I concur. With respect to paragraphs 9, 13, and 14 of the court's charge and complained of by the appellant. I wish to add this: The substance of paragraph 9 is that it was the duty of the plaintiff as a fireman to keep a lookout for signals affecting the movement of the train and when practicable to communicate the position of the signals to the engineer; that if, in the discharge of such duty, the plaintiff, as the train approached the signal near the east portal of tunnel No. 4 (signal 44), in the exercise of reasonable care could have discovered that the signal indicated stop and communicated such fact to the engineer in time to have stopped the train and avoided the accident, and if the plaintiff failed to do so, and the accident would not have occurred but for such failure, the plaintiff was guilty of negligence, and if such negligence was the sole proximate causeof the accident, he could not recover; but if the proximate cause of the accident was the result of the combined negligence of the plaintiff and of the engineer or another employee or employees of the defendant, then the plaintiff for such reason was not barred recovery but was not entitled to recover the full amount of damages sustained by him, the jury being required to diminish such damages, as elsewhere charged, in proportion to the amount of negligence attributable to the plaintiff. In other words, if on the hypotheses stated, the jury found the plaintiff guilty of negligence, the court left it to them to determine whether such negligence was the sole proximate cause of the accident, or whether the proximate cause thereof was the result of the *Page 83 combined negligence of the plaintiff and of the engineer or other employee or employees of the defendant.
The effect of the verdict as rendered by the jury was that the plaintiff was not guilty of any negligence and thus the jury in no particular diminished the amount of damages to which they found the plaintiff was entitled. That on the record the jury could have so found is not seriously disputed. What, in such particular, is contended by the appellant is that if the facts were found as stated by the hypotheses, the failure of the plaintiff to discover signal 44 at stop or caution (if such was the position of the signal) and communicate the position to the engineer was not only negligence on the part of the plaintiff directly contributing to the cause of the accident, but in law must be regarded as the sole proximate cause of the accident barring recovery, regardless of whether there was any negligence of the defendant or of the engineer or other employee or employees of the defendant concurring and combining with the negligence of the plaintiff as the direct cause of the accident. But when the jury found, as by their verdict they evidently did, that the assumed facts stated in the hypotheses did not exist, and hence the plaintiff not guilty of any negligence which as a proximate cause contributed to the accident, the point urged by the appellant becomes moot, for that the point is pertinent only in the event the facts assumed by the hypotheses were found to exist. Had the jury found the plaintiff guilty of negligence and to that extent diminished the amount of damages sustained by him, then the point, as to whether such negligence should in law be regarded as the sole proximate cause of the accident and bar recovery, or whether such negligence in law or in fact was only a contributing cause combining and concurring with the negligence of the defendant or of its employee or employees, would be relevant. But the jury in effect having found there was no such negligence on the part of the plaintiff, the point is irrelevant.
Further as to this: It is familiar doctrine that a particular *Page 84 portion of a charge complained of must be considered in connection with the whole charge bearing on the same subject or matter. By pargraph 6 of the charge the court further charged:
"You are instructed that a railroad company has the legal right to make such rules and regulations for the conduct of its employees while engaged in its service as in its judgment are reasonable and proper to protect its employees from injury by accident, and all employees while engaged in such service with a knowledge of such rules are bound to follow and obey them, and if an injury is sustained by an employee by an accident caused solely by his violation of a rule promulgated for his safety, he cannot recover damages from the railroad company."
By the rules of the company put in evidence, it, among other things, was provided that "enginemen must keep a lookout and note all signals" and that "the enginemen and firemen must, when practicable, communicate to each other by its name the indication of all signals affecting the movement of their trains." By paragraph 9 it was expressly stated that it was the duty of the plaintiff, as fireman, to keep a lookout for signals affecting the movement of trains; by paragraph 12 that it was the duty of both the engineer and the fireman to keep a lookout for signals, "and in this instance it was the duty of each when practicable to call the signals seen to the other"; by paragraph 11 the jury again were directed that if the failure of the plaintiff to observe the signals and to communicate their position to the engineer was the sole proximate cause of the accident, the plaintiff could not recover.
