The opinion of the court was delivered by
Martin, C. J.:
I. The principal question is whether the Rock Island train was so far under the control of the Union Pacific company that the negligence of the Rock Island crew must be imputed to the Union Pacific company, the defendant company being thereby exonerated from liability. Counsel for defendant seek to cast the blame upon the train-dispatcher and operators in failing to stop the following train, particularly at Bonner Springs, and upon the Union Pacific crew in taking in the tail-lights, and failing to keep a brakeman on the rear end of the train, supplied with lanterns and torpedoes, as required by the rules. It may be that under the evidence the train-dispatcher and operators should be treated as the joint employees *608of the- two companies, and the servants of the particular company whose business they were attending to for the time being. (H. & St. J. Rld. Co. v. Martin, 11 Bradw. 386, 390 ; W. St. L. & Pac. Rly. Co. v. Peyton, 106 Ill. 534, 540; N. & C. Rld. Co. v. Carroll, 6 Heisk. 347, 352, 354; Vary v. B. C. R. & M. Rld. Co., 42 Iowa, 246.), We need not, however', so decide in this case, for the evidence tends to show that the Rock Island train was coming into the junction at an unusual speed, considering the fog, the knowledge of the engineer and fireman that the Union Pacific train was behind time, but had not lost its rights, and the rule that “first-class trains, when behind time, must not' exceed card time unless the condition of track, weather, and all circumstances warrant their doing so with safety.” There is some conflict in the testimony as to the distance that the Union Pacific train might have been seen through the fog. It was daylight, and all agree that the train might have been seen at some short distance, yet it was not observed at all before the collision. It being known that the Union Pacific train was' behind time when leaving Lawrence, that it had stops to make at stations where the Rock Island train was not expected to stop, and that the fog would probably prevent it*from making up time, a reasonable exercise of judgment on the part of the Rock Island engineer should have indicated to him that the Union Pacific train could not be far ahead, and that he should run very cautiously. The Union Pacific company was not a party to this suit, and therefore was not called upon to justify or extenuate the conduct of its crew or that of the train-dispatcher and operators. It would seem from the evidence introduced that the greater curability rests upon them ; but this would not excuse the *609negligence of the crew of the Rock Island train, nor. relieve the defendant company from liability for an injury caused thereby. (C. K. & W. Rld. Co. v. Ransom, ante, p. 559.) The speed of the Rock Island train at the time of the accident was under the direct control of the engineer, and to declare that-he was then the servant and under the exclusive control of the Union Pacific company would be a fiction which we are not warranted in creating out of the circumstance that the train was running upon the Union Pacific track subject to detention at telegraph stations by the train-dispatcher and operators employed by the Union Pacific company. In Webb v. P. & K. Rld. Co., 57 Me. 117, 135, it was held that, when one railroad company is by permission using the track and easement of another, the former is held to observe such precautions for the safety of the public at a crossing as shall be fully equivalent to those required by reasonable care and prudence of the latter. Edward Jackson, while occupying the smoker on the Union Pacific train, cannot be regarded in the light of a trespasser as to the Rock Island company. The passenger and the train had a right to be there, and Jackson was entitled at least to a measure of protection equal to that of a person crossing the track upon the highway. It was the duty of the Rock Island engineer to be on the lookout for the train upon which Jackson was a passenger. No diligence on the part of the train-dispatcher or the operators could have averted or rendered less disastrous a collision consequent upon the failure of the engineer to keep a proper lookout for obstructions on the track, or upon the running at a reckless speed at a place where great caution was necessary to avoid disaster.
