Price, J.
It is disclosed by the record- that this ‘ case has been thrice tried to a jury, each trial resulting in a verdict and judgment for the plaintiff.. The . judgments rendered on the first and second verdicts were reversed by the circuit court, but it affirmed the last, judgment, and we have the controversies of the last trial before us on the petition in error and a bill ■ of exceptions, which contains all the evidence and the numerous questions of law which arose during the trial.
The assignments of error are many, and they have ■ received our careful consideration. We discover no substantial error in the admission or exclusion of -evidence, and all proper instructions asked by the railway company were either given in terms, or in sub- •• stance in the general. charge. They were not asked • to be given before argument to the jury commenced. and. therefore no legal right of plaintiff, in error in. that respect has been violated. .
Defendant’s special instructions four and seven were not given as requested, nor can it be said that, their substance is embraced in the general charge. But the omission is not error,, because the principle sought to be impressed by each request seems to be: predicated upon the assumption of an important fact which was in dispute between the parties. . This prominently appears in request seven, found in the statement of this case, it opens as follows: “If you find from the evidence that the talk between Marshall (the master mechanic) and Rigby about putting in the plug in the heater, was merely determining the-best mode of putting the same in condition for use,, until the ‘pop valves’ came, they having equal-lmowledge of the defect, and the safety of using the samoin that condition; and that Marshall telegraphed Rigby to get car No. 22 ready for use; and under Marshall’s order Rigby went ahead and used the-heaters, assuming all the direction-as to-its tose in that condition, the -mode of building the fire, and- thawing ■ out of the pipes, and had sole charge of the work, then I say to you that the doctrine of promise to repair defective machinery, would not apply to him. * ■ *. *”
The railway company introduced evidence tending-to prove that Rigby had skill and knowledge concerning the system of heating, equal and even superior to that of Marshall, the master mechanic, and that he-was able to act, and in this case, did act, on his own knowledge, skill, and judgment. However the plaintiff denied this, and asserts that his knowledge and skill are inferior, and that he relied on the judgment: and directions of Marshall. Hence, it would have-been error for the court to assume that they had equal. knowledge on the subject, and on that assumption, base an instruction calculated to materially affect the-, verdict. ; .
We now come to the general charge of the court. To this charge counsel for the railway company have devoted much criticism,. and urge that the. law applicable to the issues and facts of the case was not-given the jury, and that improper rules were submitted for its consideration, bearing on the risks assumed by Rigby; the duties of the railway company touching-the same subject; the charge of contributory negligence made in its answer, and the promise, of the superior to the employe to replace the plug with a safety valve.
We are of- the opinion, however, that the, charge does not justly deserve all that has been said about it; and if the court had left it with the jury when it-seems to have reached a proper close, we could find no sufficient reason for a reversal of the judgment. But the court did not stop where the charge, properly ended. This language follows: “Now, gentlemen, this case has occupied a number of days and the evidence covers a wide field of inquiry, and, as you see from the somewhat lengthy instruction I have given you, that numerous questions of law arise. , I have endeavored to give you them as clearly as I possibly could, but in view of their length, it is possible that men not familiar with the examination of legal questions might not readily apprehend them; therefore, in connection I will summarize what I have thus said, and make it as near as I can applicable to the particular case before you.”
The summary was made, and after being introduced by the foregoing language, it would be quite natural for the jury to lose sight of much that had been said •during the progress of the long charge, and look to the attempted summing up of the whole matter within a ¡much smaller compass, and which it would more readily grasp and remember. If the summary was free from fault this would be well. On the other hand, if it embraces the virus of serious error the same became tfche more conspicuous and controlling with the jury. Less than two pages of the printed record contain the -summary, of which we find the following on page 531:
“If you find at the time of the explosion and for sev•;ral days prior thereto, there was no safety valve in the drum of the Baker Heater in car 22; that said ¡safety valve had been removed and replaced by a solid plug, and that Rigby knew of these facts Avhen he attempted to thaw out said heater at the time of the explosion complained of; and further if you find that the said explosion resulted Avholly from the fact that ¡said drum had a solid plug instead of a safety Aalve, then Rigby would, nevertheless, be entitled to recover in this action if you find by a preponderance of the •evidence either, that in attempting to thaw out said heater, as he did, he was acting in obedience to a positive order of his superior, that a person of ordinary prudence Avould, under the circumstances, have obeyed such order, and that in obeying such order he used ordinary care; or that Rigby informed his superior of the want of a safety valve in said drum and that ¡said superior ordered him to put in a solid plug and ho use said drum Avith a solid plug, and then promised Rigby to have said solid plug promptly replaced by a proper safety valve, and that Rigby, in reliance upon ■such promise, continued in the employ of The North-tern Ohio Railway Co., and that a reasonable timé to replace- said plug, had not elapsed between said promise and said explosion, and that in getting said cár 22 ready for the road at the time of the explosion, he used reasonable and ordinary care, unless you find that no ordinary prudent man would, under all the circumstances have continued in such employment and •obeyed such order.”
