It is my opintion that a rehearing should have been granted in this case. This was a suit against the defendant, railway company, to recover damages under the Federal Employer's Liability Act for the wrongful death of Thomas C. Smith, the conductor in charge of defendant's train at the time of his death. The case was submitted to the jury. The jury returned a unanimous verdict in favor of the plaintiff, the administratrix of the estate of said decedent, against the railway company, assessing the amount of damages in the sum of $20,000, which was approved by the trial court. This court reverses the action of the trial court and remands the case, with directions to vacate the judgment. The court states in its opinion, in part, as follows:
"We are unable to find from the record that there was any negligence on the part of defendant in this action. The verdict of the jury and judgment of the trial court could not have been based on evidence of negligence, for there was none. The verdict and judgment are contrary to the evidence and contrary to the law. For these reasons the judgment of the trial court is reversed and the cause is remanded to that court, with directions to vacate the judgment and for *Page 293 further proceedings not inconsistent herewith."
It appears that the defendant, railway company, on the night of the accident in question was operating a through freight train from El Reno, Okla., to Caldwell, Kan., and that while said freight train was at Enid, Okla., the engine and tender were separated from said train of cars for the purpose of coaling. It was during this movement of the engine and tender over the tracks that the tender and engine were backed over said decedent. It is the contention of the plaintiff that conductor Smith was endeavoring to route the engine and tender to the main line track to the coal chute at the time of this unfortunate tragedy.
Counsel for plaintiff rely not only on the negligence of the engineer in backing his engine and tender down the wrong track when he knew, or by the exercise of ordinary care should have known, that he was wrong, but also on the negligence of the employees of the defendant in violating rule 104 A which rule is as follows:
"Switches on sidings or cross-over tracks or of a track connecting another track with the main track, must not be turned so as to permit of a movement towards the main track except while such movement is being made. All other switches must be kept set if possible so as to deflect or derail cars before they foul main line, should they be disturbed by high wind or other causes. Switches connecting other tracks with sidings must be kept set for the siding."
In their petition for rehearing, counsel for plaintiff state, in part, as follows:
"As our first ground for granting of a rehearing in this cause, we unhesitatingly assert that this court has absolutely overlooked and failed to appreciate the direct and positive evidence in the case bearing upon the two essential grounds of negligence on which the case was sent to the jury, namely, the negligence of the switching crew in leaving the switch which controlled the cross-over from the passing track to the main line track set for the main line track which was in direct violation of Rule 104 A of the defendant railway company and without which acts of negligence this unfortunate tragedy could not and would not have occurred and which acts of negligence, coupled with the negligence of Ben Neville, to which we will presently refer, united and combine in producing the death of Conductor Smith.
"We search the opinion of the court in this case in vain to find any reference to the negligence of the switching crew in leaving this switch set so as to deflect cars from the passing track to the main line track and yet this is one of the outstanding acts of negligence in the case and one of the grounds upon which the case was submitted to the jury by the trial court. If the switching crew had left the switch that controlled the cross-over to the main track properly set as provided by Rule 104-A, this tragedy could not have occurred.
"It has been decided so many times as to require no citation of authorities that Conductor Smith had the right to rely on observance of the rules of the company by its employees, and he undoubtedly did so rely in this, case, and the evidence shows that he did so rely, not by reason of anything said or done by him because he is dead, but by reason of his actions and conduct which speak louder than anything he could have testified to if alive.