A general servant of one master may become the *610special servant of another for a particular purpose, so that the negligence of the servant in the particular business may not be imputable to the general master. This exemption of the general master from liability arises when the special master lias the full and independent control of the servant for the time being. The principle is analogous to that of the exemption of the owner of a building or other structure in process of erection for an injury resulting from the negligence of the seryant of an independent contractor to whom the work has been let, the servant in such case not being deemed the servant of the owner; and cases of this character are cited by counsel for plaintiff in error as being applicable here. In Byrne v. K. C. Ft. S. & M. Rld. Co., 61 Fed. Rep. 605, it was held that a railroad company is not responsible for negligence in the operation of an engine when, at the time of the casualty, the engineer and the crew by which it was operated were hired to and under the control of another company, and this on the principle that, though the servant may remain the general servant of the master, yet if the master has parted with the power of controlling him in the work in which Tie has engaged, the master will not be responsible for his negligence. Smith v. St. L. & S. F. Rly. Co., 85 Mo. 418, was decided upon the same principle by three of the five judges, the other two dissenting upon the ground that this doctrine was not applicable to the facts in the case. There the defendant had no track between Pacific Junction and St. Louis, but its trains were transported over the Missouri Pacific track between those places by locomotives, engineers and firemen furnished by the Missouri Pacific company, although the other trainmen were employed and paid by the defendant company. No business was transacted by *611the defendant company on its own account between Pacific Junction and St. Louis, but Missouri Pacific passengers were taken upon and permitted to alight from its trains at the intermediate and terminal stations. The plaintiff’s intestate purchased a ticket from the Missouri Pacific company at St. Louis for the town of Webster, one of the intermediate stations, and in alighting at that place he was injured and killed by reason of the failure of the train to stop long enough for that purpose. These facts were held by the majority of the court, with at least a fair show of reason, to establish that as to this Missouri Pacific passenger the servants of the defendant company were under the control of the Missouri Pacific company in the transaction of the passenger business of the latter, and that it alone ought to be held liable. We need not consider, however, whether the decision of the majority or the dissent of the minority was based upon the better reason, for, in any event, the facts are essentially dissimilar from those in the present case.
II. The objections to instructions 4 and 5, respectively, given to the jury, may be considered together. It is said that each is complete in itself, and that neither embraces all the elements necessary to a recovery. It is often difficult to frame a single instruction which shall embrace all the phases of a complicated case, but this is generally unnecessary. An instruction to find for one party or the other, embracing fewer conditions than those necessary to a recovery, would, of course, be erroneous ; but sometimes a part only of the conditions alleged or proved may be sufficient to justify a recovery. It is claimed in argument that instruction 4 singles out the circumstance that the collision occurred in a thickly settled community, *612while the Rock Island train was running at a high rate of speed, and makes this the basis of a verdict for the plaintiff; and counsel say that the place was not thickly settled. This, however, was a question of fact for the jury, and we cannot say that there was no evidence tending to support it. But, suppose this condition should be left out of consideration altogether : the instruction would still seem sufficient, for it embraces all the essential elements of negligence to justify a recovery. It is also said that instruction 5 was unfair to the plaintiff in error, because it was based upon the testimony and theory of the defendant in error, and did not refer in any manner to the faults of the train-dispatcher and operators and the crew of the Union Pacific .train. The negligence of one or all of these, however, would not absolve the Rock Island company from liability for the negligence of its own servants, and in giving instructions upon the theory of the plaintiff below it was not necessary for the court to explain the theory of the defense. This was properly done elsewhere in the instructions.
III. Some adverse criticism is bestowed upon that part of instruction 6 to the effect that "the jury are not bound to take the testimony of any witness as absolutely true.” It would have been better to omit this 'clause, or to qualify it by adding, "if there is reason to believe it false or mistaken,” or words of similar import. The objectionable clause is of the character criticised by Mr. Justice Johnston, in C. B. U. P. Rld. Co. v. Andrews, 41 Kan. 370, 382 ; but, for the reasons there stated, we do not deem the error to be so material or prejudicial as to justify the reversal of the judgment.
IV. The first clause of instruction 20 requested by the defendant was unobjectionable. The second *613clause, if it may be called such, is imperfect iu that it leads to no conclusion; but the proposition was fully covered by other instructions given by the court at the request of the defendant below, either as asked or in a modified form, and therefore no error was committed in refusing it.
V. Instruction 22 requested by the defendant below might have been properly given. The jury, in the consideration of the conduct and motives of men, may take into account the instinct of self-preservation and the known disposition to avoid injury. (Way v. Ill. Cent. Rld. Co., 40 Iowa, 341, 345.) . In some cases such an instruction may be necessary, especially where a fact is involved in doubt, and there is no direct testimony upon the subject. In such a case presumptions are often important. In this, however, direct proof was available, and it appeared that the Rock Island locomotive collided with the Union Pacific train before the engineer knew that it was there. The inference of negligence arising against him is therefore very strong, and the presumption of care and caution from the instinct of self-preservation would have little bearing upon the case, and the court •committed no material error in refusing the instruction. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586.)
The judgment must be affirmed.
All the Justices concurring.