Finnegan v. Missouri Pacific Railway Co.

GRAVES, J. Action for personal injuries sustained while in the employ of defendant as one of its locomotive engineers. On the night of June 21, 1903 (Sunday), plaintiff was running an engine which was pulling a freight train from Pleasant Hill to Jefferson City. This train was composed of twenty-four loaded cars and a caboose. The cars were principally loaded with live stock. At Cole Junction, three or four miles west of Jefferson City, is the junction point of what is known as the river route and the main line of defendant’s railroad1. In other words, at Cole Junction the river route line leaves the main line of defendant’s road and proceeds through Boonville, Marshall and Lexington, and thence to Kansas City. At the time named the train of the plaintiff, in passing through Cole Junction, ran into another freight train which was bound west over the'river route, and which at the time of the collision was in motion and was partially off of the main line on the river route line. A good portion of it, however, was yet on the main line. In the wreck which followed the collision of plaintiff’s engine, the fireman and head brakeman were killed, and the plaintiff quite seriously injured. The head brakeman appears to have been on the engine with the engineer and fireman. For the injuries sustained the plaintiff sued for $50,000, and recovered a verdict for $25,000, and from a judgment on such verdict this appeal was taken. Numerous grounds of negligence were alleged’ in the petition, but the case was submitted to the jury upon one ground only, which is fairly stated in plaintiff’s second assignment of negligence which reads thus: — 617 — “The defendant, its agents, servants and vice-principals, carelessly and negligently failed and neglected to so arrange the lights on the order hoard at Oole Junction that a red light would he shown to the plaintiff, when they knew, or hy the exercise of ordinary care might have known, that said west-hound freight train had not cleared the main track upon which the train of the plaintiff was approaching. ’ ’ The instruction which submitted the question of negligence to the jury reads: “The court instructs the jury that if you believe and find from the evidence that on the 21st day of June, 1903, it was the duty of the plaintiff in the course of his employment, as an engineer of defendant, to run his train through Cole Junction without stopping; that at the time he was approaching said Cole Junction there was a west-hound freight train upon and occupying the main track upon which the train of plaintiff was approaching; that the operator at Cole Junction knew, or hy the exercise of ordinary care might have known, that said west-hound freight train was upon and occupying the track upon which the train of the plaintiff was approaching; that at said time defendant had a signal hoard at Cole Junction for the purpose of displaying signal lights, a red light, under the rules and customs of defendant signifying that plaintiff should stop, and a white light signifying that he should proceed; that at said time it was the duty of the operator at said Cole Junction in the course, of Ms employment to so arrange the said signal lights that a red light should he shown to the plaintiff; that said operator failed and neglected to so arrange the signal lights on the order hoard at Cole Junction that a red light would he shown to the plaintiff, hut so arranged said signal lights that a white light was shown to the plaintiff, and that said act on the part of said operator, if you so find, was negligent and careless; and — 618 — if you further believe and.find from the evidence that by reason of the negligence and carelessness, if any, of said operator, as submitted to you above, the plaintiff did not stop his said train, but proceeded onward, and that the trains in question were thereby caused to-come into violent collision with each other.and plaintiff was injured thereby, and that the plaintiff was at the time in the exercise of ordinary care himself; then your verdict should be for the plaintiff.’’ The evidence is exceedingly voluminous, but as the plaintiff has limited his submission to the one ground of negligence, the record is to some extent simplified and shortened. The answer is in effect a general denial and a plea of contributory negligence. Reply a general denial. Numerous errors are complained of by the defendant, and among them it is vehemently urged that the trial court erred in not giving a peremptory instruction for the defendant. This will call for a fuller review of the facts before closing the opinion. Upon some of the points in issue the evidence is hopelessly conflicting, and in some instances such direct conflict is found as would almost bespeak perjury upon one side or the other. Now as to the things shown by the 'mass of testimony. Plaintiff was an experienced engineer, and familiar with the conditions in and about Cole Junction. Plaintiff’s train was a regular freight train, known as No. 7G. On the day in question it left Pleasant Hill, Missouri, late under its schedule time, and with the instruction to make good time. The train was due at Cole Junction at about 8:50 p. m., and arrived there a few minutes late. The situation around Cole Junction becomes material. Plaintiff was, as indicated, coming into Cole Junction from the west. At Cole Junction was an exceedingly small house used for a telegraph station. To the northwest of it was the section house. To the west of it wns a double sema — 619 — phore, by which the telegraph operator from his room was able to throw either a red or white light to the west, or the same kinds of lights toward the east. To the west of Cole Junction there is a curve in the main line of defendant’s tracks, so that this semaphore sign is not visible until the engine gets within about 1200 feet of the station. To the east of the station á short distance was the point where the river route line diverged from the main line. At or near this point were two switch targets, which would show either red or green accordingly as they had been set for the occasion. These two switch targets with their lights were so situated that when the west-bound train was being pulled in from the main