dissenting.
I cannot agree to the decision in this case. My reasons for this dissent must be briefly stated. I make no objection to the holding that the verdict and judgment are excessive, and think that the plaintiff should be required to remit the excess, or, failing so to do, that the judgment should be reversed. But I can see no good reason why the judgment should be reversed in- toto. I desire to enter my most earnest protest against the doctrine that, as a matter of laAv, an employer may create binding rules upon its employees by simply following a custom created and established by itself. Such a rule- is vicious, unfair and unjust, and, in my opinion, is not good law. If there were neither light, warning, nor brakeman in charge of the moving train and cars, it Avas for the jury to say whether under all the circumstances there was negligence on the part of defendant in not employing some safeguard. By this opinion, and all others of its kind, the real and proper function of the jury is assumed by the court, and jury trials might as Avell be dispensed Avith. It is a doctrine as old as the law of jury trials that all questions of fact are for the decision of the jury when sitting as triers of fact. Why destroy that time-tried and time-honored function in cases of this kind by proclaiming a vicious rule of “custom” on the part of the employer, and then forcing the cases to bend to it? In my judgment the Avhole theory is Avrong.
I would not object to requiring a reasonable remittitur as a condition of affirmance, but am unwilling to go further. I am familiar with the record in this case, having-read it carefully and given it close study, and I can see no possible reason for destroying the judgment.