Dissenting in Part and Concurring in Part. — Upon the main question I agree, with some hesitation, with the dissenting opinion of Justice Bean; but accepting, as I must, the opinion of the majority that there is error requiring a reversal of the judgment, there arises a question of procedure as to the particular judgment that should be rendered. It seems plain to me that a new trial will not avail the defendant in this case and will only entail useless expense. It is a case directly appealable to the Supreme Court of the United States and upon *115that question I agree with Mr. Justice Band that the case should he dismissed.
BROWN and HARRIS, JJ.We are unable entirely to agree with the opinion written by Mr. Justice Bean or with the one written by Mr. Justice Rand; and therefore we deem it necessary to explain our views.
The trial judge informed the jury that the construction of train order No. 226 was a question of law for the court, and, acting on that assumption, he advised the jury that the fact that the order
“Was not made to read, from Cook to Oswego, the only part of the line included in the order over which train 231 was to pass did not change the effect of said order, nor render it confusing or doubtful of construction”; that the order “gave train 234 the right of way over all that part of defendant’s lines of road between Beaverton and Oswego, and the plaintiff and others in charge of train 231 should have so construed it and remained at Oswego until train 234 arrived;” that “under said order it then became the duty of those in charge of said train to have stopped at Oswego and held said train there until 234 had arrived and passed on, and if said employees in charge of said train and all of them forgot said order, disregarded or violated it, and caused said train to proceed out of the yard at Oswego and on its way south or if they misconstrued or misinterpreted said order and proceeded as herein stated, and that it was because of this disobedience, disregard, violation, misunderstanding or misconception of said order that these two trains were caused to come together in collision, and from such collision plaintiff suffered the injury complained of in this case; and you should also find that the conductor, fireman and brakemen on said train, — and who were each equally with the plaintiff responsible for the operation of said train, and could have prevented said train from passing out of said yard at Oswego until 234 had *116arrived and passed on; that they had the means of so controlling the operation of said train, and conld have held the same at Oswego, then I instruct you that it was their duty so to do and their failure in this regard, or their acquiescence in the train’s departing from Oswego under the circumstances under the federal Employers’ Liability Act would be an act of negligence, for the consequences of which the defendant company would be responsible.”
It will be observed that the foregoing instructions absolve the defendant from any negligence as to the form of the order; that the jury was told that order No. 226 was plain and not doubtful as to its meaning and that under the order it was the clear and absolute duty of those in charge of train No. 231 to hold it at Oswego until the arrival of train No. 234; and that if the conductor, fireman and brakeman had the means of controlling the operation of train No. 231 and could have held it at Oswego and did not do so, or if they acquiesced in the departure of the train from Oswego, their conduct was negligence for which the defendant is liable. The uncontradicted evidence is that the fireman could have stopped the train; and furthermore the unquestioned testimony is that the caboose, in which the conductor and brakemen rode was so equipped that the conductor or any one of the brakemen could have stopped the train. The plaintiff affirmatively stated and reiterated that when he left Oswego he had order No. 226 in his mind and that he had not forgotten it. Aside from the inferences that may be drawn from their conduct, the record is utterly silent as to what interpretation the fireman or the conductor or any of the brakemen on train No. 231 placed upon order No. 226; and the record is likewise devoid of direct testimony as to what those members of the crew, except Davis and the con*117ductor, did or omitted to do. There is no evidence of the acts of the conductor of train No. 231 at Oswego, except the testimony of Davis, which was to the effect that Davis and the conductor checked the register together at Oswego, and that the conductor gave Davis a signal to proceed. The conductor of train No. 231 was subpoenaed by the plaintiff and called as a witness by the defendant; but apparently neither side was willing to run the risk of asking any questions other than such as were necessary to elicit the information that he was the conductor of train No. 231, that he had been subpoenaed by the plaintiff, and that he was no longer employed by the Southern Pacific.
In these circumstances the instructions, to which attention has been directed, amounted to a direction to the jury to return a verdict for the plaintiff. The instructions now under examination assume: (1) That order No. 226 was plain and proper and that it in no wise involved negligence on the part of the defendant; (2) thjt under this order it was the positive duty of the tram crew to hold train No. 231 at Oswego until the arrival of train No. 234; (3) and that failure so to hold the train, whether resulting from disobedience, disregard, misunderstanding, forgetfulness, or misconception of order No. 226 on the part of the train crew, was negligence on the part of every member of the crew and that the defendant was liable for all of that negligence except the negligence of Davis. If, as we read the record it contained no elements except the ones last mentioned, we would agree with the conclusion reached by Mr. Justice Band.