line to the river route line, these lights would be obstructed by the cars in the train. From the evidence it further appears that west of Cole Junction on the main line there is an upgrade, so that in coming in from the west a train would be coming down grade. It had rained that afternoon and was misting rain when the accident occurred. It was exceedingly dark. Plaintiff says that the headlight on his engine would only light the track for about 100 feet from the engine; that it was an oil lamp. At Tipton he received! a message saying that trains 16 and 15 had passed Cole Junction. There were two passenger trains on the river route, one east-bound, due at Cole Junction at 12:10, and the other west-bound, due at Cole Junction at 1:10 in the day time. Plaintiff in testifying as to how he approached Cole Junction with his train, said that he had been running something like thirty-five miles per hour, but that he put on the air brakes (all cars upon his train were fully equipped with air) and slowed down to twelve miles an hour and was running at that rate when he came in sight of the semaphore; that when he saw the semaphore the light shown therein was white and he released his brakes and increased — 620 — Ms speed and was running eighteen or twenty miles per hour just before he ran into the other train. The other train men with him said he slowed down to fifteen miles per hour and then increased the speed. The stockmen on the train, some four in number, say there never was a decrease in the speed and that plaintiff ran his train around the curve and into the other train at a rate of thirty to thirty-five miles per hour. This and practically all of the really disinterested testimony shows the latter state of facts. The trainmen with plaintiff on the train corroborate plaintiff in the statement that the semaphore revealed a white light, and' there is some other slight evidence to the same effect. The stockmen who were in the caboose and who got out of it shortly after the wreck say that when they looked at the semaphore the light was red. They also testify to hearing a talk between the conductor and brakeman in the caboose just after the accident to the effect that there was a red signal and the engineer had run into the station without observing the red signal. There is some evidence that the signal was partly red and partly white. None of this testimony goes to the exact time when the engineer came in sight of the semaphore, but all goes to a time just after the collision, which time varies under the evidence, the stockmen in a few minutes thereafter and some others, later thereafter. Plaintiff says that the switch lights to the east of the station house had nothing to d'o with the running of his train, but the great mass of the evidence shows that they were factors to be seriously considered. Much of this testimony can best be considered and detailed in connection with the points discussed in the course of the opinion. The defendant introduced a number of rules of the company, some which we will quote. In February, 1903, the defendant issued a new time card and1 in it was the following rule for train — 621 — men: “All trains will approach Cole Junction and the cross-over just west of the end of the double track at Independence, under full control.” Plaintiff had this time card and says he was familiar with this rule. In 1901 the defendant adopted and published a set of rules known as standard rules, which appear to be about the same as used upon railroad's generally, with some exceptions. Rule 27 reads: “A signal imperfectly displayed, or the absence of a signal at a place where a signal is usually shown, must be regarded as a stop signal, .and the fact reported to the superintendent.” Rule 98 reads: “Trains must approach the end of double track, junctions, railroad crossings at grade, and drawbridges, prepared to stop, unless the switches and signals are right and the track clear.” Much testimony was introduced upon each side as to the meaning of these rules, as well as testimony the purpose of which was to show that such rules had been abrogated by custom or had not been so abrogated by custom. The sufficiency and character of this we leave for discussion in the proper place. This will suffice fora general outline of the case, leaving the network as; gleaned from the evidence to be woven into the opinion. I. Defendant urges that the court erred in refusing to give instruction numbered 7, as requested by it, and for that reason the judgment should at least be reversed and remanded. We think there is substance to this contention. Refused instruction numbered 7 reads: “The court instructs the jury that if you believe from all of the evidence in this case that it was the duty of plaintiff, when approaching the junction of the main line and river line tracks, at Cole Junction, to watch for the light in the switch stand at the point of the junction of said two tracks and to stop if he.could — 622 — not see said light, and if you further helieve from the evidence in the case that he failed to look for the light in the switch' stand at said junction point, and that such failure in any way directly contributed to the accid'ent in question, then plaintiff is not entitled to recover, and it is your duty as jurors to return a verdict for the defendant, notwithstanding you may further believe from the evidence in the case that the order board at Oole Junction was out of repair and the light therein showed white, and that the train dispatcher, the telegraph operator at Oole Junction, and the members of the crew of the other train were also guilty of negligence. “The term ‘negligence,’ as here used, means the failure to exercise reasonable care.” Plaintiffs testimony was to the effect that the switch target lights at the junction did not affect his train and for that reason it is argued that he did not have to look for them. On the other hand, the testimony in behalf of defendant is to the effect that it was incumbent upon plaintiff to look out for those lights, and in the event it was wrong, it was his duty to stop. And further in the event the light was not to be seen it was his duty to stop. One of these targets was at the point where the river route left the main line. By the light on this