The opinion
DISSENTING OPINION.
KENNISH, J.
The foregoing opinion holds that prejudicial error was committed against the defendant (1) in the refusal of the court to give certain requested instructions, and (2) in the refusal of an instruction at the close of the evidence, directing a verdict for the defendant. The conclusion thus reached as to the first error would result in reversing the judgment and remanding the cause for a new trial, while under the second the verdict of the jury is not only set aside and the judgment thereon reversed, but the plaintiff is denied the right to have a jury again to pass upon his case. I respectfully dissent as to both propositions.
I. Appellant contended that error was committed in the refusal of its instruction numbered 7, and that contention this court sustains. That instruction is as follows:
“The court instructs the jury that if ypu-believe from all of the evidence in this case that it was the duty of the plaintiff when approaching the junction of *648 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 stopi if he could not see said light, and if you further believe 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 accident 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 Cole Junction was out of repair and the light therein showed white, and that the train dispatcher, the telegraph operator at Cole 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.”
Instructions numbered 9, 10 and 11, given at the defendant’s request, are as follows:
“9. The court instructs the jury that if they believe from the evidence in the case that the rules of the Missouri Pacific Railway Company in force on June 21, 1908, required plaintiff, before crossing with his train the junction point of the main and river line tracks of the Missouri Pacific Railway, to ascertain that the switch at said' junction point was set for the main line, or rather not set against the main line, and that the track at said junction point was unobstructed, anj said plaintiff failed or neglected to ascertain either of said facts before crossing said junction point, plaintiff was guilty of negligence; and if you further believe from the evidence that said negligence directly contributed to the collision in which plaintiff was injured, your verdict must be for the defendant.
“10. The court instructs the jury that if you be-. Heve from the evidence in the case that the rules of the defendant, in force on June 21, 1903, applicable to *649 trains approaching the junction point of the main line track and ■ the river line track at C'ole 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 case that the plaintiff did not observe and obey said rules, but approached the junction point of said two tracks not prepared to stop and without 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 is your duty as jurors to return a verdict for the defendant.
‘ ‘ 11. The court instructs the jury that it was not only the right, but also the duty, of defendant to make rules fo.r the guidance of its engineers in the operation of its trains, and it was the duty of the plaintiff to observe and obey such rules, and to approach the junction point of the main line track and the river line track at Cole Junction prepared to stop, unless the switch at said point was right and the track, at said point was clear; and if you believe from all the evidence in the case that he failed to do so, and that such failure to do so in any way directly contributed to the accident in question, then the plaintiff is not entitled to recover and it is your duty as jurors to return a verdict for the defendant.”
The rules introduced in evidence by the defendant and relied upon in connection with other testimony as supplying a basis for the foregoing instructions, including instruction numbered 7 refused, were the following:
(Time-Card Rule): “All trains will approach Cole Junction and the crossover just west of end of double track at Independence under full control.
*650 “27. 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.
“98. 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.”
It appears from the foregoing that by instruction numbered 7 the defendant sought to present to the jury its contention that it was the duty of the plaintiff to approach the junction “prepared to stop, unless the switches and signals are right, and the track is clear. ’ ’ Instruction numbered 10 was intended to cover the same phase of the defense and in addition the other phase as to the duty of the plaintiff to approach the junction with the train “under full control” as required by the time-card rule. But, as pointed out in the opinion of the court herein, instruction numbered 10 was so worded that it required a finding of negligence under both rules (instead of one) to authorize a verdict for the defendant, while the instruction refused authorized such verdict if the jury found negligence as to the switch lights alone. However, as the theory of the defense contained in instruction numbered 7 separately presented in both numbers 9' and 11, the defendant was not prejudiced by the refusal of number 7. Indeed, instruction numbered 7 was objectionable in form for the reason that no rule required the plaintiff “to watch for the light in the switch stand.” It was also clearly objectionable for the reason that in the concluding clause the court assumed as a matter of law the correctness of the defendant’s contention that the semaphore light being white did not relieve the plaintiff from contributory negligence, although it was maintained by the plaintiff under his testimony that it did. Instruction numbered 11, while covering the subject of the instruction *651 refused, was clearly more favorable than defendant was entitled to. It follows from the foregoing observations that in the opinion of the writer prejudicial error was not committed by the refusal of defendant’s said instruction.