State courts, are of course, controlled by whatever construction the Supreme Court of the United States has placed upon the federal Employers’ Liability Act. *118The plaintiff and the defendant differ sharply in their contention as to the construction given to the act by the national Supreme Court. If any member of the train crew had violated some duty imposed upon him alone, and that act of violation was one of the contributing causes of the collision, then the question of the liability of the defendant would, under the decisions of the Supreme Court of the United States, be free from difficulty; but the writers do not understand that any decision of the Supreme Court of the United States thus far reported gives support to the notion that if two employees are each bound to perform exactly the same specific duty and both the right and the obligation of each to perform that single specific duty is equal to the right and obligation of the other, each one of those two who acting in concert with each other and each acquiescing in the conduct of the other violates that single duty, which though single was nevertheless imposed upon all and therefore was common to all, can recover from the railroad company. To allow any one of such tjvo or more employees to recover would be equivalent to holding that each of such two or more employees, though having acquiesced in the conduct of each other and though having acted in concert, can say to the employer: Although I was hurt because I failed to perform my specific duty you are nevertheless liable for damages to me because another employee, acting in concert with me and with my acquiescence, failed to perform my duty for me. If, reasoning inductively, we may draw a general conclusion from “single instances,” including particularly Virginian Railway Co. v. Linkous, 230 Fed. 88 (144 C. C. A. 386), 235 Fed. 49 (138 C. C. A. 543); and Lmkous v. Virginian Railway Co., 242 Fed. 916 (155 C. C. A. 504), the writers are led *119to the conclusion that on the facts thus far assumed to exist the plaintiff cannot recover. In Linkous v. Virginian Railway Company the material facts were peculiarly like the controlling facts in the instant case; and there the Circuit Court of Appeals of the Fourth Circuit affirmed the judgment of the district court directing a verdict for the defendant Virginian Railway Company, and the Supreme Court of the United States denied the petition of the plaintiff for a writ of certiorari, thus affirming the judgment: 242 U. S. 630, (61 L. Ed. 537, 37 Sup. Ct. Rep. 15).
If the conclusion that on the facts thus far mentioned the plaintiff cannot recover is correct and if these were in truth the only facts, or if the record contained no evidence of any additional facts, then a reversal without a new trial ought to be the result. But as the writers read the record there is evidence sufficient to entitle the plaintiff to have submitted to the jury the question as to whether or not the defendant was negligent in giving order No. 226 and as to whether or not a different order or a supplemental order ought to have been given.
It will be helpful if, before attempting to ascertain whether there was any evidence tending to show negligence on the part of the defendant, we first describe the course of the Southern Pacific lines so far as they are material here and also give a detailed account of what was done by Davis and the conductor of 'train No. 231.
Going from Portland the general direction of all Southern Pacific lines in Oregon is south. The Union depot at Portland is on the west side of the Willamette River. Several lines lead out of the depot, but we need notice only two of them.. One line crosses the Willamette River at Portland, proceeds *120about four miles to Brooklyn then two miles to "Willsburg and thence to San Francisco. This is known as the main line. At Willsburg a branch line leaves the main line, crosses to the west side of the Willamette River and proceeds to Wilsonia. The other line leading out of the Union Depot follows along the west side of the Willamette River the entire distance to Wilsonia. The two lines join at Wilsonia and there become a single line of track. This single line of track continues from Wilsonia to and through Oswego and thence to Cook where the single line again branches into two lines. If one takes the right-hand branch leading out of Cook, he will go through Beaverton and thence to St. Joseph. If one takes the left-hand branch he will pass through Newberg and thence to St. Joseph where the right-hand and left-hand branches are again united and continue as a single track on south to McMinnville and thence to Corvallis.
