C. A. 11.
Under no construction that can be given to the testimony is the defendant company liable, and the action of the court in directing a verdict was right.
The judgment of the Circuit Court is affirmed.