This case, as now presented, shows some variation from the facts which appeared when last before this court, when a new trial was granted upon the ground that the plaintiff’s intestate was guilty of negligence which contributed to produce his death, and by means thereof the defendant was relieved from liability. It then appeared from the testimony of the engineer on the train at the time of the collision, one of the plaintiff’s witnesses, on his cross-examination, that the place of the deceased was on the top of the train at the rear of the first car behind the engine. This testimony was unexplained and not contradicted. At the last trial the same witness testified that the place of deceased, as head brakeman, was on the engine at times; that upon an ascending grade, where the train was when the accident happened, his position was anywhere on the train where his duty called him, and he had charge of the whole train. If his duty called him at the front end of the car, it was his duty to be there; if at the rear, then there; The witness, after explaining that the head brakeman was partially under the instruction of the engineer, and required to obey his calls; to apply the brakes from the whistle, and if anything is *56wrong to notify the engineer, proceeds to state, “hence his place is upon the engine as much as upon the car. If a brake falls down he tells of it. We have to have such a man. It is difficult to fix the position of the head - brakeman, for he has several positions where he should be for different duties.” Another engineer testified that the head brakeman’s duties did not pertain particularly to putting on the brakes, but that he was to put on shackles and pins, and used to communicate with the conductor.
It was also proved upon the last trial, and is not contradicted, that it was a common custom on the defendant’s road for the head brakeman to ride upon the engine in company with Mr. Chapin, the superintendent of the road, and Mr. Rockafeller, the head conductor of freight trains, who had charge of the brakemen of freight trains, ancBthat these agents of the company had knowledge of the fact, never objected to it, and thus sanctioned the practice.
These additional facts materially varied the case from the one presented upon a former trial, and independent of any other circumstances or facts which might tend to establish that the deceased was not at bis post of duty, left a fair question for the jury to determine whether he was guilty of negligence.
It is contended, however, by the defendant’s counsel,' that the deceased was on the engine in violation of a rule of the company, that engine men should not allow any person to ride upon the engine without express authority, and therefore cannot be excused from the charge of negligence. I think that this position is not sound. It will be observed that it does not appear that the rules of the company were brought to the knowledge of the deceased, or that he ever heard of them, and the proof shows that the brakemen were not furnished with copies of them. It also appears that the instructions themselves do not define the brakeman’s post of duty, although he is not allowed to be in a car when a train is running. It would, therefore, follow that he was to be at the place required for the performance of his duty; and unless the rule cited is not to be varied under any circumstances whatever, that he might, from the testimony, be at times necessarily called to be on the engine. I am inclined to think that the printed instructions upon the whole are not inconsistent with proof that it was the custom for the brakeman to ride upon the engine with the consent and approval of the agents of the company.
Unless the rule in question was inexorable as well as utterly *57inconsistent with the other printed instructions, then it is manifest that there was evidence from which it might be inferred that the deceased was not out of the line of his duty when he was killed. I am also of the opinion that these regulations are not so rigid but that when the exigency of the case demands it, they maybe departed from, and when agents of corporations vested with comprehensive powers sanction a departure from strict compliance with their requirements, I think that an employee who has neither knowledge nor notice should not be held responsible for negligence.
The fact that the deceased had been upon the engine for some time, and the testimony of the engineer that he did not send for him to come upon the engine at this time, should he taken into consideration in connection with the other evidence, but was not so entirely conclusive as to take the case from the consideration of the jury.
It cannot be said as a matter of law that the fact of deceased being on the engine was negligence per se, but it was merely evidence for the consideration of the jury, which was fairly submitted to them by the court.
The question whether the co-servants of the deceased were guilty of negligence which contributed to the injury, was also for the jury. In the case of Flike v. Boston & Albany R. R. Co., where the injury was caused at the same time as in the case at bar, the company were held responsible and a recovery was sustained. The same rule must govern the case now considered and is an answer to the last point.
It follows that the court properly refused to nonsuit the plaintiff, and as there was no error in any of the rulings at the trial, the order denying a new trial must be affirmed and judgment ordered for the plaintiff on the verdict, with costs.
Judgment accordingly.