Train No. 234 was a local freight running north from McMinnville to Portland. This train upon reaching the junction at St. Joseph took the branch that passes through Beaverton and thence ran to the junction of the two branches at Cook and thence over the single track leading to Oswego. The ultimate destination of train No. 234 was Brooklyn. Train No. 231 was a freight running from Brooklyn to Corvallis. Leaving Brooklyn this train passed over the main line to Willsburg where it left the main line and took the branch to Wilsonia and thence it ran to Oswego. This train was supposed to run to Cook and.then to take the left-hand branch and proceed south through Newberg and on to St. Joseph and thence through McMinnville to Corvallis. Thus it is seen that between Wilsonia and St. Joseph the routes of *121the two trains took them over separate tracks except for a distance of four and one-half miles between Cook and "Wilsonia, and at no point between Wilsonia and St. Joseph was it possible for the two trains to collide except between Cook and Wilsonia.
The plaintiff reported at Brooklyn for work on May 31, 1918, at about 9:20 a. m. He registered and checked “over all trains that had arrived or departed within the last twelve hours.” While oiling his engine Davis received from the conductor “the orders concerning us on this trip.” Train No. 16 ran on the main line; it was coming from the south and was more than three hours late. Davis testified that No. 16 “was the only train I had been able to check against on the register which had not arrived within the allotted space of time.” The plaintiff as engineer received only two train orders on that day and those two were received from the conductor at Brooklyn. One of the two orders related to train No. 16; and this order was a “time order” and gave train No. 231 “plenty of time to reach” Willsburg before the arrival of train No. 16. The other order was No. 226. Train No. 234 when on schedule time reached Brooklyn several hours before the scheduled departure of train No. 231; and consequently a period of several weeks might elapse and the crew of No. 231 would not even see train No. 234. But on May 31, 1918, train No. 234 was, as already stated, late. Davis admitted that he knew that train No. 234 had not arrived at Brooklyn prior to the departure of train No. 231, because “if that train had reached Brooklyn he would not have received that order.” Davis showed order No. 226 to his fireman. The train crew was composed of six men: the plaintiff, as engineer, a fireman, a conductor, and three brakemen.
*122Train No. 231 left Brooklyn, proceeded to Wills-burg where it left the main line, and then ran to Wilsonia. Upon arriving at Wilsonia, bnt before going upon the single track leading towards Cook, in compliance with a rule requiring all trains “before entering this point of track here to call up the dispatcher and get permission to proceed or stay at this point until such time as the dispatcher gives you the authority to move,” the dispatcher was “called up and he said ‘follow No. 355’ which was one of the fast red trains ’ ’ which leave the Union Depot and run south on the line which follows the west side of the Willamette River to Wilsonia.
Half a mile south of Wilsonia is Oswego, a station on the single track. A day and night telegraph operator, a train register, and a train order signal semaphore are at Oswego. Upon receiving the order of the dispatcher to “follow No. 355,” train No. 231 proceeded from Wilsonia to within a short distance of the station at Oswego when Davis whistled for the semaphore and thereupon “this signal was cleared.” The train then proceeded to the freight-house and there stopped. After oiling the engine Davis walked back to the office for a drink of water and while there
“the conductor said, ‘While you are here, Walter, let’s check these registers, the train order registers’; which I did. We checked it against all trains which concerned us. The limited space between 355 being up, being ten minutes, our work being finished, I got to the engine and I asked the conductor if all was set. And he said, ‘High-ball,’ and we pulled out.”
Rule No. 83B prescribes that engineers shall before leaving register stations require from the conductor a card showing all superior trains and stating that he has checked the register and that they have all arrived or departed as the case may be. The plaintiff *123testified that this rule was not observed at Oswego for the reason that “I was there and checked it in person with him.” The plaintiff also testified that he and the conductor checked the register together “personally, by the time-table,” but that he did not check against train No. 234 because he did not think that it affected his train. It must be conceded that the record contains evidence of negligence on the part of the plaintiff. But, can it be said as a matter of law that there was no substantial evidence of negligence on the part of the defendant which operated as a contributing cause of the collision which occurred when train No. 231 and No. 234 collided at a point a half a mile or a mile south of Oswego? The plaintiff alleged, among other things: That the defendant was negligent
“in not giving said order to the plaintiff at Oswego instead of at Brooklyn”; that order No. 226 “did not comply with the rules of the carrier in that the said order named towns off of the line from which plaintiff’s train ran”; and “in that said order did not apprise plaintiff of the position of said train No. 234”; and “in not giving a meet order requiring the plaintiff’s train No. 231 to be held at Oswego until train No. 234 arrived there.”
