"Paragraph 1. It is the duty of a railroad company to exercise ordinary care to keep and maintain its railway track in such condition that it will be reasonably safe to operate its trains thereon in the ordinary and usual carrying on of its business as a railway corporation; and a locomotive engineer employed by a railroad company has the right to rely upon the assumption that the railway track is kept and maintained by the company in a reasonably safe condition; and he may rely upon said assumption unless he knows of a defect in the railway track, or unless in the discharge of his duty he must necessarily have acquired such knowledge.
"Par. 2. `Ordinary care,' as the term is used in the foregoing paragraph, and in every place it may be used in this charge, is that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances.
"Par. 3. Wherever you may find in this charge the term `negligence' used, it will mean a failure to exercise that degree of care that an ordinarily prudent person would exercise under the same or similar circumstances.
"Par. 4. All the facts necessary to be established to entitle the plaintiff to recover in this case must have been established by a preponderance of all the testimony, for you are instructed that the burden of proof is upon him throughout the case. If such facts have not been so established, the defendant is entitled to your verdict.
"Par. 5. If an employé in the discharge of the duties in his line, voluntarily takes a place which he is not required to take, he assumes the risk which may attach to such place, and which is greater than the risk attached to the place he may have taken by reason of his employment.
"Par. 6. Now, if you believe from the evidence, by a preponderance thereof, that, as alleged in plaintiff's petition, he was employed as a locomotive engineer by the defendant company, and that in the discharge of his duty as such locomotive engineer, his engine —the train which he was assisting to pull with his engine—was derailed and wrecked as alleged, and that such wreck occurred because of the worn or defective condition of the defendant's railroad track at the point where the train was wrecked, or because said track was in bad repair, and that defendant company had not used ordinary care in keeping and maintaining said track at said place in a reasonably safe condition for moving its trains thereon, and that the plaintiff was injured in said wreck, and you do not find for the defendant under other paragraphs of this charge, then you will find for the plaintiff damages in such sum as the evidence may establish and as you believe will compensate him for the injuries he sustained, not to exceed the sum of $25,000, for which amount he has sued in this case. If, under any branch of this charge, you find damages for plaintiff, in assessing same you may take into consideration the injuries he received
their extent and character, his diminished capacity for labor, as well as the mental pain and anguish he suffered, if he suffered any.
"Par. 7. If you find from the evidence that the defendant exercised ordinary care in keeping and maintaining its railway track at the point where the wreck occurred, or if you believe that said railway track at the point where the wreck occurred was in a reasonably safe condition for the purposes of running defendant's trains thereon at the time the wreck occurred, then the defendant is entitled to a verdict, notwithstanding the fact that the train was wrecked, and that the plaintiff received injuries by reason thereof.
"Par. 8. A railway locomotive engineer assumes the risk ordinarily and naturally incident to the particular branch of the business in which he may be employed, not created and brought about by the negligence of his employer; and he also assumes those risks that are obvious, and known to him in the discharge of his duty, or he must necessarily have acquired in the discharge of the same; but he assumes no greater risk than that. So if the plaintiff, in the making up of the wrecked train at its starting point, voluntarily took position with his engine between Engineer Zook's engine and the train of cars, when he had the right to take the position at the head of the train, and place Engineer Zook with his engine next to the train of cars, and such position was one of greater risk or danger than that of the head engine, and that, running with the train so arranged, the same was wrecked, and the plaintiff injured; and if, but for the fact of the plaintiff voluntarily taking such place of greater risk and occupying the same at the time of the wreck, he would not have received any injury—then the greater risk, if there was any greater one, was assumed by him, to the extent his action made the risk greater, and the defendant company is not liable in damages to him for any injury he may have received under such conditions, so far as such greater risk may have occasioned the injuries, if it did occasion them.
"Par. 9. Unless you believe from the evidence that the track at the place where the wreck occurred was in bad repair, or was worn and defective, and that at the time of the wreck the defendant company had not exercised ordinary care to keep and maintain the track at that point in a reasonably safe condition for running its trains thereon, you cannot find for the plaintiff.
"Par. 10. As has been said, it is the duty of a railroad company to keep and maintain its tracks in a reasonably safe condition for the running of its trains thereon, and that its employés have the right to rely upon the assumption that it does so, and they are not required to exercise ordinary care to see if the company has done so, and they do not assume the risk arising from the failure of the company to do so, unless they know of the failure, or unless, in the discharge of their duties, must necessarily have acquired the knowledge. So if those incidents took place as spoken of in paragraph 6 of this charge, the plaintiff is entitled to recover such damages as you believe will compensate him for his injuries, unless you should find against him under other paragraphs in this charge, or under these instructions taken as a whole.
"Par. 11. It is the duty of the plaintiff, Sage, to exercise the care that an ordinarily prudent person would take under the same or similar circumstances in operating his engine while running over defendant's track, and, if he failed to exercise such care at the time he was injured, he was guilty of contributory negligence, and therefore, if at the time of the wrecking of the train and the injury to him, he was not exercising such care, and his injuries resulted from such want of the exercise of ordinary care, he cannot recover in this case.
"Par. 12. A railway corporation is liable for all damages for injuries sustained by an employé thereof, while engaged in the work of operating its engine, by reason of the negligence of any other servant of the corporation, and the fact that such servant or employé is a fellow servant with the injured employé does not impair or destroy such liability. Hence, should you find that the plaintiff voluntarily took a position in the train of greater risk than the position to which he was entitled, and in such position of greater risk and in the wrecking of the train he was injured, and you also find that the defendant company exercised ordinary care in keeping up and maintaining its railway track at the place of the wreck in a reasonably safe condition, or that the track was at the time in a reasonably safe state for...
