delivered the opinion of the court.
Counsel for appellant in their brief rely upon two propositions which they endeavor to establish. These are, first, that the deceased was not in the exercise of due care, and second, that appellant was not guilty of the negligence charged. Other alleged errors assigned, not involving these propositions, are not discussed and may therefore be considered as waived. An instruction asked by appellant to find defendant not guilty was refused. In this there was no error. As we view the undisputed evidence in the case, it would have been error to give it. No witnesses *516were introduced by appellant. The facts in the case are peculiar and clearly prove negligence of a gross character in the foreman of the switching crew. He knew, or ought to have known, that an overdue passenger train was liable at any moment to come north over the track on which he directed the' hand car to be placed and used. It ivas suggested to him by Smiley, one of his crew, that the hand car be left at the cinder pit. To the question put to him, “How, at the time when you first stopped, when you got off to look at the broken switch, tell the jury if you offered any suggestion as to leaving the car there at the broken switch and going up and carrying the switch point and tools down to it?” he answered: “I told them I thought Ave had better leave the hand car and go up and pack down the tools, but Mr. Meloday had us take the car up there.”
Short, another member of the crew, testifies: “ Smiley said, ‘ Bovs, I believe it would be better to pack that switch point down here,and the tools, than it would be to take the hand car up there.’ Mr. Meloday says, ‘Just take the hand car up there.’ We knew that was law and gospel and Ave just did what he told us to.”
Hearing this suggestion, and with the knowledge of the risk incurred, he ordered the car to be taken to the tool house, and from there to the place on the track where it Avas left when the crew were sent for the switch point. After it had been selected and the creAV directed to bring it to the hand car, the foreman went ahead of them to the track and was in effect a lookout for them.
When they Avere carrying the switch point, Smiley testifies that “When we had the switch point in our hands Ave could not see south because the coal chute would be betAveen us and the coming train.”
The morning was dark and foggy. When within a short distance from the hand car, where the foreman had gone, he called to the crew, as Short testifies, and he is corroborated by others of the crew, “ Boys, come help me get the hand car off quick; there’s the train coming.” They dropped the switch point and obeyed orders. The three *517at the end of the switch point nearest the car got to the track, crossed it, and Smiley testifies: “We got there in time to get one end off the track and that was all. We had to get off ourselves then.” Atwell having fifteen feet farther to come, that being the length of the switch point, reached the track a few seconds later. In the haste, darkness and excitement, Short appears to have been the only one of the crew that saw what Atwell, the deceased, did. In fact, the others of the crew did not know that any one was hurt, and Short, at the instant, thought that it was Marlow. Short describes the scene as follows:
“About the time we were hunting the switch point, Mr. Meloday left the hand car and came down on the east side of the incline of the bank. He says, ‘ Boys, get a right new switch point.’ Mr. Smiley says, 1 That’s the kind we are hunting for.’ And then, I think, Mr. Meloday ran back to the hand car and says, ‘Boys, come help me get the hand car off, quick ; there’s the train coming.’ Marlow, young Meloday and Smiley were at the west end, the end of the switch point nearest the track, and Atwell, myself and Bice was at the east end. We dropped the rail and went. The ones in front of us, nearest to the track, succeeded in crossing the track. But Atwell and me and Bice never got across the track. Atwell, it proved to be, passed me to get to the hand car. I seen the train was so close I had no time to cross the track, and some one passed me; I thought it was young Meloday, but it was Atwell. I says, ‘ Look out, there,’ and he was kind of running in a stooping position. But he just sets his right foot over the east rail of the main line to take hold of the hand car, and when he arrived to where he could grab it, the train struck him. He had his face to the west. If he had heard me holler—he didn’t heed it, or look, that I could tell. I says, ‘Boys, who is hurt?’ Young Meloday didn’t think any one was hurt. I knew some one was hurt; I seen the train strike some one, but I didn’t know who it was. I says to young Meloday, ‘ There’s some one hurt, all the same.’ I says, ‘It’s Marlow,’ for I hadn’t seen him come up yet. By this time Marlow climbed up over the bank. I knew then it was Atwell.”
This graphic description by the witness Short, brings the scene and the emergency and the demand for instant action vividly to view. The lives of the passengers and crew of *518the coming train were in immediate peril. The foreman calls to his crew to drop everything and help him remové the obstruction. They hasten to do so. It was no time for deliberation or the exercise of judgment. Atwell obeyed orders to help remove the dangerous obstruction, and was killed while so doing. He was attempting to assist in averting an impending collision which his foreman’s lack of foresight had made inevitable unless instantly avoided. The fact that none of his fellow-labors saw Atwell when he was struck, except Short, although they were all close to him, is significant as showing how completely their attention was centered in trying to remove the hand car.
Smiley, who crossed the track first and aided in moving the hand car part way off the track, and who let go just in time to save himself, did not see Atwell, who must have been directly opposite him. He testifies that “ Atwell could not see the approaching train as early as I saw it, because I was the first one to the car.”
Marlow testifies, “ All that kept me from getting killed was letting go and jumping back. I didn’t hear the engineer do anything to warn.” He also testifies the foreman has authority to hire and discharge.
Hice testifies:
“ Q. How quickly was this done—from the time this order was given until the car was struck ? A. It was done right immediately.
Q. What did Atwell do when you- ran up there? A. They were all ahead of me. He ran past me; I could not tell if it was him or not. Every fellow did his best. * * * 'He was killed by the train at the time the hand car was struck.”
Due care, ordinary care and reasonable care, are relative terms, depending largely upon the circumstances of the case. What would be negligence in attempting to cross a track on a clear day, in front of a train, would not be negligence on a dark, foggy morning, in a servant obeying a peremptory order to remove “quick” a dangerous obstruction from a rapidly approaching passenger train. It is said in Penn. Co. v. Langendorf, 48 Ohio St., Vol. 13, L. R. A. 190, *519in a case requiring prompt action, “ There was but the fraction of a minute in which to resolve and act, or action would come too late. Under these circumstances it would be unreasonable to require a deliberate judgment from one in a position to afford a relief.”
To the same effect are: Buel v. N. Y. C. R. R., 31 N. Y. 314; Gayner v. Old Colony R. R. Co., 100 Mass. 287; Louisville N. A. & C. R. Co. v. Lucas, 6 L. R. A. 195.
In view of all the circumstances in evidence in this case, we think the jury was warranted in finding that appellant, through the acts of the foreman of its switching crew, was guilty of negligence, and that the foreman of the switching crew was at the time a vice-principal, for whose negligence appellant is liable. We further think that the jury was warranted in finding that the deceased was not guilty of contributory negligence.
Holding these conclusions and finding no reversible error in the record, the judgment of the Circuit Court is affirmed.