The opinion
CONCURRING OPINION.
LAMM, J.
I concur in so much of the opinion of my learned brother Graves, as relates to error in instructions: As to reversing without remanding, this view of-it seems just to me:
In Banc it was suggested ore tenus (and not denied) that defendant’s printed rule relating to the junction in question was not a new rule, or fresh order, but had been in existence for several years prior to the *643 date indicated by onr present record and had appeared in defendant’s former publications of its rules. If this be a fact, it is of importance on the question whether the verbiage of the rule (to the knowledge of defendant) had received a practical construction, which the employees were acting on, or had been waived by defendant’s acquiescence. The rule is a prominent fact' in this case,, and this court, before finally cutting off plaintiff’s right to recover, should know the truth in that regard.
A new trial will develop the facts and the cause should be remanded for such new trial.