Statement of the Case. The court refused to give each of these instructions, and defendant excepted. The court then charged the jury at large, leaving to them the issues of negligence on the part of the company in not properly constructing the track in that no outlet was provided for the water which would be liable to come down on the track and deposit sand and other obstructions thereon, and of contributory negligence. The court advised the jury, among other things, that, as the road at the place where the accident occurred was built across the mouth of a gulch, and from all the circumstances it would seem that it would have been practicable to make a culvert under the track at that place, keeping open the channel towards the river through which the sand might have washed out, and in that manner obstruction might have been avoided, if they believed from the evidence, taking into consideration the size of the requisite opening and the quantity of sand and gravel coming down through the gulch, and all the circumstances, the track might have been built at reasonable expense so as to avoid the possibility of the sand coming upon the track and obstructing it, they were at liberty to find that the company was negligent in respect to the manner of building the track at that place. And also that, independently of the testimony of Hall on that subject, the jury, "having regard to the testimony before you, the situation of the road and the topography of the ground, the gulch coming down in the way described by the witnesses," might on their own judgment and knowledge of such matters determine in their own minds "whether it was practicable to make a culvert there with reasonable cost, which would have the effect of carrying away the sand and gravel so it would not be an obstruction upon the track." To these parts of the charge defendant excepted. The jury found in favor of plaintiff, and judgment having been entered on the verdict, the company carried the case to the Circuit Court of Appeals for the Eighth Circuit, which affirmed the judgment. 4 U. S. App. 221. Thereupon this writ of error was brought. Opinion of the Court. Mr. John M. Thurston, (with whom was Mr. John F. Dillon on the brief,) for plaintiff in error. Mr. H. E. Luthe and Mr. C. S. Thomas, for defendant in error, submitted on their brief. MR. CHIEF JUSTICE FULLER, 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 an inference which it was for the jury to draw from those facts, and therefore that it was properly excluded; that as to the second question addressed to that witness and excluded, namely, whether the cut was not constructed as cuts were ordinarily constructed on roads running through such places, the court did not err in its exclusion, because railway cuts are not made upon any recognized pattern, and the testimony offered 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 to confuse and mislead; and that it was within the discretion of the trial court to permit leading questions to be propounded for the purposes of impeachment. It was also held that the Circuit Court did not err in refusing the first instruction asked for defendant, because the burden of proof was not upon plaintiff to show in the first instance that 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 employé in entering a given service and that relating to the amount of vigilance that should be exercised under 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 Opinion of the Court. 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 negligence on the part of the company, but has a right to expect that the company will construct and maintain 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 where 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 covered in the charge; nor in refusing the fourth instruction because it was not proper under the evidence; nor in those parts of the charge complained of. In our opinion the Circuit Court of Appeals committed 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 general 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 thereof 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 take 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 of water collected and accumulated by its embankments and excavations. Hough v. Railway Co., 100 U. S. 213; Texas & Pacific Railway v. Cox, 145 U. S. 593; Gardner v. Michigan Central Railroad, Opinion of the Court. 150 U. S. 349, 359; Union Pacific Railway v. Daniels, 152 U. S. 684; Chicago & Northwestern Railroad v. Swett, 45 Illinois, 197; Toledo & Peoria Railway v. Conroy, 68 Illinois, 560; Stoher v. Iron Mountain Railway Co., 91 Missouri, 509; Paulmier v. Erie Railroad, 34 N. J. Law, 151; Snow v. Housatonic Railroad Co., 8 Allen, 441; Huddleston v. Lowell Machine Shop, 106 Mass. 282; Smith v. Harlem Railroad Co., 19 N. Y. 127; Patterson v. Connellsville Railroad Co., 76 Penn. St. 389. It is the duty of the company in employing persons to run over its road to exercise reasonable care and diligence to make and maintain it fit and safe for use, and where a defect is the result of faulty construction which the employer knew or must be charged with knowing, it is liable to the employé if the latter use due care on his part, for injuries 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 company 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 consideration all the facts bearing on the defective construction in question. Judgment affirmed. MR. JUSTICE BREWER and MR. JUSTICE PECKHAM took no part in the consideration and decision of this case. Syllabus. THE DELAWARE. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. Nos. 555, 570. Argued January 10, 1896. - Decided March 2, 1896. Gedney Channel, being the main entrance to the harbor of New York, is as much a part of the inland waters of the United States within the meaning of the act of March 3, 1885, c. 354, 23 Stat. 438, as the harbor within the entrance. The real point aimed at by Congress in that act was to allow the original code (Rev. Stat. § 4233) to remain in force so far as it applies to pilotage waters, or waters within which it is necessary, for safe navigation, to have a local pilot. The Delaware, returning to New York in ballast only, entered Gedney Channel upon a true course of W. by S. About the same time, the Talisman, a tug towing a pilot boat, entered it from the northwest, upon a course about S.SE., and not far from a right angle to the course of the Delaware. Under these circumstances, as they were approaching each other on crossing courses, the Delaware was bound to keep out of the way, and the Talisman to keep her course. The Delaware made no effort to avoid the Talisman, but kept on its course until about a minute before collision, when its engines were stopped too late. The Talisman was struck and sunk, and became a total loss. Held, that the Delaware was grossly in fault. The Supervising Inspector's rules, so far as they require whistles to be used, ought to be construed in harmony with the International Code, and, as applied to vessels upon crossing courses, they mean that when a single blast is given by the preferred steamer she intends to comply with her legal obligation to keep her course, and throw upon the other steamer the duty of avoiding her. It is the primary duty of a steamer, having the right of way when approaching another steamer, to keep her course; all authorities agree that this rule applies so long as there is nothing to indicate that the approaching steamer will not discharge her own obligation to keep out of the way; and it is settled law in the United States that the preferred steamer will not be held in fault for maintaining her course and speed, so long as it is possible for the other to avoid her by porting, at least in the absence of some distinct indication that she is about to fail in her duty. The facts stated and referred to in the opinion leave too much doubt about the fault of the Talisman to justify the court in apportioning the damages. The Delaware is not exempted from liability by the provisions of the act |