target, if adjusted and1 right, it would he indicated whether or not the switch was set for the passage of main line trains or set for the passage of river route trains from the main line to the river route line. Defendant’s testimony is strongly to the effect that it was the duty of the plaintiff and all engineers coming in from the west to keep a lookout for the lights at this target and if they could not be seen, then it was his duty to stop before running into the switch. The evidence is that these lights, unobstructed, could have been seen practically from the curve mentioned in our statement and at least from 600 to 700 feet. — 623 — The plaintiff in his testimony says: “I never paid any attention to those switches at that end of the yard, because they did1 not affect that train.” And again when asked if he could not have seen the switch light if the other train had not been there, he said: “Yes, sir; if I had been looking for it; but I would not have been looking for it. ’ ’ And so throughout his testimony. He thus admits he did not look for these signals, and excuses himself on the ground that they did not affect his train, and he did not have to look for them. Defendant’s testimony is to the contrary. According to it, he and all engineers should watch for these lights; that such signals did affect his train, and if he looked and did not see the lights, the absence of the lights was within itself a signal to stop, before running through the switch. Under this state of the evidence, there can be no question that the defendant was entitled to this instruction. Plaintiff urges that the same matter is covered by instruction numbered 10 given for the defendant. We do not so think. Instruction numbered 10 reads: “The court instructs the jury that if you believe from the evidence in the case that the rules of the defendant, in force on June 21, 1903, applicable to trains approaching the junction point of the main line track and the river line track at Cole Junction, required engineers to approach said junction point with their trains under full control and prepared to stop if the ■switch at said point was not right and the track at said point was not clear; and if you further believe from the evidence in the ease that the plaintiff did not observe and obey said rules, but approached the junction point of said two tracks not prepared to stop and with-cut looking for the switch light at said junction point ■of said two tracks, and by reason thereof ran into the side of the other train, then he was guilty of negligence and is not entitled to recover in this case, and it — 624 — is your duty as jurors to return a verdict for the defendant.” This instruction is directed more to the question of the control of the train than to any other question. But giving it the broadest possible view,, it can only be said that it predicates a finding for the defendant oh a combination of two things, (1) a failure to have the train under such control as to be able to stop, and (2) “without looking for the switch light at said junction.” The evidence is conflicting as to whether or not the plaintiff did have this train under control in approaching this junction. Suppose as a fact the train was under such control that it could have been stopped before running into this switch, had plaintiff looked for and seen these switch lights: wouldn’t the defendant then have been entitled to instruction number 7, and not to the one which was given? . We think so. The .refused instruction only in effect concedes (by eliminating the question) that the train was under control, and predicates a recovery for the defendant oh the ground that plaintiff failed to. look for the target lights, if the jury found it was his duty to look for them. Plaintiff admits he did not look for them, and the instruction refused would have compelled the jury to. say whether or not under all the evidence it was his duty to have looked for such lights. Bearing in mind now the. evidence that these target lights might have been seen from 600 or 700 feet to a quarter of a mile to the west, and that at such point the absence of these lights could have been seen by plaintiff, let us suppose a case. Plaintiff says he had his train under control at the rate of speed he was running, hut we.shall leave that out of the supposed case. Suppose plaintiff had been running not to exceed five miles an hour (the rate which defendant’s witnesses say that he should have approached this switch or junction), so that there could be no question that he had — 625 — his train under full control, yet the defendant would be entitled to the refused instruction. In other words, the defendant was entitled to have the jury say whether or not plaintiff’s failure to look for the light was the occasion of the collision, although it be conceded that he had his train under control. Not looking for these lights the plaintiff might have run into the river route train, although his rate of speed was very slow, and his train absolutely under control. Instruction number 10 does not give the defendant that right. Under it the jury was compelled to find not only that plaintiff failed to look for the lights, but further that he “approached the junction point of said two tracks not prepared to stop,” whereas the defendant was entitled to a verdict upon plaintiff’s failure to look for the lights, if such failure was negligence, and if such failure contributed to the injury of the plaintiff. No other instruction covers this vital point. Instruction number 10 does not meet it. The failure to give instruction number 7 precluded the defendant from a recovery, if the jury found that plaintiff had his train under control, but further found that it was the duty of plaintiff to have been on the lookout for these lights and that he failed so to do, and by such failure was injured. This theory should have been presented to the jury and instruction number 7, refused, properly presented it. Instruction number 10 did not present such a theory. Under instruction ten the jury had to find two things before defendant could recover, i. e., (1) that plaintiff approached the junction of the two tracks “not prepared to stop,” and (2) “without looking for the switch light.” Whereas under the law the