When thus the rules of the defendant put in evidence, the court charging in accordance therewith that it was the duty of the plaintiff to keep a lookout to discover the position of signals and communicate such position to the engineer, that if an injury was sustained by an employee by an accident caused solelyby his violation of a rule of the company promulgated for hissafety he could not recover, are considered in connection with paragraph 9, it would seem that the theory or theories of the defendant in the particulars *Page 85 complained of were fairly put before the jury. Upon the record and by their verdict it is evident the jury did not find the existence of the facts upon which the theory or theories of the defendant were predicated. The plaintiff and the engineer having testified that signal 44 as No. 4 tunnel was approached by them, and as they passed the signal, indicated a clearance, the jury could find that such was the position of the signal. If the jury did so find, then there was no negligence either on behalf of the engineer or the fireman in proceeding forward as they did. The switchman of the apricot train having testified that as such train approached the main line and about to cross over and finding a stop signal forbidding such crossing and the engineer of such train whistling the towerman for a signal permitting him to cross over and the towerman giving him a clearance signal for such purpose and derailing the main line on which the passenger train was approaching, and striking the derail while the apricot train was still in the act of crossing the main line, the jury could find that such signal to the apricot train to cross over was given by the towerman after the passenger train had passed signal 44 and was passing through tunnel No. 4, and not affording sufficient time for the engineer of the passenger train to stop and avoid the accident after discovering the stop signal on the main line, and the jury further finding, as testified to by the plaintiff and the engineer, that the stop signal was discovered by them at the same time and the emergency immediately applied and everything done to stop the train, a finding that the plaintiff was guilty of negligence would not have been justified. The undisputed evidence is that all the signals in question were on the engineer's side. Testimony also was given to show that because of a fog, and smoke in the tunnel, and of other conditions, stop signal 24 was not sooner discovered.
Thus, from all the circumstances, the jury could have found that the plaintiff was not guilty of negligence in failing to sooner discover signal 24. Certainly his failure *Page 86 to sooner discover it could not have been pronounced negligence as matter of law. The question clearly was one of fact for the jury. It was so submitted to them with the direction that if they found the plaintiff guilty of negligence and that such negligence was the sole proximate cause of the accident, the plaintiff could not recover. I think no error was committed by the court in doing so.
Now, as to the portion of the charge of paragraph 13 relating to burden of proof of contributory negligence with respect to the postion of semaphore or signal 44 as the pessenger train approached and passed such semaphore and entered tunnel No. 4. It is claimed that the court, as to the pleaded affirmative and separate defense of negligence of the plaintiff upon the ground that he failed to discover the position of such semaphore at caution, erroneously put such burden of proof on the defendant. It is apparent that if the semaphore indicated clearance and was not at caution, no negligence could be predicated on the part of the plaintiff in not discovering that the signal was at caution, for he could not discover what did not exist. Again, the charge of the court in such particular must be considered in view of the pleadings and of the evidence. By the complaint several acts of negligence on the part of the defendant are alleged. With respect to semaphore or signal 44, it in substance was alleged that "the defendant was negligent in that the person in charge of the tower of the semaphore system caused to be shown a green light on said semaphore at the westerly portal of tunnel No. 4 (signal 44), indicating that the block ahead was clear for the passenger train to proceed"; and well knowing that the train was proceeding through the tunnel, those in charge of the tower "negligently permitted a freight train to pass over and go upon the crossover tracks and pass immediately in front of the passenger train a short distance from the easterly portal of the tunnel, and well knowing that the passenger train would, if not derailed, strike against the freight train going over the crossover tracks," and if the defendant and its agents had not *Page 87 indicated at the west portal of the tunnel that the block ahead was clear instead of indicating that there was danger in proceeding through the tunnel, and if proper signals had been given indicating that other trains were about to or were crossing over the crossover tracks, the engineer in charge of the passenger train could have stopped and avoided the accident. It further was alleged that it was the duty of the engineer to observe the position of semaphore or signal 44, and if it did not show green or a clearance, it was his duty to stop, and if he did not do so he well knew there was danger of a collision, and that in such event the accident resulted through the combined negligence of the defendant and of the engineer.
The defendant denied the alleged negligence and as a separate and an affirmative defense pleaded that the accident to the plaintiff "was caused by his own negligence,, in that, by the rules of the company he was required to keep a lookout and note the position of all signals, including those at both ends of tunnel No. 4, and to communicate to the engineer the position of such signals and the defendant alleges that the plaintiff negligently failed to observe and/or to communicate to the engineer the fact that the signals at each end of said tunnel indicated that such track was occupied and/or that said derail was open; and this defendant alleges that the negligence of plaintiff aforesaid primarily and proximately caused the derailment of the engine on which he was working."
