The opinion of the court was delivered by
Maktin, C. J.
: The court committed material error in some of the instructions given to the jury. There was no question in the case about machinery or appliances, but it is the duty of a railway company to exercise ordinary care to provide its employees with a reasonably safe place to work ; and in the present case this rule would apply to the side-track where Chambers was expected to make the coupling. This track was left by the company in an incomplete condition for want of ballast of earth or any other material; but it was error to say that it should be so kept as to be “ least likely to cause injuries, so far as this can reasonably be done.” This would be to impose upon the company the highest degree of diligence, whereas the law requires only ordinary care as to its employees. *666Railway companies, sometimes, at terminal and other important stations, plank their tracks or fill with cinders or other ballast between the ties from one end to the other, so as to make a level surface, and this condition would probably be “least likely to cause injuries” to brakeman coupling cars upon the same; but the law does not impose this high degree of diligence upon railway companies at every place where brakemen may be required to couple cars. The definition of contributory negligence contained in instruction 4 is erroneous, and in some cases might be misleading, and it should not have been given. But perhaps the instruction most likely to mislead is the sixth. It first brought into the case the suggestion of “malicious and wilful or wantonly reckless” conduct on the part of the railway company, for there was no evidence to justify such an imputation. (K. P. Rly. Co. v. Peavey, 29 Kan. 169, 180; K. C. Ft. S. & G. Rld. Co. v. Kier, 41 id. 661, 670.) The closing sentence of the instruction last quoted in the statement is also objectionable. It was proper to instruct the jury that the measure of care required of Chambers by the law was only such as an ordinarily prudent person would have exercised under the same circumstances and conditions ; but the law does not authorize a gradation of the degrees of care and prudence required according to any particular classification of employees. One class is governed by the same law as every other as to the degree of diligence to be exercised. In other words, the same law governs all.
There was no error in overruling the demurrer to the evidence, nor the motion for judgment in favor of the railway company on the answers of the jury to the particular questions of fact. Whether the railway company exercised ordinary care, and whether *667Chambers was guilty of contributory negligence such as to preclude his personal representative from a recovery on account of his death, were questions of fact to be submitted to the jury under proper instructions ; but as the court erred in this respect the judgment must be reversed, and a new trial awarded.
All the Justices concurring.