аfter making the foregoing statement,- delivered the opinion of the court.
• The- first ^question presented by the plaintiff in error is founded upon an exception to the refusal of the court to instruct the jury to ,render a verdict for the plaintiff in error, on the ground that there was no evidence that the railroad company was guilty of negligence by failing to provide a reasonably safe place for the servants of the company to work in; that the cаuse of the accident was the gross negligence of the conductor in ordering the cars to be detached from the train and engine, and that such negligence was that of a fellow servant of the deceased, and did not form the basis for a recovery against the defendant. We are of opinion that, taking the whole evidence, enough was proved on the part of the plaintiff below to make it proper to send the case to the jury on the quéstion of the negligence of the company.
The next question arises in regard to the charge of the court upon the proximate cause of the accident, whether it was the *471 negligence of the defendant cоmpany in not furnishing a proper and reasonably safe place for its employés to work, or that it was the negligence of the conductor (a fellow servant of the deceased) in ordering the cars detached from thе engine. The court charged that—
“The conductor of the train was a fellow servant of the man who was killed, and if the accident was brought about solely by the negligence of the conductor of the train, then the defendant cоmpany is not hable; or if the accident was brought about by the negligence of the conductor and the negligence of the man who was killed, the defendant company is not liable. If, however, the accident was caused by а failure of the defendant company to provide a reasonably safe place- to perform the work in which the man who was killed was engaged, then the defendant company is hable in damages for the death, if it was neghgent in not providing such safe place.
“The fundamental question, therefore, for you to determine in this case is, what was the cause of this accident; what brought it about?
“If you find that this accident was caused solely by the action of the conductor in the method which he employed in putting cars on the spur at the time in question, then you should find a verdict for the defendant company, and you should not award any damages to the plaintiff in this case; or if you should find that thе dead man has through his own negligence brought about this accident or contributed to it,, then you should find for the defendant, and you should not award any damages in this case.
“ On the .other hand, if you find that the defendant company was neghgent in not рroviding a reasonably safe place for the performance of the work, you should find for the plaintiff and award her damages, provided that the negligence of the defendant in not providing such a safe place- was the cause of the accident pr contributed to the accident.
“To find for the plaintiff, it is not enough that you should find that the premises were unsafe, or that the defendant *472 company was negligent in that respect, in not providing а safe place; you must also find that the place was unsafe, and that the accident was brought about or contributed to by reason of that unsafe place. That is, if you should find that the act of the conductor was the sole, or if you should find that it was the proximate or- the procuring cause of the accident, then you should not award damages; but if you find that the accident was caused by the acts of the conductor and also by the negligence оf the defendant company in not providing a safe place to do the work, then you should find damages for the plaintiff. In other words, in order to award damages to the plaintiff, you must find, first, that the defendant company was negligent in not рroviding a safe place to do the work, and that such negligence was the cause of the accident or contributed thereto. If you- find the accident was brought about solely by the acts of the conductor, you should not аward damages. If the acts of the conductor alone did not cause the accident, but the accident was contributed to by the negligence of the defendant company by not providing a safe place to work, thеn you should award damages.”
Again:
“Was the place where the deceased was working a reasonably safe place for thé performance of the work to be done there — a reasonably, safe place, considering the character of the work to be done and the character of the premises?
“If you find it was not reasonably safe, and the defendant company was negligent in that respect, did that fact have anything to do with thе accident, or was it caused by the negligence of the conductor of the train alone?
“If it was caused solely or procured or brought about by the • negligence of the conductor, then the defendant is not liable. If - the negligence of the defendant company contributed to the accident, then the defendant is liable, provided the dead man himself was not guilty of any negligence, which contributed to the accident.”
The company now finds fault with tins charge, on the ground
*473
that it was error to chargе that unless the accident was caused solely by the action of the conductor, the defendant was liable; that “sole” cause is not synonymous with “proximate” cause,, as the action of the conductor may not have bеen the sole, although at the same time it may have been the “ proximate” cause, and if it was the proximate cause, the company would not be liable. The rule would seem to be that if the negligence of the company had a share in causing the injury to the deceased, the company was liable, notwithstanding the negligence of a fellow servant contributed to the happening of the accident.
Grand Trunk Railway Co.
v. Cummings,
We think the defendant received no prejudice from the charge' as given, taken in connection with the. defendant’s requests to charge, which were complied with. If the defendant had desired to obtain a more specific chargé in relation to the distinction between “sole” and “proximate” cause оf the accident, as applied to the negligence of the. conductor, the court should have had its attention' specifically drawn to the objection to the word “sole,” and the particular freedom from liability asserted if the negligence, of the conductor were the proximate cause of the accident, as distinguished from the sole cause. A general exception to the charge as given would not raise the question.
Spring Co.
v.
Edgar,
A third question arises upon the admission of evidence. Certain of the witnesses for plaintiff were called to prove that, in their opinion, the company had not furnished a reasonably safe place for its employés to work in. This was objected to on the 'ground that the witnesses testifying to it .were not properly experts and should not be permitted to testify. One witness, who testified that the buffer was not a reasonably safe and proper one, said that he had been railroading for fifteen years, following the business of trackman during that time; that it was his business to go over the track and see if it was in proper shape, and that he had had something to. do with the construction of a railroad; 'that ho was familiar with the construction of tracks, trestles and buffers; that that was what he had had to do; that overhead structures came under another department; that he considered it unsafe for the reason that the buffer would afford an obstruction to the wheels and *475 that the car would slide off the tracks and go over into the ravine.
Another witness said that he had been working on railroads for twenty years, and that from his experience he had had occasion to become acquainted with struсtures over tracks, over bridges and highways, and buffers at the end of chutes and tracks, and as to the control of the cars, their- operation and the operation of the brakes on the cars, the stopping of cars, the resisting power of.buffers, etc. He said that, in his opinion, the tramway house was too close to the top of a car, and that it was an impediment to the operation of the handbrake of the car, and that the buffer at the end was not an effective obstruction. Evidence was given by other witnesses, by depositions, in regard to the structure over the railroad track and the. character' of the buffer.
In the cases of all the witnesses, • we think the question of thе admissibility of their evidence was one within the reasonable discretion of the trial court, and that the discretion was not abused. All the witnesses had had practical experience on railroads, and were familiar with structures аnd the character of buffers mentioned in the evidence.- There was certainly enough to call upon the court to decide upon the admissibility of their opinions under these circumstances, and we ’ ought not to interfere with the decision, of the trial court in this case.
Spring Co.
v.
Edgar,
•There is no error in the record and the judgment is
Affirmed.