II. It was not contended by the defendant, nor is it held by this court, that the plaintiff failed to allege or prove negligence on the part of the company. It was shown by satisfactory testimony that plaintiff was given a train of perishable freight at Pleasant Hill, a point about 120 miles west of Cole Junction, the scene of the wreck, at about five o ’clock in the evening, and was directed by a superior officer of the company to make good time in order that his Cargo might be upon the St. Louis market the .next morning; that on his arrival at the town of Tipton, about thirty-three miles west of said junction, he was handed a written order giving him a “clearance” at Cole Junction, which order authorized him to go through said junction without stopping, if the light in the order board was clear; that when the train came within view of the light in the said order board, about 9 o’clock at night the white light signal was up, meaning a clear track to the next station. Instead of there being a clear track, an extra train had been ordered from Jefferson City west to Cole Junction and given “the right of track over this train Mr. Finnegan was handling;” that this extra train was upon the track at Cole Junction upon which plaintiff’s train was running when the latter approached under 'clearance orders; that plaintiff was not informed of such extra train by time card, message or signal, and that he had no knowledge of such obstruction on the track until it was disclosed by the headlight of his engine when within one hundred feet. The testimony as to those facts was sufficient to take the plaintiff’s case to the jury upon the negligence relied upon in the petition, and need receive but little *652 further consideration in determining whether there exists warrant of law for the conclusion arrived at in the opinion of this court.
As one of the defenses to the action, the defendant alleged that plaintiff was guilty of negligence in running his train in violation of the rules of the company at the time of the accident; that such negligence contributed to the injury and, therefore, notwithstanding the negligence of .the company, bars plaintiff’s right to recover. That is the defense which this court has held fatal to plaintiff’s case, and the controversy is thus narrowed to the one question: Is the decision of this case upon that issue in harmony with the law? The writer maintains that it is not.
A question of procedure should be referred to before taking up the testimony On the issue of contributory negligence, namely: The rule as to the duty of the court generally to give or refuse an instruction in the nature of a demurrer to the evidence at the close of the testimony, and the application of such rule with reference to the defense of contributory negligence, as in the case in hand.
The law upon this question is so well established that it is unnecessary to insert lengthy quotations from the books. In the case of Mockowik v. Railroad, 196 Mo. l. c. 567, this court, through Lamm, J., discussing the subject of a demurrer to the testimony where contributory negligence was the defense, said: ££In determining thjs question defendant’s testimony, where controverted, must be set to one side; because plaintiff in its consideration is entitled not alone to the full force of all uncontroverted facts, but to the full force of all his controverted evidence, and is to be allowed every reasonable and favorable inference of fact deduced from all the evidence and, hence, if there can be two views of his conduct entertained by fair-minded men, one condemning and one exonerating him, he was entitled to the verdict of a jury on his contributory *653 negligence. If, however, there was but one view to be entertained by reasonable men of his conduct, and that view adverse to him, the question resolves itself into a matter of law.” In 2 Thompson on Law of Negligence, 1179, the law upon the same subject is stated1 as follows: ‘ ‘ Where the facts are undisputed, or where but one reasonable inference can be drawn from them, the question is one of law for the court; hut where the facts are left by the evidence in dispute, or where fair minds might draw different conclusions from them, it must go to the jury, 'to resolve the dispute in the one case, or to draw the inference in the other. ’ ’ See also Holloway v. Kansas City, 184 Mo. 19 ; Klockenbrink v. Railroad, 172 Mo. 678 ; Phelan v. Paving Co., 227 Mo. 666 .
