The opinion
Denied July 22, 1919.
On Petition eor Rehearing.
( 181 Pac. 991 .)
McBRIDE, C. J.
In a vigorous petition for rehearing, the soundness of the opinion heretofore rendered is challenged in several particulars.
It is first called to' our attention that in several instances the opinion refers to Guy E. Chapin, the engineer in charge of train 2140, as the “conductor” instead of the “engineer,” and this criticism is technically correct. Train 2140 consisted of a locomotive with tank attached and had no technical conductor, but was in charge of the engineer; but we submit that being in charge of the locomotive, his position approached quite as nearly that of a conductor, as the locomotive and tank approximated to a train, which is what defendant’s witnesses called it. We apologize, and hereafter Mr. Chapin will be known and designated in the Oregon Reports as “Engineer of Train 2140.”
Our attention is also called to the fact that we have inadvertently called the intermediate signal, half a mile east of the North Fork bridge, the “home signal” and this criticism is also correct; but we call attention to the fact that it showed just as red and indicated danger just as effectually as though it had been designated by its proper title, and Engineer Chapin says that it was “red and showed danger.” The opinion nowhere indicates that train 2140 ran past the intermediate signal without stopping. It did stop for five minutes and then, with the danger indication still showing, went ahead at the rate of at least six miles an hour with the knowledge on the part of those operating it that 255 was on the main track half a mile ahead.
11,12. We are also criticised for saying, in effect, that if the tail light of 255 had been burning, the engineer of 2140 — called in the opinion, the “conductor” *182 —could have discovered that fact at a distance of 200 feet east of the bridge, if other conditions had been favorable. Such is the testimony of Hoskins, which, for the purpose of an appeal, is conclusive, but stronger than this is the testimony of Engineer Chapin, who testified as follows upon cross-examination:
“Q. If those tail lights had been burning in the caboose, which you say they were not, you would not have had any difficulty in seeing the end of the caboose and stopping 2140 ?
“A. No, sir.”
This left for the jury the question as to whether the tail lights were burning, and — as shown in the original opinion — they had a right to weigh the statement of a witness having a strong moral interest in the result, against the intrinsic improbability that all three of the tail, or marker lights, which are independent of each other, should have been extinguished, when it had been shown that all three had been burning a little over two miles back; and especially when Engineer Chapin’s testimony, as to natural light conditions, had been contradicted by Hoskins, an entirely disinterested witness.
It is earnestly urged that the testimony shows that 2140 was running “under control” at the time of the accident. It is true that several very estimable gentlemen connected with the railroad, testified that in their opinions such was the case, but, viewed from the standpoint of the rules, their judgment is not sustained. The words “under control” are defined in the defendant’s book of rules, as follows: “Under Control: To be able to stop within the distance track is seen to be clear.” This does not mean to run six miles an hour, which is the maximum speed at which a train may be said to be under control under any cir *183 cumstances, but means such a rate of speed as, under the particular conditions, will enable those in charge of a train to stop in time to avoid accident. If the circumstances are such that objects upon the track may be discovered, a considerable distance ahead, six miles an hour may be a sufficiently low rate of speed, but if there is a considerable downgrade, combined with dark or foggy weather, and no light in front of the train, a speed of one mile an hour may be required in order to conform to the rule. Taking defendant’s testimony alone, there was every condition demanding the most extreme caution. The route was over a heavy downgrade from the summit of a high range of mountains; the locomotive left Kamela in the night, backing down this grade without any light upon the tank, which then constituted the front of the train; what little natural light, that ordinarily would have existed, was diminished by smoke; the intermediate signal east of North Fork showed a train on the main track, about half a mile ahead. Under all these circumstances it was for a jury to say whether defendant’s engineer acted prudently in maintaining a speed of six miles an hour and, considering the force and physical consequences of the impact, whether he in fact was running at so low a rate of speed as that claimed by him. They were the exclusive judges of the value of his testimony as to the conditions and speed of the train, and we think there was sufficient testimony to justify a finding that he was negligent.
It is true that there is evidence on behalf of defendant, tending to explain these circumstances, but the people of this state, in their collective wisdom — or unwisdom — have seen fit to ordain that in law actions, the comparative weight of testimony shall not be examined upon appeal, and, therefore, we are precluded *184 from a full discussion of that subject, having no right to substitute our own judgment for that of the jury.
