dissenting.
1. Whether the defendant railway company formulated and promulgated any written or printed rule regulating the rate of speed that its switch engines might be run in the yards at Lincoln does not present any question of negligence for the jury to consider, unless in this particular case this part of the track run over was so run over by the switch engine at an unreasonable rate of speed, considering all the circumstances, and especially that this part of the yards was in a cut in a curve of the road, and so might have imperiled the safety of plaintiff’s decedent. As the jury were not so told, and were not properly instructed touching the question, I am under the impression that there is prejudicial error in the proceeding and in the instructions given, as also in the third paragraph of the syllabus of the majority opinion. Whether the railroad company did or did not lay down a rule for the guidance of its employees concerning the rate of speed at *335which the switch engine should be run in the yards is immaterial, unless it is shown by the evidence that the switch engine was run too fast and had such an unreasonable rate of speed as to endanger the safety of the decedent. The third paragraph of the syllabus is objectionable.
2. It must be all a matter of speculation, in the absence of any rule, that if a reasonable rule had been made by the railroad company touching the running of the switch engine in its yards it would have controlled, or even influenced, the conduct of the crew in running such switch engine. For this reason, the theory of the opinion seems to be wrong.
3. By instruction No. 8 the court instructed the jury: “Touching subdivision a- of the first paragraph of these instructions, you are further instructed that it was the duty of the defendant company to exercise reasonable care to adopt and promulgate reasonable rules for the control and conduct of its business in all cases, in case its business had become sufficiently extensive to demand their adoption in the exercise of reasonable care for the protection of its employees. In this connection you are further instructed to determine from all the evidence iri this case whether the defendant’s rules with respect to the operation and control of its engines and trains, including its switch engines in the Lincoln yards, were reasonably sufficient for the protection of its employees at the time plaintiff’s intestate sustained his injuries.” The effect of this instruction would seem to be to turn the jury loose in the field of speculation as to whether the railroad company might not have improved.its rules touching the protection of its employees, - and if for any reason it had not done so, that it is liable in this case. The trouble with this sort of thing is that the attention of the jury is not called to any specific thing which may have contributed to the death of plaintiff’s decedent.
It is well said in the majority opinion: “A rule that a switch engine may run through the yards, on the main *336line, not under control, but at a high rate of speed, when its crew all know that there is an ‘extra’ on the main line passing through the yards, would be a barbarous rule; and, if the rules of a railway company permit such a practice, it should be held liable for injuries to employees on the extra who are injured while such extra is being operated in compliance with the rules of the company, viz., under full control. If the unreasonableness of a rule is for the court, and not for the jury, the court should in such a case instruct the jury that such a rule is unreasonable.” I apprehend that the railway company may make no rule which would relieve the crew of the switching-engine from exercising ordinary care and common prudence to avoid a collision, but the language used, in the instruction quoted is of a most general character. That turns over to the jury the question of determining whether a better set of rules might not have been constructed, and, if so, then the inference is that it is the duty of the jury to find that the defendant is liable. I do not think that this can be the law. Tf the jury is turned loose and told that it may occupy as wide a province as it likes, it will be almost sure to find that other and better rules might have been made. When it is remembered that jurors are not specially instructed along the line of operating railways and formulating rules for their management, it must be seen that the instruction is an invitation to pursue any theory which may present itself to the imaginative mind of the juror.
The first case cited in the majority opinion is that of an inferior court. The Texas case cited does not seem to be clearly in point. The other cases cited do not seem as broad as the instruction in the instant case.
4. Instruction No. 9, requested by the defendant, reads: “You are further instructed that the defendant was not required to insure its locomotive engineers from collisions with switch engines or other like accidents resulting from the management of trains; that defendant’s duty to the employees was only to use reasonable care and diligence *337in the management and operation of its switch engines, and unless you find that the defendant, or its agents and employees, failed to use reasonable care and diligence in the management of its switch engine, and as a consequence thereof plaintiff's intestate was injured, you cannot find for plaintiffs.” I think the above instruction requested by the defendant should have been given.
5. It was according to the theory of the defendant's case that the plaintiff’s intestate was running his engine at a rate of speed so great as not to be under full control, and that this was the proximate cause of the injury. Touching this matter, the defendant requested the giving of an instruction as follows: “Instruction No. 13. You are instructed that the company has promulgated and published rules governing the operation of locomotive engines and trains in the Lincoln yards; and that, under said rules, Otto O. Wright was bound to run his engine through the Lincoln yards under full control. You are instructed that an employee, if within his power so to do, is bound to obey all of the reasonable rules and instructions of his employer with reference to the conduct of his business, and if you find from the evidence that at or immediately before the accident, when the engines first came in sight of each other, the said Otto O. Wright was running his engine at a rate of speed so as not to be under full control, and that this was the proximate cause of the injury, then you are instructed that plaintiffs cannot recover.” I think it should have been given.
For the foregoing reasons, I dissent from the majority opinion.