To say the least of this paragraph, it is very much involved, and if there was any confusion in the preceding instructions, it became worse confounded in this summary. The jury was told, that if there had been no safety valve in the drum of the heater for several days, that it had been removed and replaced by a solid plug of which facts Rigby had knowledge when he attempted to thaw out the heaters, and if the explosion resulted wholly from the fact that the drum had a solid plug instead of a safety valve, “then Rigby would nevertheless be entitled to recover,” if the jury ■should find from a preponderance of the evidence, either, that in attempting to thaw out the heater, he was acting in obedience to a positive order of his superior, which a prudent person, under the circumstances would have obeyed; or, that if the jury find that Rigby had informed his superior of the want of a safety valve, who informed him to put in the solid plug and so use the heater until the plug could be replaced by a safety valve, and Rigby relied on the promise and continued in the employ of the railway •company, and a reasonable time in which to replace the safety valve had not elapsed at the time of the explosion, provided he used ordinary care; unless the jury found that no ordinarily prudent man would have continued in the service and obeyed such order.
We have endeavored to analyze this paragraph, and place the component parts in such juxta-position with each other, as to convey a cleár meaning, but without succéss. It starts abruptly and as it is unfolded it becomes more complex. The premises for the principle inculcated, are laid after its assertion, and the paragraph ends with a qualification which reflects no-light on what, precedes it.
The evidence at least tends to prove, that Rigby had taken the safety valve from car *22 and put it on the drum of the heater of another car, and this too,, several days prior to the explosion. True,, it was done after consultation with Marshall, and by his directions. Another fact which the evidence tends to-prove, is that there was no steam pressure gauge on the heater in car 22, and had not been for several days, which fact was well known to Rigby. The evidence further tends to prove that Rigby, beside the knowledge of this condition of the heater, possessed large experience as foreman of car repairers, and also had considerable experience with the Baker system of heating and the method of thawing out the pipes when frozen.
Such being the state of the evidence, the court, in its; summary, in effect says, that although Rigby knew of the absence of the valve, he might “nevertheless recover, if he was acting in obedience to a positive order of his superior,” where a person of ordinary care would have obeyed such order. The order relied on as inducing Rigby’s conduct on the day of the explosion, came by wire from Marshall—“Get car 22 ready.” We are not directed to any other order, and we discover none other in the record. It seems to be conceded that such was at least the substance of the order. The court speaks of this as a positive order, obedience to which enters into one of the conditions of recovery. It may be a positive order to get the car ready, but it is Silent as to the means to be used in that behalf. It prescribes no means or method, and it may be quite true that Marshall, at the time the message was sent, was not aware that the pipes were frozen. The order may have implied thawing out of the pipes, if necessary to get the car ready, hut Rigby was left to use his own judgment as to the manner of performing the duty.
The natural tendency of the instruction was, that the order to get the car ready, implied the use of the means which Rigby adopted in thawing out the pipes. To prevent such misunderstanding on the part of the jury, the court should have been more explicit on the vital and perhaps turning point in the case.
The balance of the paragraph stating the other condition of recovery is equally unfortunate in its language, and we think as a whole it is erroneous and misleading.
Without further comment, we very reluctantly conclude, that for this error, the judgment must be reversed, and the cause remanded for another trial.
Judgment reversed.
Bürket, C. J., Spear, Davis, Shauck and Crew, JJ., concur.