Under this rule it is not the province of the court tq consider the weight of the testimony, but only its tendency to prove issuable facts, and then only such testimony as is favorable to plaintiff’s case. To such an extent does the rule go that even the plaintiff’s own testimony may be disregarded, if the testimony of other witnesses entitles him to go to the jury. [Knorpp v. Wagner, 195 Mo. 637 ; Huff v. Railroad, 213 Mo. 495 ; 1 Ency. of Evidence, 486] It follows that all such matters as the suggestion that perjury may have been committed at the trial, that a witness for the plaintiff was discharged by the defendant and had a suit pending against it, that a certain fact is proven to the “entire satisfaction” of this court, or as to certain testimony against plaintiff, elicited on cross-examination, when such testimony was elsewhere explained or contradicted by other testimony or even by the same witness, are foreign to the duty of the court in determining whether such an instruction should be given. They may well be urged in argument to a jury, but they have no place in this tribunal, upon the issue in hand. Instead of searching out the testimony most favorable to the demurrant and most un *654 favorable to the plaintiff, in passing upon the duty of the court in giving or refusing the demurrer, the rule requires exactly the opposite.
Coming now to the issue of contributory negligence and the testimony in this case, let us consider what appears in the record. The defendant, to support that defense, relied upon certain rules of the company as to the handling of the train by the engineer, and contended that the negligent violation of such rules contributed to and was the proximate cause of the injury. I do not understand that plaintiff admitted disobedience of the rules and relied upon facts showing a waiver of their enforcement, as the majority opinion holds. On the contrary the plaintiff testified, and was corroborated therein by a number of witnesses, that he complied with the rules as he and others had interpreted them in his six years ’ continuous train service through this station. If, however, the rules were to be construed as testified to by the defendant’s witnesses, then he contended that such rules, with the defendant’s knowledge, had not been enforced, and therefore were waived and could not be invoked as a defense to his action. As to whether the interpretation of the written rules was a proper subject for the introduction of testimony, we shall not stop to inquire, for the reason that the defendant was the first to introduce such testimony and cannot be heard to complain that testimony was also admitted on the same issue on behalf of the plaintiff. But the defendant did) not stop with introducing testimony in support of the construction of its rules. It submitted such construction as an issue of fact to be determined by the jury.
Two issues were therefore presented and testimony thereon introduced by each party. These issuer were: (1) did the plaintiff, in running his train, violate the rules of the company, resulting in the wreck and his consequent injuries? and (2) if the rules were violated, had the observance thereof been waived by practice *655 and usage, with the knowledge of the company that they were not followed in the operation of trains at that point?
Upon the first point the testimony for plaintiff tended to prove that the rule requiring all trains to approach Cole Junction under full control, meant, and! had been so construed in the operation of trains, that the engineer should have his train under full control approaching the junction, when and until he came in view of the order board, and, that if the light in the order board was red, or if white, and other trains had the right of way over his train from Cole Junction to Jefferson City, the next station, then he should stop before reaching the junction. If, on the other hand, he had been given a clearance order as received by him at Tipton, then, unless the light in the order board was red, it was his duty, and the rules did not forbid it, to “speed up” before reaching the junction, and that in such cases he was not required to continue under full control until he had passed the junction. That the plaintiff was running his train into the junction in accordance with the said rule as thus understood, was testified to by a number of witnesses, including the conductor on the train at the time, and the train dispatcher who had sent the clearance order to Tipton. Plaintiff himself, having been in the service of the defendant for fifteen years and having operated a train through this same junction for six years, testified that he went into the junction that night as he had always done, under similar conditions, during all of that time. The conductor in charge of the train was in the caboose as the train approached and saw the white light in the order board and the speed of the. train,' and testified at the trial that the train came in sight of the order board at a speed of fifteen to eighteen miles an hour and under full control. Asked how freight trains came into Cole Junction at nighttime, he answered: “Why, they would *656 come in there under control until they seen how the signal was all right — the signboard. Q. And then what would they do? A. Well, if they had nothing to stop them they would go ahead. Q. In what way did they go ahead? A. Why, go ahead. It means pick up1 speed.” He was further asked what the message received at Tipton indicated as to going through Cole Junction without stopping, and answered: “Well, that indicated that we didn’t have to stop there as there were no other trains had any rights over us. ’ ’
The train dispatcher testified that he told plaintiff his train was a delayed train and “to give them the best he had” or words to that effect. That he meant “that is, make good time; we didn’t want any delays; wanted them to run fast, and it was necessary to run fast in order to get that train to St. Louis in time for the morning market.” That he was positive he “told” the operator at Tipton that trains 15 and 16 had arrived at Cole Junction, and that it was the duty of the operator to give the order to the conductor of plaintiff’s train. That after ordering the extra from Jefferson City west to Cole Junction, an order was given to the operator at the latter point to display the red signal in the order board so as to stop plaintiff’s train. That no other trains had rights over plaintiff’s train between Cole Junction and Jefferson City. Answering the question as to the course plaintiff should have taken when he arrived at Cole Junction, if he had acted according to the custom, he said: “He would proceed without stopping there, provided the train order board wasn’t against him. Q. If the order board shows red, what does that mean? A. It means stop: Q. If it shows white, what does that mean? A. Proceed; clear.”