Let us inquire whether there was any evidence that order No. 226 was itself defective. Although the general direction of Southern Pacific lines in Oregon is south and north, in the language of railroad men trains going south are known as west bound and those going north as eastbound. West-bound trains, or those going south, when operating according to timetable, ■ have superiority over those going north or eastbound; and this superiority can be changed only by a train order. In the absence of a train order, therefore, train No. 231 was superior to and had the *124right of way over train. No. 234. Train orders, so fax as they are material here, are of three kinds: (1) Meet; '(2) wait; and (3) right of way. In the case of a meet order, both opposing trains receive the order and the agent at the meeting place, if there be such an agent, also receives a copy of the order; and so, too, in case of a wait order, the agent, if any there be at the waiting point, receives a copy of the order. This is required by rule No. 208, which in part reads as follows:
“A train order to be sent to two or more offices must be transmitted simultaneously to as many of them as practicable. The several addresses must be in the order of superiority of trains, and when practicable must include the operator at the meeting or waiting point, each office taking its proper address. # * Copies of the order addressed to the operator at the meeting or waiting point must be delivered to all trains affected until all have arrived from one direction.”
But in the case of a right of way order, the two opposing trains receive the order and no copy is sent to an intermediate point. A right of way order simply gives to one train the right over another train to the use of the track, or, as expressed by one of the witnesses it transfers superiority of right from one train to another. "When a meet or a wait order is issued the operator at the meeting or waiting point gives the order which he has received from the dispatcher to the first of the two opposing trains which arrives, and he keeps the semaphore at a stop or normal position and does not clear the semaphore until all opposing trains have arrived or departed; and consequently the first arriving train cannot proceed until all opposing trains have arrived, without running “against the board.” But, since in the case of a right of track order a copy is not sent by the dis*125patcher to an intermediate point, no agent or operator at any station has a copy of that order; and consequently when the inferior train whistles for the board the operator not having an order for that train, clears the board, with the result that the train can proceed without running ‘ ‘ against the board. ’ ’ There is a very material difference between a right of track order and a meet or a wait order. Giving, for example, train No. 1 the right of track between Station A and Station C over train No. 2, according to the uncontradicted testimony of Morris, the Southern Pacific trainmaster and of Dickey, the conductor of train No. 234, does “not necessarily” oblige train No. 2 to wait at Station C until train No. 1 arrives from Station A; for if train No. 2 can proceed and reach Station B, an intermediate point, before train No. 1 arrives there, it may do so; or if train No. 2 can continue on to Station A and “clear” the time of No. 1, it may even do. that. In the instant case, however, train No. 234 was several hours late and was not running on schedule time. Davis had no such information concerning the time or whereabouts of train No. 234 as he had concerning train No. 16, except such information as was conveyed to him by order No. 226. He was informed that No. 16 was more than three hours late and that he would have ample time to get to Willsburg, but no such information was given as to train No. 234.
The essential difference between a meet order and a right of track order is that a meet order absolutely requires a stop and a wait until the arrival of the opposing train, while a right of track order permits the inferior train to go on if it can reach the next station in time to clear the track for the opposing train. Rule No. 201 reads as follows:
*126“For movement not provided for by time-table, train orders will be issued by authority and over the signature of the superintendent. They must contain neither information nor instructions not essential to such movements.”
According to the testimony of GK C. Morris, the trainmaster, and of C. E. Baker, the division examiner of the Southern Pacific, order No. 226 was a “technical” violation of rule No. 201., Morris stated that, while the order is as he contends clear, it should have read Cook to Oswego without making any reference to Beaverton. Davis said that in all of his twenty years’ experience he had never seen an order like No. 226; and Baker, the division examiner, who hires the men, examines them on the rules, promotes conductors and engineers, and interprets the rules, testified that he had never before seen an order like order No. 226 “reading over a certain piece of territory that a train was not scheduled over.”
