for the plaintiff, to state what the engineer in charge of the engine said and did in extricating the body of the child from under the wheels of the car. The court held, the statements of the engineer were admissible as a part of the res gestæ: Waldele v. N. Y. C. & H. R. R. Co., 95 N. Y. 284.

McLeod v. Ginthers, 80 Ky. 399, was a suit for damages resulting from the willful neglect of appellant's servants in sending dispatches to two conductors of trains which were to run on the same day over the same part of defendant's road. The dispatches were alike and ambiguous, and construed differently by the two conductors. The result was a collision of trains, and the death of Ginther, plaintiff's intestate, who was an engineer on one of the trains. Fish, the conductor on the same train, within a few seconds after the casualty, remarked to the engineer of the other train: "I had until 10:10 to make Beards." It was held by the court that it was important to show what Fish and Ginther thought of the meaning of the dispatch while they were acting under it, as the negligence in this case consisted of the wording of the dispatch so as to mislead them, and that the declaration of Fish, having been made within a few seconds after the accident, in view of the wrecked trains and amidst the search for persons whose fate was then unknown, and while Ginther who lived but thirty minutes was dying from the injuries he had received, was admissible for that purpose as a part of the rcs gesta. The court said: "He had no time to contrive or devise a falsehood by which to exonerate himself from blame, and his declaration was so connected with the circumstances then surrounding him, and which form a part of this case, as to give it importance in determining the fact that he and the engineer had run the engine in the honest belief that they had until ten minutes after ten o'clock to reach Beards station. . . . . If we ignore the credit to which Fish may have been entitled as a truthful man, his declaration made under the circumstances impresses the mind with confidence in its. truth, and is entitled to be given its weight as any other fact going to make up the transaction."

The statement of Leverett was made immediately after he was run over, and while the wrong complained of was incomplete, he being still under the car, and was a part of the res gestæ, and fairly go to explain the cause of the condition in which he was at the time it was made. It was an emanation of the act in question, and so connected with the cause of

his injuries as to preclude any idea that it was the product of calculated policy. Aside from any credit due Leverett for veracity, the circumstances immediately preceding and connected with his statement impress the mind with confidence in its truth. It was competent evidence.

It is next urged that the trial court erred in admitting evidence as to the dependence of plaintiff, Sallie L. Leverett, on the deceased for maintenance and support. The proof was, the deceased was her son; that he was about twenty-three years old at the time he was killed; and that he had never been married, and that he left a mother, brothers, and a sister, but no father, surviving him.

The evidence objected to was, that plaintiff was poor, and deceased lived with and supported her; and that she was dependent on him for support and maintenance. This evidence was admitted by the court over the objection of defendant.

In actions of this character, the statute says: "The jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person." Under the statute, the plaintiff, being next of kin of the deceased, had a right to show the pecuniary damage suffered by her by reason of his death. The effect and object of the evidence objected to was to show she had suffered a pecuniary damage by the death of her son, and for that purpose it was admissible: Ewen v. Chicago etc. R'y Co., 38 Wis. 622; Barley v. Chicago etc. R. R. Co., 4 Biss. 434; Cook v. Clay Street Hill R. R. Co., 60 Cal. 609; Opsahl v. Judd, 30 Minn. 126.

In instructing the jury, the court told them, if they found for the plaintiff, they should assess her damages at whatever sum they believed would compensate her for the pecuniary loss she had sustained; and that the law prescribes no rule for the measurement of damages, except that the jury should give such damages as they should deem a fair and just compensation with reference to the pecuniary injuries resulting from the death of plaintiff's intestate to his next of kin. The damages allowed by the jury were reasonable, and it does not appear that appellant was prejudiced, or could have been prejudiced, by the evidence objected to under the instructions of the court.

It is contended by the appellant that the first, second, third,

and eighth instructions given by the court to the jury, at the instance of the plaintiff, are erroneous. The instructions informed the jury that when appellant employed plaintiff's intestate to work as a switchman in its yards at Arkansas City, it assumed a duty to him to construct and maintain its roadbed and tracks in a reasonably safe condition, so as not to unnecessarily enhance the dangers attending upon the employment; that he assumed the natural risks of his employment, but did not assume the risks arising from the negligence of the appellant in constructing a defective road-bed or track; and that if the injuries received by plaintiff's intestate were caused by the defective condition of appellant's road-bed or track, plaintiff was entitled to recover such pecuniary damages as plaintiff sustained by the death of her son, unless the injuries were the result of the contributory negligence of her intestate. In this connection, the court further instructed the jury that if plaintiff's intestate entered and continued in the employment of defendant, knowing the dangerous condition of the road-bed, plaintiff was not entitled to recover for an injury resulting from the condition of the road-bed; and that if the injury received by him occurred on account of the steep banks of the road-bed, or on account of the lack of ballasting on the track, plaintiff could not recover, if he knew this was the condition of the road-bed at and before the time of the injury; and that if at the point he was injured the road-bed was in a defective and dangerous condition, and he knew it, plaintiff could not recover for an injury occasioned by such defective road-bed.