There was abundant testimony tending to prove that plaintiff had his train under full control when he approached the junction and saw the white light on the order board, and that his increase of spe0^ *657 thereafter until the collision was not in violation of the rules as understood and followed by plaintiff and other engineers.
There was much testimony introduced by defendant and brought out on cross-examination of plaintiff’s witnesses, in conflict with the foregoing. Some of it will be found in the other opinions herein, and the defendant’s instructions above set out in this dissent will show the purport of such testimony. This conflict of testimony presented a question of fact to be determined by the jury.
Plaintiff’s testimony tended to prove that his duty under the rule requiring him to see that the switches were right and the track clear, etc., was that in coming into a station or junction he was required to see that the switches, which if open would take his train onto a sidetrack, were right, but that when the order board and clearance gave him the right to “speed up” and proceed without stopping, he relied upon that signal as to the switches going out of the junction, which did not lead off from the main track in the direction in which plaintiff’s train was going; that there was little danger if such switch was not right, as the train itself would bring it into position. This testimony, being in conflict with that of the defendant as to the interpretation of the rules, presented an issue of fact to be determined by the jury, and this was the theory adopted by the defendant, as is shown by the defendant’s testimony and the instructions based thereon, given by the court at defendant’s request.
Upon the assumption that the rules were correctly interpreted by the defendant’s testimony, there was ample evidence to submit to the jury the issue as to whether a custom and usage was in force showing an' abandonment of such rules and that such custom was known to the defendant. There is no lack of tes *658 timony tending to prove the existence of the custom and that plaintiff was running his train into the junction that night in accordance with it. The question remains, was there testimony tending to show knowledge thereof by the defendant? The law as to what is sufficient to charge the defendant with knowledge of such a custom and usage was stated by Biaok, J., speaking for this court, in the case of Barry v. Railroad, 98 Mo. l. c. 69, as follows: “But it is further insisted that there is no evidence that the superior officers knew of the existence of such a usage. Knowledge of the usage need not be shown by direct evidence that these officers saw the custom practiced. Notice may be inferred from circumstances. It may be implied from the notoriety of the custom. [Lawson on Usages & Customs, sec. 21.] The evidence in this case tends to show that the usage was well known among the defendant’s employees and of long standing, and from this the jury could with propriety infer notice to the defendant’s officers.'”