latter alone was ‘sufficient for a verdict for the defendant, provided the jury concluded from the evidence (1) that it was his duty to look out for the switch light, (2) that he did not look as he admits, and (3) that his — 626 — failure to look resulted in Ms injury. By tMs error the defendant’s chances for a verdict were materially decreased, and the case will at least have to be reversed and remanded. II. It is also urged that there was error in refusing to give instruction numbered 4, as asked by the defendant, which reads: “The court instructs the jury that even though you may believe from the evidence that the light in the order board at C'ole Junction showéd white as plaintiff approached it, still that fact did not justify Mm in attempting to run his engine over the point of junction of the main line track and the river line track, without having his engine under full control and being prepared to stop, if the switch light at said point was not right and the track at said point was not clear.” This instruction practically goes to the point raised by the demurrer to the evidence. It concedes the negligence of the defendant in having a white light in the order board or semaphore, when it should have been red. It is at least so near to the demurrer, that we prefer to discuss the demurrer rather than the instruction. Plaintiff’s counsel concedes that if the several rules of defendant introduced in evidence were in force, then he has no case, but it is urged that the rules liad been abandoned and superseded by a custom. Such concession is contained in instruction numbered 4, asked and obtained by them, which thus reads: “The court instructs the jury that although plaintiff is barred from recovery in this case if his injuries were caused or contributed to by the violation on his part of any rule or rules in force on the defendant’s line at said time, and which had not been abrogated or abandoned by defendant, still if you further believe and find from the evidence that at and before the time plaintiff was injured, it was the regular and estab — 627 — listed custom and usage among’ the engineers of the defendant to disregard said rule or rules at the point in question, and that the defendant’s superior officers and representatives in charge and control of said engineers knew of and acquiesced in said usage and custom, if any, then said rule or rules would be abrogated at said point.” The question here is had the rules been abrogated by a generally known usage and custom, which custom of violating the rules was known to and acquiesced in by the defendant. The1 first rule we have is the one on the time card, which reads: “All trains will approach Cole Junction and the crossover just west of end of double track at Independence under full controlThe applicable portion we have italicized, and if standing alone would read: “All trains will approach Cole Junction under full control.” This rule was, so far as this record shows, only promulgated in the month of February, 1903, preceding the accident on June 21, 1903. It singles out two points on the line between Kansas City and St. Louis. That it was adopted and promulgated because of the dangers at these two points is apparent from the mere statement of the conditions, as well as from the direct evidence in the record. In making the rule it is to be presumed that there was taken into consideration the' surroundings. Now what were they at Cole Junction? There we have a place where, according to plaintiff’s own statement, another train was liable to be at any time. There we have a place where there is neither town nor depot. The only thing is the junction of these two railroad tracks, a- little eight by ten telegraph room, this semaphore operated from the telegraph room, and nearby a section house. The actual junction where the danger lurked was a very short distance to the east of the little telegraph office, and the semaphore a little space west. ■ Plaintiff personally does not deny that the above rule — 628 — was in force when his train came in that night. In fact he claims that it was in force and he obeyed it. He claims to have acted upon and) under this rule, or rather his construction of the rule. The rule is plain and needs no construction as to the point where he must have his train under control, however different may be the views as to what constitutes “full control.” Defendant’s witnesses say that by “full-control” is meant that the train should be run at such rate as would enable a person to stop the train within the distance which he could, at the time and under the existing conditions, see an obstruction on the track. This appears to us the reasonable view of it, but that is not the question we have in mind now. The question is, at what point this plaintiff should have had his train under “full control.” At the point where he could first see the semaphore? Or should it have been at the point of real danger, the junction of the two tracks? A casual reading of the rule shows that the latter point is the one meant. As to this question the rule is plain and needs no proof aliunde. Now, under the evidence of the plaintiff himself, did he undertake to have his train under any kind of control at the point designated by the rule? We think not. His own witness Crawford says it was not under control as they passed the telegraph station. Plaintiff says that he put on his air and slackened his speed to twelve miles an hour on this wet down-hill track until he got to a point where he could see the semaphore, a distance of 12001 to 1500 feet to the west of the semaphore. Grant it that his train at twelve miles an hour was under “full control” at that point (a thing somewhat doubtful, to say the least, under the conditions), yet what effort does the plaintiff show to have his train under “full control” at the place mentioned in the rule, i. e., at the junction ? He says that when he caught sight of the semaphore he then released the air, took off his brakes, opened the — 629 — throttle and by the time he got to the other train and struck it he was going at the rate of eighteen to twenty miles per hour. The conductor, his witness, says twenty-five miles per hour. At no time after he caught sight of the white light in the semaphore, did he