It thus is seen that the plaintiff, as to signal 44, alleged that the defendant through the towerman negligently indicated such signal as a clearance and that the block ahead was clear; the defendant, upon which it based its affirmative defense of negligence on behalf of plaintiff in such particular, that the signals at each end of the tunnel indicated that the track ahead was occupied, the main line derailed, and that the plaintiff negligently failed to discover such position and communicate it to the engineer. By the evidence on behalf of the plaintiff it was shown signal 44 was *Page 88 green, indicating a clearance, and that the passenger train could safely proceed through the block ahead. The defendant, by evidence as to the mechanism of the tower system, sought to establish, and claimed to have established, that if semaphore or signal 24 was red and indicated stop, then of necessity signal 44, when the passenger train approached and passed it, indicated caution, warning the train operatives to be prepared to stop anywhere within the block ahead. By the charge the court fully submitted to the jury the respective issues as shown by the pleadings and by the evidence. With respect thereto the court, in other portions of the charge, charged the jury "that the burden of proof as to any disputed or controverted fact rested upon the party who alleges the fact, and in each instance where either party to this action alleges the existence of any fact and such allegation is denied by the opposing party, the burden of proof rests upon the party alleging such fact to prove his allegation by a preponderance of the evidence." The court further also charged that "negligence is never presumed and the burden rests upon the party alleging negligence to prove such allegation by a preponderance of all the evidence."
Thus, to entitle the plaintiff to recover on the alleged negligence with respect to the manner in which semaphore or signal 44 was indicated, he was required to show that the semaphore indicated green or a clearance indicating that the passenger train without obstruction could safely proceed through the block ahead. If he failed to establish such fact, or if he failed to establish it by a fair preponderance of the evidence, or if the evidence with respect thereto was evenly balanced, the plaintiff was not entitled to recover on the ground of such alleged negligence. But in such case, he would not fail because he himself was guilty of negligence. He would fail because he had not established such alleged negligence against the defendant. The plaintiff, however, gave evidence to establish such negligence. In so doing no evidence was adduced by him tending to show that he was guilty of negligence in not discovering the true position *Page 89 of semaphore or signal 44. Certainly upon the evidence adduced by him the defendant was not entitled to a directed verdict on the ground of negligence of the plaintiff. Since no evidence was given by him tending to show that semaphore or signal 44 was at caution, before the defendant could claim support of its alleged separate and affirmative defense that the plaintiff was guilty of negligence in not discovering semaphore 44 at caution, the defendant was required to show that the semaphore was at caution, and unless the defendant showed that the semaphore was in such position, the claim that the plaintiff was guilty of negligence in not discovering the semaphore in such position falls to the ground. In other words, no such claimed negligence appearing in plaintiff's evidence, how could the defendant support its separate and affirmative defense in such particular without showing that semaphore 44 was at caution?
I thus think the court correctly charged as was done in paragraph 13 that the burden of proving contributory negligence was upon the defendant, and that, in view of the pleadings and of the evidence, the court correctly charged that to find the plaintiff guilty of contributory negligence in failing todiscover that semaphore or signal 44 was at caution, the defendant was required to establish such fact by a fair preponderance of the evidence, for, as heretofore observed, unless the defendant did establish such fact, there was no basis for and no evidence to support the alleged claim that the plaintiff was guilty of negligence in not discovering signal 44 at caution.
In this connection it must be observed, and it is not disputed, that in this jurisdiction, as in the federal courts, the rule is that the burden of proof is upon the defendant to show facts constituting negligence on the part of the plaintiff, unless the evidence adduced by him tends to show such negligence. So when it is considered that the plaintiff to recover was required by a preponderance of the evidence to show facts constituting negligence as against the defendant, and the defendant to show negligence against the plaintiff *Page 90 was required by a preponderance of the evidence to show facts constituting such negligence, there is no inconsistency in the charge referred to. Failure of the defendant to show contributory negligence would no more tend to show negligence on its part than failure of the plaintiff to show negligence on the part of the defendant would tend to show negligence on his part. And the plaintiff, in the particular referred to, having given evidence to show negligence on the part of the defendant without any evidence tending to show negligence on his part, the defendant to establish its affirmative pleaded defense that the plaintiff was guilty of negligence was required to show facts constituting such negligence. Any other conclusion is in discord with the admitted rule in this jurisdiction that the burden of proof is upon the defendant to show negligence or contributory negligence on behalf of the plaintiff.