Was plaintiff’s testimony sufficient to take the case to the jury upon the issue of waiver, under the foregoing rule? It was shown that trains had been running for years as plaintiff was running his train that night. Plaintiff had been on that line for six years, operating trains as an engineer under different conductors. They must have known, and the testimony is that the employees generally did know, of such a custom. Even that night the conductor in charge of the train made no objection to the manner in which plaintiff was taking it into the junction, but as a witness gave his approval of plaintiff’s conduct. True, his testimony was contradictory and inconsistent, to such an extent as to cause the court to remark in explanation thereof: “He is an employee of the defendant and he doesn’t want to lose his job; and he is a friend of the plaintiff and doesn’t want to hurt him, is. the way it looks to me.” But we have no con *659 cern with inconsistencies brought out under such pressure on cross-examination, upon the question now under review! That was a matter solely for the jury. A train sheet was offered in evidence showing that the time of every train passing through a register station was made a matter of record. These stations were only a few miles apart, and it is inconceivable that these trains should have been running through Cole Junction at a speed of from fifteen to thirty miles an hour, when compliance with the rules as construed by defendant’s witnesses would have limited them to five miles an hour, and the officials of the company have remained in ignorance of such practice. Besides, while so far as the operation of the train is concerned, the conductor is not a vice-principal of the engineer, yet, as to his knowledge of a violation of the rules of the company, adopted for the safety of the lives of the public and of the employees, as well as the care of the property under his control, no good reason can be given why he should not be regarded as a vice-principal and representative of the company. Upon this subject, this court in the case of Tabor v. Railroad, 210 Mo. l. c. 399, quoted with approval from Thompson on Negligence, the following: “The conductor of a railway train is the master of the train, in the same sense in which the captain of a ship at sea is the master of the ship. With respect to those measures which are necessary for the safety of the persons on' board the train, he wields the whole power of the railway company, except in so far as those powers have been specially committed to the engineer or to other servants. The better view, therefore, ascribes to him the status and authority of a vice-principal of the railway company, so as to render it liable for his negligence resulting in an injury to its subordinate servants upon the same train.” The conductors who had had charge of trains running through this junction, on which plaintiff had served as engi *660 neer, must have known that he ran his train at a speed of from fifteen to thirty miles an hour instead of five' miles an hour, and if they knew it, it is not an unreasonable presumption that the higher officers of the company also had such knowledge. ' In any event such facts were competent evidence for the jury in determining whether or not the rules were not enforced, with the knowledge of the company. Under the law applicable in such cases we see no escape from the conclusion that there was testimony from which the jury might have inferred knowledge that the rules governing the running of trains through Cole Junction were not observed, that is, if such rules were to be construed in accordance with the testimony of defendant’s witnesses at the trial. If plaintiff’s testimony as to their construction is correct, then the rules were not violated and knowledge of the company is immaterial.
In the opinion of this court much stress is laid upon the fact that the time-card rule requiring trains to approach Cole Junction under full control was first promulgated February 8, 1903, less than six months before the wreck, and plaintiff has filed in this court the affidavits of a number of trainmen who had rendered service on that line and were familiar with such rule, to prove that it was in effect long before. that date. The point made, based upon the assumed promulgation of that rule, is that as it had been in force so short a time, much of the plaintiff’s testimony as to the usage of running through Cole Junction for years preceding the wreck would have no probative force as tending to prove nonenforcement of the time-card rule. The testimony shows that the time card (the “Spring Card” as one witness called it) under which trains were running at that time and upon which this rule was printed, was dated February 8,1903, but I have searched the record in vain for any testimony that the rule was first promulgated upon *661 that date. The strong inference is that new time cards were issued from time to time, with the changes made in schedules, for the guidance of the employees; that the same rules as to the running of trains were printed in the new cards as in the old, and that the rule referred to had been in force long before the date of the last time card. But whether the rule was first put in force upon the date of the time card or years before, that fact would not have the effect of changing the issue raised by plaintiff’s testimony from an issue of fact for the jury to an issue of law for the court.
Plaintiff had long been in the service of the defendant and, so far as the record discloses, had been a faithful servant. Until the night the operator at Cole Junction made the fatal mistake (whether because of -a defective appliance is not important) of placing in the signal board a white light inviting plaintiff to proceed with his train, instead of a red light warning him to stop, no charge of negligence had ever been imputed to him. Indeed, no stronger indorsement of his care and fidelity in the discharge of his duties could be given by the master than the fact that after such a term of service he was placed in a position of such grave responsibility. In my opinion the evidence at least tended to prove that because of the mistake of the operator, and without plaintiff’s fault, he was mangled, disfigured and almost blinded for life, and if it did, then plaintiff had the right under the law to have a jury say whether he was entitled to compensation for his injuries, or whether he was responsible for the fearful and fatal wreck.
In my opinion the judgment should be affirmed.
■Valliant, G. J., concurs; Woodson, J., concurs, except that for reasons stated in a separate opinion he holds the judgment should be reversed and the cause remanded for a new trial.