make any effort to have his train under “full control” at the crucial point — the junction of the two tracks. On the contrary he says just the opposite. He says that he ^teamed up and increased his speed. Within a few hundred feet he increased his speed eight miles per hour. According to himself and his witnesses he was “pumping steam” and increasing speed, rather than attempting to have his train under “full control.” He also says that where you put on the air once and then release it, time is required for an additional supply of air, before the brakes can be successfully applied, or words to this effect. So that instead of trying to approach this crucial point with his train under “full control” he had done and was doing every thing in his power to the contrary. He had put his air in condition that it would not be immediately effective, and was increasing his speed at a rapid rate. It is straining the credulity of this court to urge that under these conditions testified to by plaintiff himself, we should say that there is evidence in this record to authorize a fin fling that the plaintiff approached this junction with his train under “full control.” The term “full control, ’ ’ has some meaning which can not be entirely overlooked, but for the purpose of this point we need not now digress for a discussion of the term “full control.” What we now hold is that this rule required the defendant to approach this junction i. e., the point where these two tracks diverged, with his train under *‘full control,” and that under his own evidence he was not even making an attempt to have his train under “full control” at this point; that having his train under control at the point where he could first see the — 630 — semaphore was not a compliance with the plain meaning of the rnle. If this rnle was in force, the evidence in the record precludes a verdict for the plaintiff, and a verdict for defendant should have been directed by the court. III. But now going to the alleged abandonment of the rule, let us see how the case stands. In the-course of plaintiff’s testimony he made the following admissions with reference to this rule: “Q. I wish you would tell me what was your understanding of that rule? A. To approach Cole Junction at such a speed that you could stop if something-was wrong.' “Q. If anything was wrong? A. If anything was wrong. “Q. You not only mean the order hoard, hut anything else that might he u;rong there, is that the way you understand it? A. Oh, yes, sir. 1 ‘ Q. Now, Cole Junction is a junction point where the river route leaves the main line, isn’t it? A. Yes, sir. “Q. And there is liable to be trains there at any time ? A. Yes, sir; and at any other station. “Q. By approaching at such speed so that yotr could look out for anything — that means so you could look ahead of you, and if there was anything there, you were supposed to stop and avoid it? Is that the idea? A. That is it. “Q. That is, to be able to stop your engine almost at will? A. In a reasonable distance. “Q. What do you suppose was the reason for making that rule — under full control? A. I do not understand the question. ‘ ‘ Q. What do you suppose was the railroad company’s reason for making that rule — to approach there under full control? A. So that it might be observed, — 631 — and that a man might reduce speed so that he could stop.” That plaintiff had full knowledge of this rule printed in italicized letters is shown by the following admissions: “Q. Your time card had this rule on it in italicized letters at the bottom, did it not (reading: ‘All trains will approach Cole Junction and the crossover just west of end of double track at Independence under full control.’) ?” Objection by counsel for plaintiff. “Q. Were you familiar with that?” Objection. “A. I know that there was such a rule. “Q. This was on all the time cards wasn’t it?” Objection. “Q. All the time cards that you saw? A. Every one had the same time card. I had the time card with a rule on it like that.” After this admission the time card was admitted in evidence showing the rule in italics or emphasized type, duly signed by the division superintendent and the chief dispatcher. The whole trend of plaintiff’s own testimony is to the effect that he knew of and recognized the rule in question, but that what he did on the occasion was a compliance therewith. But this we have mentioned in the preceding paragraph, and our purpose now is to discuss the law and the facts as to an abandonment of this rule under all the testimony. In business of the .character conducted by the defendant, the law charged the defendant with the duty to make rules for the protection of its employees. In 26 Cyc. 1157, the case law is collated, and the rule of law succinctly announced in this language: “Where a master is engaged in a complex or dangerous business he must adopt and promulgate such rules and regulations for the conduct of his business and — 632 — the government of his servants in the discharge "of their duties as will afford reasonable protection to them.” The language announced in the text is almost an excerpt from the case of Reagan v. Railroad, 93 Mo. 348. With this rule of law staring the defendant in the face, this and other rules of conduct for the government of its employees were adopted. After adopting the same, does the evidence show that the defendant knowingly permitted violations of the rules? It must be borne in mind that the rule we are now discussing wa,s promulgated February 8, 1903, or about four months prior to the accident. The rule of law in this State is thus stated by Gantt, P. J., in Schaub v. Railroad, 106 Mo. l. c. 92: “The uncontradicted evidence in the case is that there ■ was a rule of the company prohibiting employees from going between the cars to uncouple them while in motion, and this rule had been in force for at least three years, and deceased was shown to have had a copy of these rules. Indeed they were printed on all of the ‘time cards.’ In the absence of all evidence that defendant knowingly permitted a violation of this rule, it is clear that deceased was bound to observe it, and if he persisted in breaking it, and was hurt in so doing, he could not ask the defendant to make good to him the loss or injury his own recklessness had caused. The court committed manifest error in refusing defendant’s third instruction. If the deceased violated said rule, he was guilty of contributory negligence that will bar his recovery in this cause.” To like effect is the language of Macfartane, J., in Francis v. Railroad, 110 Mo. l. c. 395, whereat he said: “It would be most unreasonable and unjust, after imposing upon the master the duty of promulgating a rule for securing the safety of his servant, to permit the servant to recover from the master damages for injuries which the observance of the rule would have — 633 — prevented. As the master is bound at his peril to make the rules, the servant should be equally bound at his peril to obey them. In such case the disaster is brought upon the servant by his own voluntary act, and he, and no.t the master who had discharged his duty, should bear the consequences. So it has been uniformly ruled.” On the other hand Judge Macfarlane in the same case states the rule as to what will amount to an abandonment or abrogation of a rule in this language: “It has been held by this court that, if there was an established usage on the part of those employees whose conduct a rule was intended to regulate, known and acquiesced in by their superior officers, to disregard the rule, one of such employees should not be held guilty of contributory negligence for its violation. [Barry v. Railroad, 98 Mo. 69.]” The italics in the above are ours. Speaking to the same question, Grant, C. J., for the Supreme Court of Michigan, in Fluhrer v. Railroad, 121 Mich. l. c. 217, said: “The onus probandi was then cast upon the plaintiff to show that the company sanctioned a departure from the rule by a custom so universal and notorious that the company was presumed to have had knowledge of it and to have ratified it. ’ ’ And in the later case of Nichols v. Railroad, 125 Mich. l. c. 398, the same court after citing approvingly the Fluhrer ease said: “We think the charge failed to state the rule correctly, as it did not inform the jury the custom should have been shown to have been so universal and notorious that the company is presumed to know it. The charge also spoke of the custom as proved, when it was for the jury to determine from the evidence whether the custom was proven or not.” In Railroad v. Scanlon, 22 Ky. Law Rep. l. c. 1404, it is said: “The conductor and fireman, and perhaps a brakeman of the train causing the accident, each tes — 634 — tified that the speed of the train was not above that frequently attained; but they neither show, nor hint at the fact, that these occasional violations were condoned by the higher officers of the road, or even were known to them. The tendency of the law has been, and is, to hold common carriers employing the hazardous agencies incident to steam railroad transportation to the highest degree of accountability, going to the extent of requiring them to provide the most modern and improved machinery and appliances in connection with the running of their trains, and holding them responsible to passengers and shippers for every neglect of their servants. They of course can operate their trains only by means of trainmen who perform their duties, under the direction of the employer. Modern conditions of transportation and travel are such as to make it impossible to meet their demands upon the larger railroad systems, without the use of such carefully prepared, and rigorously enforced rules, as will reduce the carrier’s work to a well nigh perfect system. The very nature of their business obviously requires that these employees, in the discharge of their respective duties, must themselves feel under some obligation to the public they serve. Not only their own lives, but those of their fellows, and large moneyed interests represented by rolling stock and freight, all call for the exercise by the trainmen of a high degree of caution, as well as a strict observance of those rules found by experience to best conserve their own safety, and that of their charges. The responsible trainman who violates such reasonable rules, of which he has knowledge, and which he has undertaken to regard, must needs take upon himself the personal consequences of his dereliction. If injury results to him by reason of such violation, and which would not, in any probability, have occurred but for it, he alone should suffer the consequences of his fault.” The italics in — 635 — the above are ours, and we make them because it fits the case at bar. To a very similar effect is the case of Konold v. Railroad, 21 Utah, 379. In that case it is said: “Respondent’s counsel, in their brief state that ‘it is not denied that it was the duty of conductors and engineers in running their trains to obey the rules and regulations promulgated by their superiors for their guidance, provided that such rules and regulations are reasonable and are enforced,’ but claim that the printed rules and time cards of the company were not enforced, but were habitually violated, and that therefore the plaintiff was not bound to obey the same. The true rule on this subject is that when the rules and regulations established by the master are habitually disobeyed, with the knowledge or express consent of the master, or have been disregarded without his express consent in such a manner, and for such a length of time, as to raise a presumption that the master (whose duty it is not only to make and promulgate, whenever engaged in a business of such a nature as to require it, suitable rules and regulations for the protection of his servants, but also to use due care and diligence to have then enforced: Pool v. Southern Pac. Co., 20 Utah, 210) must have become aware of such habitual disregard, and approved the same, such rules and regulations will be regarded as abrogated.” Like the previous quotations the italics in this quotation are ours. The rule as laid down in 26 Cyc. 1161, is almost a transcript from the Utah case, as above. From it all it may be gathered (1) that infractions of the rule must be known to and acquiesced in by the superior or managing officers of the corporation, or (2) as stated in the Michigan and other cases the infractions of the rule must have been so universal and notorious and for such length of