The testimony of Morris contains some enlightening information. He had been in the service of the Southern Pacific Company about thirty-five years. He had run trains and had been an operator, an agent, a dispatcher and a chief dispatcher before becoming trainmaster. The testimony of this witness is susceptible of material inferences available to the plaintiff. The testimony is as follows:
“Ordinarily the orders are given like this, for instance, a train inferior by direction is coming in off the line, the meeting point is uncertain owing to the fact that there is work to do at different stations, possibly, so they will put out an order in many cases giving the right over to a certain point, figuring that later on they will be able to fix up the meet which will be beyond that point yet. Now, I don’t know of course what the idea would be in this case, but it was probably that when the dispatcher first started to put *127out his orders that he wasn’t sure what time 231 would get out of Brooklyn, possibly that was the reason that he put ont that order. If he knew definitely what time they were going to get ont he would probably have put a meet order at some other point, or at that same point. But my position is that if I was handling the trains that is the way I would do it, I would move them along until I could get them to a meeting point.”
The defendant claims that order No. 226 required train No. 231 to wait at Oswego until the arrival of train No. 234. If order No. 226 required a wait at Oswego when train No. 231 arrived there, it necessarily involved the same requirement when the train left Brooklyn. Train No. 234 was not running on schedule. Davis was not apprised of its whereabouts or of its time. He knew that the scheduled route of that train was through Beaverton; and order No. 226 not only confirmed that knowledge but impliedly stated that at the time of the issuance of order No. 226 train No. 234 had not yet left Beaverton. Davis says that if the order had read Cook to Oswego it would have apprised him “where 234 was.” Furthermore, Davis saw No. 355, the fast red train, pull out of Oswego on its way to Cook and, for aught that appears in the record, this may have been to him a complete demonstration that train No. 234 had not yet arrived at Cook, or at least had not yet left Cook, which was only four miles away. Davis knew no more about train No. 234 when he reached Oswego than he did when he left Brooklyn, except that he must have known that it was probably nearer Oswego than it was when he left Brooklyn. If order No. 226 spelled “wait at Oswego” when Davis arrived at Oswego, it spelled “wait at Oswego’’when he left Brooklyn ; and if it did so, spell£ £ wait af Oswego ’ ’ so far as the *128present condition of therecord is concerned, notwithstanding the contention of the defendant that order No. 226 was a right of track order and not a wait order or a meet order, and therefore did not require a “middle” order to the operator at Oswego, there is room for argument that under rule No. 208 Oswego became a waiting point to which a “middle” order should have been sent.
No witness said that order No. 226 was in full compliance with the rules; but upon the contrary, the two witnesses, Morris and Baker, who above all others ought to know the correct construction of the rules, admitted that the order was a “technical” violation of rule No. 201. Any one of the six men composing the crew of train No. 231 possessed authority to stop it and could have stopped it and prevented it from leaving Oswego if order No. 226 required the train to wait at Oswego; and yet those six men left Oswego without an attempt upon the part of any one of them to prevent a departure of the train. The very fact that six men did" this is not without significance. Order No. 226 was the only order which affected that crew of six men at Oswego, and if it be assumed that it was a right of track order and not a wait order, then it was an order which entitled train No. 231 to proceed if it could have cleared the time of the other train. But the crew of train No. 231 did not know the time of the other train, because it was hours late. It may be that the defendant ought at all events, as it is possible to infer from the testimony of Morris, to have issued a wait or a meet order supplementing order No. 226, and it may be that this duty, if it was a duty, became enlarged and urgent because of the violation of rule No. 201 by the wording of order No. 226. It cannot well be denied that it would have *129been practicable to issue a meet order; for at Oswego there was an operator and a semaphore. It must be conceded that if a meet order had been issued the board would not have been cleared for train No. 231 when it pulled into Oswego and it could not, without running against the board, have left Oswego before the arrival of train No. 234. Furthermore, if a copy of order No. 226 had been sent to the operator at Oswego and if he had interpreted the order to mean “wait at Oswego for train No. 234,” as the defendant contends the order must be interpreted, the operator would not, according to the testimony of Dickey and Baker, have cleared the board until the arrival of train No. 234.
The stubborn fact remains that if a meet order had been issued or if a copy of order No. 226 had been sent to the operator at Oswego and he had interpreted it as the defendant does, the collision would not have occurred. Whether the defendant was negligent in not issuing a meet or a wait order or otherwise acting is a question of fact for the jury. There is sufficient evidence to enable the plaintiff to carry that question of negligence to the jury. If the defendant was negligent and such negligence contributed to the collision then to that extent the defendant is liable to the plaintiff.
In our view the judgment ought to be reversed and the cause remanded for a new trial.