after stating the case, delivered the opinion of the court.
The Circuit Court of Appeals held that as to the first question which the Circuit Court declined to allow to be put to Hall the answer would have been purely an inference based upon facts previously proven, and аn inference which it was for the jury to draw from those facts, and therefore that it was properly excludеd; that as to the second question addressed to that witness and excluded, namely, whether the cut was not cоnstructed as cuts were ordinarily constructed on roads running through such places, the court did not err in its exclusiоn, because railway cuts are not made upon any recognized pattern, and the testimony offerеd would have been no aid to the jury without further testimony showing that the surroundings of other cuts were substantially similar to those of the cut where the accident happened, which.would have involved collateral issues tending tо confuse and mislead ; and that it was within the discretion of the trial court to permit leading questions to be prоpounded for the purposes of. impeachment. It was also held that.the Circuit Court did not err in refusing the first instructiоn asked for defendant, because the burden of proof was not upon plaintiff to show in the first instance thаt he was in the exercise of due care at the time of the accident; that the second instruction was properly refused because it confused two distinct propositions, that relating to the risks assumed by an еmployé in entering a given service and that relating to the amount of vigilance that should be exercised undеr given circumstances, and because furthermore the instruction was not justified under the evidence ; that while it was true that persons employed on lines of railway constructed at the foot of mountain ranges are necessarily subjected to greater dangers .than those employed upon *457 railroads passing over prairie country, and that an engineer on a line running at the foot of a mountain range assumes the increased risk due to this fact, yet the employé does not assume the risks and dangers that are caused by negligenсe on the part of the company, but has a right to expect that the company will construct and. mаintain its track and roadbed in such a condition as not to subject its employés to unnecessary risks and dangers, and that it is the duty of such company to use due care to construct its roadbed at a place Wherе it crosses a waterway so that it may be reasonably safe for use, and if it has not done that, a jury may be justified in finding negligence on its part.
And also that there was no error in declining to give the third instruction, inasmuch as it was fully cоvered in the charge ; nor in refusing the fourth instruction because it was not proper under the evidence; nоr in those parts of the charge complained of.
In our opinion the Circuit Court of Appeals cоmmitted no error in its rulings and in affirming the judgment of the court below, and we are. not inclined to restate the reasons for the Conclusions reached by that court, which are fully set forth in the case as reported.
The genеral rule undoubtedly is that a railroad company is bound to provide suitable and safe' materials and structures in the construction of its road and appurtenances, and if from a defective construction therеof an injury happen to one of its servants the company is liable for the injury sustained. The servant undertakes the risks of the employment as far as they spring from' defects incident to the service, but he does not takе the risks of the negligence of the’master itself. The master is not to be held as guaranteeing or warranting absolute safety under all circumstances, but it is bound to exercise the care which the exigency reasonably demands in furnishing proper roadbed, track, and other structures, including sufficient culverts for the escape оf water collected and accumulated by its embankments and excavations.
Hough
v.
Railway Co.,
It is the duty of the compаny in employing persons to run over its road to exercise reasonable care and diligence tо make and maintain it fit .and safe for use, and where a defect is the result of faulty construction which the emрloyer knew or must be charged with knowing, it is liable to the employé if the latter use due care on his part, for injuriеs resulting therefrom.
There are cases in which, if the employé knows of the risk and the danger attendant upon it, he may be held to have taken the hazard by .accepting or continuing in the employment; but this case, as left to the jury under the particular facts, is not one of them. This engineer was entitled to rely upon the comрany as having properly constructed the road, and to presume that it had made proper inquiry in respect of latent defects, if there were any, in the construction, for such was its- duty, and he cannot be held to knowledge of the danger lurking in this narrow seam in the mountain side by whose inequalities its sinuosities were hidden. We agree with the Circuit Court of Appeals that the Circuit Court properly instructed the jury in this regard, and that no error was committed in allowing the jury to consider the evidence in the light of their own judgment and knowledge, taking into consideratiоn all the facts bearing on the defective construe^ tion in question.
Judgment afivrmed.