"When his train pulled north through this switch stand, it was left straight ahead for the passing track. The rules of the railroad company required that it be so left except when in actual operation and a movement was being made through it. When he returned to it no movement was being made through it. The switching crew had done their work and gone on. It was in the darkness of the night, and waiving for the time being the fact that the lights on this switch stand were set wrong, he had the right to assume that the switch was lined up in the manner required by the rules. * * *
"2. The first thing that Conductor Smith did was to throw the switch that controlled the cross-over from the passing track to the main line and then go over to the main line track and throw the main line switch so that the engine and tender would enter the main line. There is no possible explanation of his actions and conduct in so doing in connection with the other facts and circumstances in the case except that he intended for the engine and tender to go through the cross-over to the main line and proceed down it to the coal chutes. It is erroneous to assume, as is done in the opinion in another place, that Conductor Smith might have thought that he would have the engine of first No. 94 back down the passing track past the switch stand on the passing track so as to permit No. 95 to pass over the switch on to the main line and get out of the way so that the engine of first No. 94 might take coal at the coal chute and that the engineer was justified in thinking that that was the intention of the conductor. Who would suggest that Conductor Smith would be setting the switch stand for No. 95 that was approaching from the north? He was not its conductor nor its engineer nor a yard official nor anyone who had any authority to set the switches for approaching No. 95. He had nothing to do with the movements of No. 95, and there is no evidence in the case that even suggests that he was setting the switch for No. 95. What he was doing and *Page 294 nothing else, was setting the switch so that his engine and tender would go on over to the main track and then down to the coal chutes leaving the trainmen and yard officials who had control of the movements of No. 95 to direct where and how it should go. * * *
"This court says that the engineer testified that he did not know which way the conductor wanted him to take the engine to the coal chutes. Granted. The answer to it is that the jury did not believe him, for the evidence showed otherwise, and the jury had the benefit of seeing the witnesses upon the stand and reached their own conclusions as to their veracity while this court has nothing but the printed page before it.
"Under the Employers' Liability Law, even if there was negligence on the part of Conductor Smith, yet, if the negligence of the other employees, which either in whole or in part caused or contributed to the death of Conductor Smith, the plaintiff is entitled to recover. Certainly no one could hear the evidence in this case and not reach the conclusion that the negligence of the other employees of the defendant at least contributed to the death of Conductor Smith, and we confidently assert that the record shows that his death was caused entirely by their negligence."
It appears to me that these contentions have merit. In my opinion, the court confuses the negligence, if any, on the part of the engineer as the sole question for determination. The majority opinion ignores another ground of negligence relied upon by plaintiff relative to the acts of the switching crew concerning the manner in which it left the switch as to the main line track. It was only necessary for plaintiff to establish a single act of negligence charged in the petition. The passing track appears to have had an approximate length of practically 9,000 feet, and at the place of the accident was but four or five feet from the main line track. Exhaustive and detailed evidence was presented to the jury on the facts and circumstances surrounding this accident relative to the different tracks, switches, lights, coal chutes, the acts of the employees, and orders, and a review of this record does not justify in my opinion that the verdict of the jury was found on speculation, and that there was no primary negligence shown. The jury had all the facts and circumstances before it. It was their duty to pass on those. facts and circumstances as applied to the issues and the instructions submitted to them by the trial court. The jury found the issues in favor of the plaintiff and against the defendant on the issues on the question of negligence. In my opinion, the verdict should stand. At the most, as I view this record, the conductor could only be charged with contributory negligence, and, under the Federal Employers' Liability Act, even though he was guilty of negligence, this would not preclude a recovery. The court properly instructed on this phase of the case, in its instruction No. 15. For these reasons, I dissent. I am authorized to state that Mr. Justice CULLISON concurs in views herein expressed.
Note. — See under (1), annotation in 53 A. L. R. 1494; 20 R. C. L. 184; R. C. L. Perm. Supp. p. 4854; R. C. L. Pocket Part, title Negligence, § 155. (2), 8 R. C. L. 858; R. C. L. Perm. Supp. p. 2336; R. C. L. Pocket Part, title Death, § 131. (4, 9), 20 R. C. L. 181; R. C. L. Perm. Supp. p. 4854; R. C. L. Pocket Part, title Negligence, § 149. (7), 20 R. C. L. 10, 11; R. C. L. Perm. Supp. p. 4802; R. C. L. Pocket Part, title Negligence, § 7.