time, that the superior or managing officers of the corporation will be presumed to have known of such infractions of the rules and to — 636 — have acquiesced therein. In either of such cases the-rules will he deemed to have been abandoned or abrogated, and of course would constitute no defense for the defendant. If there is in this record sufficient evidence tending to bring plaintiff’s case within the rule the demurrer was properly overruled. But 'is there such evidence? Let us go to the rule we have under consideration. In the first place it had been promulgated but a fraction over four months prior to the accident. Its evident purpose was to obviate accidents at these two most dangerous points on defendant’s lines. These points had been singled out from all others and made the subject of a rule. It was promulgated over the names of the chief train dispatcher and the division superintendent. It is hardly reasonable that such superior officers had any intention to abrogate a rule so-lately promulgated. But let us see the testimony. Upon the question of how trains ran through Cole Junction, witness J. L. Fletcher said: “Q. How often did that occur, as you say, that a train would slow down at the curve and then puff up when the light was white and run on through? A. Well, it occurred every short while.” This witness had only been around Cole Junction at night for a month and a half before the accident. His knowledge is therefore limited to that time. George L. Shemwell, a brakeman on the train with Finnegan, and one of the strongest witnesses on the point,, said that he had seen a number of trains pass through the junction in the manner that Finnegan did on that occasion, but on cross-examination he could not fix the dates, and his testimony does not show to what extent this practice prevailed from February 8, 1903, the date this rule was promulgated to the date of the injury. He had been running through there every — 637 — three days since March, 1902, a part of the time on the river route, Roy Brunk testifies in general terms, and says there was a general custom to run as Finnegan ran, but his testimony on the point is rendered worthless by his admission upon cross-examination. It shows that he could have had no knowledge of any such custom. His source of knowledge is thus disclosed by the cross-examination: “ Q. When did you begin firing for them? A. I made my first trip on the first day of June, 1903. “Q. That was twenty days before this accident? A. Yes, sir. “ Q. You quit them in July? A. By request, yes, sir. “Q. You were discharged? A. Yes, sir. - “Q. So, all you know about an engineer’s duties is what you gleaned in that month, riding on the engine with him? A. Well, it was necessary that I should— “Q. (Interrupting.) Just answer the question, yes or no, is that true or not? A. It was necessary, before I would be permitted to ride on the engine with him, that I pass an examination on the standard rules, which cover the duties of engineers, firemen and all trainmen. “Q. You were supposed to know the rules applicable to engineers, as well as firemen? A. Yes, sir. “Q. Well, leaving out the rules, then, and coming down to custom; you didn’t pass any examination on what was customary among the men operating trains, did you? A. No, sir; but I had occasion to go over the line several times, and I know what was customary with the men I was with. “Q. Still, you had only been over it some three weeks when this accident happened? A. Something like three weeks. “Q. How many times had you been through Cole Junction? A. On the main line, twice. — 638 — “Q. With the same engineer? A. Yes, sir. “ Q. So you only know what those two engineers did, then? A. Yes, sir; that is all. “Q. Did you have a clearance through either time? A. No, sir; had no orders.” Norman Crawford, the conductor on the wrecked train, testified that it was usual for the engineers to slow up until they got their train under control before they got to the point where the semaphore light was visible and then if the light was white to then go ahead, and that to go ahead meant to pick up speed, but he further said: “Q. Wasn’t that a most extraordinary and unusually fast rate of speed for an engineer to run through there with a freight train in the nighttime, .regardless of whether the semaphore showed white or red? A. Yes, I guess it was. He was going— . . . “Q. And you sent along that word to Mr. Finnegan to be careful in running into Cole Junction, didn’t you? A. Yes, sir. . . . “Q. Mr. Briscoe-asked'you why in the world he ran in there at the rate of speed, and you told him you didn’t know, because you had sent him word to run in there slowly? That conversation occurred, didn’t it? A. Yes, sir; that is the conversation, the best I can remember. . . . “Q. Now, Mr. Crawford, you don’t think that a rate of speed of fifteen or eighteen miles an hour with such a train as that, and in the nighttime, down hill, on a wet track, was under full control, do you? A. Not right there at the station it was not. When I spoke about the full control it was when she approached the station. “Q. That is back how far? A. That is when he came around the curve in sight of the station.” His testimony is therefore to the effect that the conduct of Finnegan was unusual. Briscoe, the conductor on the train which was run — 639 — into, said that it was usual for a train to slow up' before coming in sight of the semaphore lights, and have the train so it could be stopped, but if the semaphore light was white, they would then proceed, but he does not say it was usual to increase speed before reaching the junction — the danger point. F. H. Hamerick, an engineer, who at that time had a suit pending against the defendant, testified that it was customary to increase the speed as soon as the engineer saw the board was white. He says that such a custom prevailed prior to June 21,1903, but does not undertake to give the details as to what was the extent of the custom from February 8, 1903, to June 21, 1903, the only time which could have any bearing upon this rule. His service with the company began some two years prior to the accident and terminated some two years afterward; in other words, from 1901 to 1905. Such is the testimony on the infractions of this