Our statement, that it was fairly deducible from the evidence, that Fuller had agreed to flag 2140 against No. 4 passenger, is criticised as not borne out by the testimony. Let the testimony speak for itself. On page 218 of the evidence we find the following testimony of Engineer Chapin upon cross-examination:
‘ ‘ Q. And, if necessary, Fuller would flag you against No. 4?
“A. Yes.
“Q. Of course No. 4 was a passenger train?
“Mr. Crawford: I think you are misquoting the witness in saying he was to flag as against No. 4.
‘ ‘ Q. Then Fuller was to flag you and protect you as against No. 4.
“A. Yes.”
Whether sufficient time elapsed between the break* ing in two of train 255 and the -collision to have enabled Puller to get his lantern and fusees and start back east to signal 2140, were questions of fact for the jury. As remarked in the original opinion, it may well be that he was in the act of starting when the collision occurred. The only voice that could have explained his movements is stilled by death, and we are not prepared to say that he, who is shown to have been careful and diligent upon other occasions during the trip, was neglecting his duty and recklessly exposing his own life in this instance.
Our attention is called to the fact that, the train order for 2140 is in the transcript. This criticism is correct, although the fact itself is not material. The order reads: “September 3, 1917. Engine 2140, run extra Kamela to Pilot Eock Junction; take siding, meet extra 2162 east at Duncan.” No time of starting *185 is given. How long 2140 would have been delayed at Kamela, in order to have turned around and proceeded west with the locomotive in front, does not appear. There is a long double track at Kamela and the train sheets indicate that the only train there when 2140 left, was the one 2140 had helped to pull up the grade to that point. This train was due to proceed on its eastward course and it would seem, under the conditions, reasonable prudence would have dictated that 2140 should have delayed its departure a few minutes and turned around, so its engineer might have the benefit of the powerful lights on the locomotive on the westward trip. At all events, the order does not indicate that 2140 was required to run backward.
"While it is not negligence per se to run a train backward, and while it is not unusual for trains to be so run, especially in daylight and for comparatively short distances, conditions may exist when so operating a train, and especially in the dark and down steep grades and without lights sufficient to indicate possible obstruction on the track, may constitute negligence, and this is as far as the original opinion goes or was intended to Co.
The court’s instruction as to the headlight was, we think, sufficiently discussed in the original opinion. We think it fair to assume that the headlight, required by the Interstate Commerce Commission, which is shown to be one of high power, supposed to disclose objects one thousand feet ahead of the train, is the standard headlight, made so by the order and by general acquiescence and used all over the country, and this, evidently, was what was in the court’s mind when the instruction complained of was given. The complaint charged, in substance, that neglect to have such a light on the west end of the train was one of *186 the causes contributing to the accident. We are of the opinion that'there is evidence tending to show that if such a light had been maintained, the engineer of 2140 would have seen the caboose of 255 in time to have stopped his train; so that in any event it was not error for the court to instruct as it did in regard to that branch of the case.
The objection urged seems more to the court submitting to the jury the question of the propriety of running without the light particularly described in the instruction, rather than the necessity of having some kind of light. Had there been any light whatever on the tank, and a dispute as to its sufficiency, an instruction of the character indicated might possibly have been prejudicial; but it is conceded that there was no light of any kind on the- tank except the markers, which it is also conceded were not useful in enabling the persons operating the train to discern obstructions on the track, so the instruction in substance left the jury to determine whether it was negligence for defendant’s servants to operate the train without lights under the conditions disclosed by the testimony.
The jury were fully instructed in accordance with the contention of defendant as to Fuller’s duty to go back and flag trains when his own train was delayed upon the track; whether he had time to do this after he became aware that his train was more than momentarily delayed, for the purpose of heading in, was left to the jury. Whether there was time for him to have gotten his lantern and fusees and got out of the caboose, was a question of fact for the jury. While, in view of the testimony and the instruction of the court, the statement in the original opinion that “The rule does not absolutely require the flagman to go back with stop signals every time the train stops,” *187 etc., may be in the nature of dictum, the writer, speaking for himself, is firmly of the opinion that the rule bears the construction indicated.
Taken as a whole, we are of the opinion that the trial and instructions were eminently fair to the defendant, and that no substantial error was committed to its prejudice; and that while this court-sitting as a jury of seven to try the facts, might come to a different conclusion from that arrived at by the jury that tried the cause, there is sufficient evidence to support their finding.
We adhere to the conclusion reached in the original opinion. Affirmed. Rehearing Denied.