(specially concurring).—I concur in the reversal of the judgment of the lower court on the grounds stated in the foregoing opinion, but desire to add that, in addition to the grounds for reversal therein set out, it clearly appears from the record that defendant attempted to prove *45that the conductor (Barrett) of the work-train had received such information from the plaintiff himself as to the washed-out and impassable condition of the railroad east of the point at which the repairing of the road was being done immediately before the collision in which plaintiff was injured as to justify him in backing his train, as he did, in that direction, to avoid a collision with the regular train from the west, which attempt on the part of defendant was prevented and refused by the court on the ground that McGill, the plaintiff, was not a source from which the conductor was authorized to receive information which would bind the defendant. While this would undoubtedly be true under ordinary circumstances in cases where the informant is not a party to the suit, in this case the plaintiff is certainly bound by any defect or any conditions in the road or the cars or machinery of which he had knowledge, and certainly of any and all conditions which would render the occupation of himself and co-laborers extraordinarily hazardous. I think the refusal of the court to allow the defendant to prove the declarations of McGill to the conductor, as to what he knew of the condition of the track was an error, for which alone the case should be reversed.
Bouse, J., concurs in the above.