rule. There is no evidence that the superior officers had knowledge of or acquiesced in these infractions, but on the contrary such knowledge is denied. With the exception of the witness Hamerick, the testimony as to the frequency of the violations of the rule is but fragmentary. It does not show a general custom. Nor do we think that even including the testimony of Hameriek the plaintiff has brought his case within the general rule announced by the authorities, and as we have undertaken to again outline. We are not concerned with a custom prevailing before the promulgation of this rule, nor to conduct after the accident. The rule had been promulgated only four months and thirteen days prior to this accident. Granting, as we must, that whatever custom arose as to' this rule, such custom could at most have had but a short existence before this accident. The great weight of the evidence fails to show it to be general, and even if it did, it was not so “universal and notorious and of such long standing” as would raise the presumption that the su — 640 — perior officers knew of the custom and acquiesced therein. This rule could not he violated until it was made. "We must seek, therefore, only the evidence going to a custom having its life and birth after February 8, 1903. Prior matters do not-tend to show the abrogation of this particular rule. If such practices prevailed prior to 1903, as the testimony of Hamerick and Shemwell might tend to show, the reasonable inference would be that this rule was promulgated to suppress such practices. The validity of this rule at the date of the accident must be measured by the occurrences since February 8, 1908. Under the evidence which we have outlined these occurrences are insufficient to show that the rule was so universally and notoriously violated for such length of time as would .raise the presumption that the superior officers of the defendant knew of such violations and acquiesced therein. If one of the most important rules in the running of trains can be thus abrogated and annulled by reckless agents in four months time, or less, it would be a hopeless task for a railroad company to comply with that sound policy of the law which compels it to have rules. It must be remembered that these rules are not for the protection of the agents of the company alone, and to be annulled and abrogated by them at their pleasure, but they are to protect the general public and the railroad company as well. The travelling and shipping public have an interest in these rules. The railroad property is protected by them. For these .reasons the proof' as to the abandonment or abrogation of a rule should be cogent and clear. The proof in this case does not in our opinion measure up to the requirements of the law, and a verdict "for the defendant should have been ordered by the trial court. IV. There are other questions urged by the defendant, and some of them we think tenable, but the views above expressed obviate consideration of them. — 641 — Plaintiff urges, however, that the defendant directed him to run fast and make good time. This is true. But that does not mean a direction to violate rules. Granting it then to be true that the defendant was negligent in not displaying the red light, yet had the plaintiff complied with the rules of the company this accident would not have happened. Had he approached this junction point so that he could have stopped his train without “fouling the switch,” to use railroad language, he would have been safe and sound, and two of his fellow workers might have been alive. The very purpose of these rules is to have a double check on these disasters. It was no doubt considered by the railroad officials that some careless operator might overlook the hoisting of the red'signal at a junction, and in the event he did, the rules if followed would still avert the loss of life, limb and property. It is not only proper to take such cautions, but at junctions of this character it might be negligence not to have a double check upon disaster. Hpon the whole we are of opinion that the negligence of the plaintiff precludes his recovery, and the judgment nisi should be reversed. Putting the shoe upon the other foot, had one of the stockmen in the caboose been injured or killed in this wreck no court or jury would have held that this plaintiff was guilty of no negligence, and thereby saved the defendant from damages. Let the judgment be reversed. GRAVES, J. This case has reached a peculiar situation in this court. Three of us are of opinion that there is no case made for plaintiff upon the facts. Ferriss, J., concurs with the views expressed by Graves, P. -J., in Division One, and Brown, J., concurs in the result of the divisional opinion, but for reasons of his own expressed in a separate opinion by him filed. Kennistí, J., in an opinion filed, reached the conclu — 642 — sion that the judgment should he affirmed, in which opinion, Vaiaiant, C. J., concurs. "Woodson, J., in an opinion filed, concurs in much that is said by Kennish, J., but is of opinion that the case should be reversed and remanded on the ground of excessive verdict. Lamm, J., in an opinion filed, concurs in the reasoning of the divisional opinion, but thinks the case should be remanded, to the end that plaintiff might be permitted new evidence upon the question as to when a given rule was promulgated and adopted. The result is we have no opinion. Three of us say there is no case for the plaintiff, and three of us say that there is a case for the plaintiff, and one says that there may be a case for the plaintiff upon a further showing. Those of us who think there is no case for plaintiff have not considered the size of the verdict, that being immaterial in our view of the facts. As expressing our different views the several opinions mentioned will be filed, including the divisional opinion. To the end that there may be a disposition of the case here at this time, we consent that the case may be remanded, but at the same time adhere to our views upon the merits as expressed in the divisional opinion of Graves, P. J., and of Brown, J., written in Banc. Under the circumstances, we deem this the best disposition to make of the case. Ferriss and Brown, JJ., concur in these views.