ON PETITION FOR REHEARING. Rule 142, in force on appellant's railroad at the time of appellee's injury, contained the following provisions: "Form F. Extra trains No. 142. Car No. * * * will display signals and run extra from * * * to * * * Examples. (1) `Car No. 402 will run extra from Berber to Gaza.' * * * The authority to occupy a specified portion of the track as an extra, while working, will be given in the following form: (2) `Car No. 20 will work as an extra from 7 A.M. until 6 P.M. between Berne and Turin.' * * * A work train when met or overtaken by an extra must allow it to pass without unnecessary detention. When the conditions are such that it may be considered desirable to require that work trains shall at all times protect themselves while in working limits, this may be done under the following arrangement. To example (2) add the following words: (6) `Protecting itself against all trains.' A train receiving this order must, whether standing or moving, protect itself within *Page 252 the working limits, and in both directions on single track, against all trains. When an extra receives orders to run over working limits, it must be advised that the work train is within these limits, by adding to (1) the words: (7) `Car 20 is working as an extra between Berne and Turin.' A train receiving this order must run expecting to find the work train within the limits named."
The undisputed evidence introduced by plaintiff (including his own testimony) is that he was operating car No. 8 as an extra work train on a single track railroad, under an order that 11. read: "Car 8 will work as an extra between Watson and Sellersburg from 7:17 a.m. until 4:45 p.m. Protect against all trains"; that car No. 301 was being run north from Watson toward Sellersburg under an order given to the motorman and conductor of that car as follows: "Meet train No. 64 at Bridge Siding. Car 8 is working between Watson and Sellersburg"; that in rounding a curve toward the point where the collision occurred, plaintiff actually saw the other car when it was 150 to 200 feet away (other witnesses saying the distance was much greater when they came into plain view of each other); and plaintiff also testified that his car (No. 8) was running about twelve miles an hour at the time, and that he brought it practically to a complete stop in running the next fifty feet or less; that with a dry track, if the sand would work, a man could stop a car running twelve miles an hour within thirty to fifty feet, or possibly less, and that the track was dry that day; that after the two cars came within sight of each other the crew of No. 301 jumped off, and it then ran 100 feet or more to the place where the collision occurred. And the testimony of other witnesses differed from his testimony in these particulars only in that they said that his car was running much *Page 253 faster and ran much farther after he began to try to stop it before the collision occurred. This evidence clearly showed that whether or not the train dispatcher was guilty of any negligence as charged in the complaint, the injury was not caused by such alleged negligence on his part, but was due to the operation of one or the other, or both, of the cars in disobedience of the rules and orders above set out. Where both cars were being operated under said rules, merely giving an order that extra car 301, with notice that car 8 was working between Watson and Sellersburg, should run between those stations, after having given car 8 an order to work there and to "protect against all trains," was not enough to constitute actionable negligence of the train dispatcher.
The provisions also found in Rule 142 forbidding another extra to be run over that part of the track where a work extra is operating "without provision for meeting or passing said work train," and giving a form in which an order may be given to an extra to protect itself against a designated work extra car, are not inconsistent with and do not affect the force of the provisions of the rule, as above set out and construed, for ordering a work car to "protect itself against all trains," and for ordering an extra to be run into the territory in which a work car is operating under such an order, upon being advised by a statement in the order, itself, that the work car is working extra within the limits named.
Plaintiff having testified at considerable length, in answer to questions propounded by his own attorneys, to facts not required to be shown in order to make out his case in chief, but 12. tending merely to rebut anticipated defenses, as that he did not know the north-bound extra would be sent or was coming into his work limits until he saw it approaching, *Page 254 that a hill and some bushes were on the inner side of the curve around which he was running, etc., he was subject to cross-examination about the matters concerning which he had voluntarily so testified, notwithstanding the questions asked on cross-examination may have related to facts of which defendant had the burden of proof.
The petition for a rehearing is overruled.