Construing these instructions together, appellant was not prejudiced by any of them. In employing the deceased, the appellant assumed the duty of exercising reasonable care and prudence to provide him a safe place and tools to exercise the employment, and to maintain the place and tools in a reasonably safe condition during the time for which he was employed; and the deceased assumed the risks and hazards which ordinarily attend or are incident to the service he was engaged to perform. The negligence of appellant to supply a safe road-bed, or place and tools for deceased, was not a hazard and risk usually or necessarily attendant upon or incident to the performance of his contract; nor was it one which the deceased, in legal contemplation, is presumed to have assumed, for the obvious reason that he was to use such road-bed, place, and tools as were to be provided by appellant, and had and

was to have nothing to do with constructing the road-bed and place, and purchasing the tools, or with the preservation or maintenance of such road-bed and tools in suitable condition after they were supplied. This risk is not within the contract of service. If it was, appellant would have been relieved of all pecuniary responsibility for failing to perform the obligations he had assumed. Such a doctrine would be subversive of all just ideas of the obligations arising out of such contracts of service, and would withdraw all protection from such employees. A doctrine that leads to such results is contrary to reason, and unworthy the sanction of any court: St. Louis etc. R'y Co. v. Higgins, 44 Ark. 300; Davis v. Central Vermont R. Co., 11 Am. & Eng. R. R. Cas. 175; 45 Am. Rep. 590; Missouri Pacific R'y Co. v. Lyde, 11 Am. & Eng. R. R. Cas. 190; Texas-Mexican R'y Co. v. Whitmore, 11 Id. 199; Galveston etc. R. R. v. Lempe, 11 Id. 201; Atchison etc. R. R. Co. v. Holt, 11 Id. 211; Atchison etc. R. R. Co. v. Moore, 11 Id. 247, 252; Brown v. Atchison etc. R. R. Co., 15 Id. 271; Elmer v. Locke, 135 Mass. 575; Pierce on Railroads, 370; Hough v. Railway Co., 100 U. S. 213.

While there was an implied contract between the appellant and the deceased that the former should furnish and provide for deceased a safe place and road-bed in and on which to perform the labors required of him, yet the failure of appellant in that regard furnished no excuse for the conduct of the deceased, if he voluntarily and knowingly incurred the risks and dangers of performing the labors of his employment on a defective and dangerous road-bed. If he had, at and before he was injured, full knowledge of the dangerous character and defects of the road-bed, or place on and in which he was required to work, he had the right to decline to work, or require that the road-bed or place should first be made safe; but if he did not, and with this knowledge entered upon the work, he assumed the risk, and should bear the consequences: L. R. & Ft. S. R. R. Co. v. Duffey, 35 Ark. 613; Fones v. Phillips, 39 Id. 36; Gibson v. Erie R'y Co., 63 N. Y. 452; Wood on Master and Servant, secs. 335, 372; Pierce on Railroads, 379.

A servant is not required to inspect the appliances of the business in which he is employed, to see whether or not there are latent defects that render their use more than ordinarily hazardous, but is only required to take notice of such defects or hazards as are obvious to the senses. The fact that he might have known of defects, or that he had the means and

opportunity of knowing of them, will not preclude him from a recovery unless he did in fact know of them, or in the exercise of ordinary care ought to have known of them. He is not bound to make an examination to find defects. There is no such legal obligation imposed upon him. That is the duty of the master. The servant is not bound to search for dangers, except those risks that are patent to ordinary observation; he has a right to rely upon the judgment and discretion of his master, and that he will fully perform his duty toward him: Fort Wayne, Jackson, and Saginaw R. R. Co. v. Gildersleeve, 33 Mich. 133; Hughes v. Winona and St. Peter R. R. Co., 27 Minn. 137; Reber v. Tower, 11 Mo. App. 203; Wood on Master and Servant, sec. 376, and authorities cited.

The circuit court instructed the jury that an employee is not bound by a rule of the company not brought to his attention, or which is habitually violated with the knowledge of his superior officers, and without any effort on their part to enforce it, or where the usage and practice of the company would tend to mislead him in the violation of the rule. Appellant insists that this instruction is erroneous; but we see no error in it: Fay v. Minneapolis & St. L. R'y Co., 11 Am. & Eng. R. R. Cas. 193.

Appellant asked the court below to instruct the jury to the effect that if the defects in the road-bed where Leverett was thrown down and mortally injured by its cars were easily and readily seen, and Leverett had been accustomed to working there, and in attempting to uncouple cars while in motion received the injuries which caused his death, plaintiff was not entitled to recover. And the court refused to give the instruction. Appellant insists that the court erred in so doing.

Contributory negligence is a matter of defense. It is not presumed, but must be proved, and the burden of proving it rests on defendant: Hough v. Railway Co., 100 U. S. 225; Burlington, Cedar Rapids, and Northern R. R. Co. v. Coats, 15 Am. & Eng. R. R. Cas. 265.

We have failed to find, and appellant has not called our attention to, any evidence which would have made the instructions asked for by it, and refused by the court, applicable or appropriate. There was no evidence, so far as we have discovered, to prove that the deceased, before he was hurt, knew or ought to have known of the condition of the track where he was fatally injured. There was evidence tending to prove that he was employed to work, and had been working, in a