The opinion
McCulloch, C. J. (dissenting). The complaint contains no charge of negligence in failing to provide adequate rules for the safetv of employees of the company working in the yards. ' The only charge of negligence in the complaint is that the trainmen failed to keep a lookout and in failing to. give a signal. But, even if there had been such a charge of negligence with respect to the failure to provide a rule, it would have been the duty of the court to determine the reasonableness of that rule and not submit it to the jury, and the omission to provide for the back-up signal did not make the rule unreasonable if there was a rule requiring that the bell be rung. There would have been nothing to submit, to the jury in regard to negligence in failing to provide an adequate rule for the safety of employees, even if the complaint had contained such a charge of negligence.
It .seems, to me that, according- to the undisputed evidence, there was no rule requiring a back-up signal to be given in the yards for the protection of employees. The engineer testified that there was no such rule or custom, and Garner’s testimony is not in conflict with that. He did not state, in so many words, that there was m> such rule or custom, but he stated that the back-up signal was rarely ever given in the yards. In fact, he stated that he had no recollection of a single instance where it had been done. Now, since there was no rule or custom providing for the back-up signal, I fail to see how a charge of negligence can be based on failing to give such a signal, it being shown by undisputed testimony that the bell was ringing at the time the train moved backward. If there was no rule or custom to that effect, then appellant’s intestate had no right to assume that the train would not be moved without giving the back-up signal.
Mr. Justice Wood concurs.