The opinion
CONCUSSING- OPINION.
BEOWN, J.
I concur in the opinion of brother Graves filed in this case.
The plaintiff contends that whatever rules the defendant had published requiring trains to approach Cole Junction “under full control” had been abandoned by defendant by permitting its employees during a long period of time to run trains through said junction at a speed of twelve or more miles per hour, unless the main train signal or semaphore wás thrown so as to show the red light or stop signal.
Prom a careful reading of plaintiff’s evidence, I am convinced that he did not so understand the rules.
Plaintiff testified that the headlight on his engine only enabled him to see objects on the track 100 feet away; yet. he ran his train into Cole Junction at such speed that he could not stop his train in less than five or six hundred feet. His testimony on that point is as follows:
“Q. Tour-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?’ ... A. I know there was such a rule.
*644 “Q. Now, Cole Junction was a very insignificant place, except the fact that it was a junction point? A. There was no town there.
“Q. No town, and no freight house? A. No, sir; but there was always orders there.
“Q. What do you understand this rule to mean here that says you must not pass those junctions unless the signals and switches are in good condition? A. I will ask you to read the rule just the way it is, if you please, Judge.
“Q. (Reading) ‘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 is clear.’ A. The switches and signals are right?
“Q. Yes — and the track is clear. Now, what do you understand by that? A. Why, if a man went down there and the switch was wrong and he saw it, he would stop.
“Q. Well, what do you understand the rule to mean when it says he must be prepared to stop unless the signals and switches are right and the track is clear? A. He ought to stop.
“Q. Now, I will ask you if you remember these questions and answers in your deposition, which was taken on the 12th day of September — last September (reading): ‘Question: I wish you would tell me what was your understanding of that rule? Answer: To approach Cole Junction at such a speed that you could stop, if something was wrong. ’ Q. Didn’t you answer that question that way? A. Yes, that is right too.
“Q. Now, you were referring to the rule at the foot of the time card then, weren’t you? A. That is the way I understood it.
“Q. Yes; that rule had just been called to your attention in your deposition? (Reading): ‘Question: If anything,was wrong? Answer: If anything was wrong? Question: You not only mean the order board, but anything else that might be wrong there? Is that the way you understand it? Answer: Oh, yes sir.’ Q. You answered it that way, didn’t you? A. Stop for anything that is wrong at any other point too. Any obstruction on the track at any point that you saw would cause a man to stop.
*645 “Q. (Reading): ‘Question: Now, Cole Junction is the junction point where the river route leaves the main line, isn’t it? Answer: Yes, sir.’ Q. You answered that that way, didn’t you? A. If I did not that is the way I should answer.
“Q. And the question above that which I read, and to which you said, ‘Oh, yes,’ you answered that way? A. Yes, sir.
“Q. (Reading): ‘Question: And there is liable to be trains there at any time? Answer: Yes, sir; and at any other station.’ Q. You answered that that way? A. Yes, sir.
“Q. (Reading): ‘Question: By approaching at such speed so that you could look out for anything— that means, so that you could look ahead of you, and if there was anything there, you were supposed to stop and avoid it? Is that'the .idea? Answer: That is it.’ Q. You answered that question that way, didn’t you? A. Yes, sir.
“Q. (Reading): ‘Question: That is, to be able to stop your engine almost at will? Answer: In a reasonable distance.’ Q. You answered that that way, didn’t you? A. Yes.
“Q. Now, what kind of a night was it? A. Very dark night — rainy.
“Q. Was it cloudy? A. Raining.
“Q. Raining at that time? A. Yes, sir.”
Plaintiff testified that it was his duty to approach all stations under such control that he could stop if he received a signal to do so; and as this was undoubtedly his duty under the general rules of the company, the special rule requiring him to approach Cole Junction “under full control,” is absolutely meaningless, if he was authorized, as he claims, to run into that station at twelve miles an hour.
Plaintiff testified that he received' at Tipton Station a message from defendant’s train dispatcher informing him of two certain passenger trains that had cleared Cole Junction; and that said telegram indicated that there would be no obstruction on the track at *646 Cole Junction. However, this testimony, as well as the testimony of plaintiff to the effect that the rule requiring him to approach Cole Junction “under full control,” had been abandoned, is set at naught by a subsequent admission by plaintiff in his evidence that at the time of receiving the message regarding the passenger trains, he also received a warning to approach Cole Junction with that particular train very carefully and “under full control.” On this point, plaintiff testified as follows:
“,Q. Did you get any word from Mr. Crawford, the conductor — did you get any communication from the conductor with that slip of paper or message that was delivered to you by Mr. Atkinson? A. Yes, sir. Q. What was it? A. He said — ‘now, you see I have to say what somebody else told me.’ Q. Well, I will ask you the question, and then you can get at it that way, and then you won’t be in danger of telling anything that is objectionable. Didn’t you get a communication from Mr. Crawford to go into Cole Junction very carefully and under full control?' A. Yes. Q. You got that communication along with this message? A. Yes, sir.”
Even if plaintiff had been permitted in the past to run through Cole Junction at 12 miles an hour, this last message undoubtedly had the effect of reviving the rule which he claims had been abandoned, so far as the running of that particular train was concerned; otherwise, such an order would not have been transmitted to plaintiff. In my judgrbent, the warning gave notice to plaintiff to look out for obstructions on the track at Cole Junction on that particular night.
The plaintiff and other railroad employees differ very much-as to what is meant by the words, “under full control,” but as applied to this particular train on that particular dark, rainy night, I think it clearly meant that plaintiff should, regardless of signals, have kept his train under such complete control that he *647 could stop after lie saw the cars on the track in time to prevent a collision.
That the plaintiff was running his train into Cole Junction on the night of the injury at least five times as fast as the rules of the company and the warning he received at Tipton authorized him to run, is proven to my entire satisfaction by the evidence from plaintiff’s own lips. His recklessness in this regard endangered the lives of many other persons, besides the property of the company for whom he was employed; and his negligent acts resulted in the killing of two men under circumstances that in my judgment amounted to manslaughter.
Entertaining these views, I am of the opinion that the plaintiff should be denied a recovery in this action.