Now as to the complaint made of the portion of paragraph 14 wherein the court, in connection with other things, stated "that the fireman would have the right to assume until he learned to the contrary that the engineer would see and observe such signal (signal 44 indisputably on the engineer's side of the track) and operate his engine in accordance with the signal displayed." Such language also is used with respect to signal 24, also indisputably on the engineer's side of the track. The paragraph in which such language appears is fully set forth in the prevailing opinion. Therein the court charged various matters which the jury could consider in determining the question of contributory negligence. In that connection the complained of language is used. Because of such language, the contention is made that the plaintiff thereby was himself relieved from exercising due care, as he was required to do, to discover the position of semaphores or signals on the engineer's side of the track as well as on the fireman's side. When the whole paragraph is considered, I do not think such contention tenable. It certainly is not tenable when, in connection with paragraph 14, other paragraphs of the charge bearing on the subject *Page 91 are considered, especially paragraph 6 heretofore referred to, paragraph 9, and paragraph 12, where the jury were expressly instructed that it was the duty of the fireman as well as of the engineer to keep a lookout for signals affecting the movement of trains. There is no presumption of negligence. On the contrary and independently of evidence, every one whose conduct is drawn in question is presumed to have exercised due care. In the first instance, and in the absence of notice or knowledge to the contrary, an employee may assume that the master will and had exercised due care with respect to duties imposed upon him and owing the employee, and that such duties will be and have been discharged by the master with reasonable care. 5 Elliott on Railroads (3d Ed.) § 2712, n. 660, and 4 Elliott on Railroads, § 1881, n. 154. Of course, such assumption does not imply that the employee himself is relieved from exercising due care for his own safety, nor because of such assumption is he relieved from so doing. Because the court charged that the plaintiff had the right to assume that the engineer in effect would or had exercised due care, did not imply that the plaintiff was himself relieved from exercising due care in discovering the position of signals, for with respect thereto, the court charged that the plaintiff was in duty bound to observe a lookout to discover the position of signals affecting the movement of trains and to exercise reasonable care in such particular, and if on the evidence the jury found "that the plaintiff in the performance of his duties on said engine, acted as an ordinary prudent fireman under the same or similar circumstances, then he would not be guilty of contributory negligence in any matter pertaining to said signal," signal 44.
Let it further be noticed that under the rules of the company that "enginemen must keep a lookout and note all signals" and that "firemen are subordinate to enginemen," the whole duty to discover the position of semaphores or signals was not cast on the plaintiff. Each, when practicable, was required to communicate to the other the indication *Page 92 of the signals. The court so charged. Under the rules the engineer was a superior servant. It was he who operated, managed, and controlled the engine. Under the rules, and under the federal act which abolished the doctrine of fellow servant, he, as to the plaintiff, was a vice principal, for whose acts in the discharge of his duties the company was responsible. He was in position to command, the plaintiff to obey. Just as the plaintiff, without notice or knowledge to the contrary, could assume that the principal had or would exercise due care, so could the plaintiff assume that the engineer would or had exercised due care. The doctrine here, as to semaphore 44, was particularly applicable for the reason, and as indicated in the prevailing opinion, that such semaphore being on the engineer's side of the track giving the engineer a better opportunity to ascertain the position of the semaphore, and because of the curve in the track the view of the semaphore by the plaintiff being obstructed, except for a brief space, and only "momentarily" visible to him, and when seen by him, the semaphore, as he testified, indicating a clearance. The fuel used in the engine was oil. The fireman on his seat was required to operate the valves and to regulate them according to the way the engineer worked the throttle and was required to move the valve as the engineer moved the throttle and also to set and regulate the atomizer and "to sand the engine." On his side of the engine and on his seat he observed lookouts for signals and for persons or obstructions upon or near the track, etc. Looking to discover the position of semaphore 44, more than he did discover, required him to leave his seat and go on the engineer's side. That, because of his work and of the conditions, was not practicable. Thus, under the circumstances, the plaintiff had the right to assume that the engineer would do what the engineer testified was done by him in observing the position of the semaphore, and as the engineer continued to operate the engine without slacking the speed, the plaintiff had the right to assume that the engineer had observed signal 44 and that it indicated *Page 93 a clearance to proceed. If the plaintiff had no such right, then he would have no right to rely on any communication made by the engineer that he noted the indication of the semaphore and that it was in the clear, but was required to leave his seat, go on the engineer's side, and himself observe and discover what the semaphore indicated. No such requirement, to relieve the plaintiff from a charge of negligence, was exacted by the rule of the company nor by any principle of law applicable to the case.
I thus think no error was committed by the court with respect to the charge complained of.