I concur in the reversal of the judgment in this case, but not alone on the grounds stated in the opinion.
I am satisfied, from the facts as they appear in the record, there should he no recovery, for reasons to be stated hereafter. The points in the issue are stated in the opinion. 1st. Was the appellant guilty of the negligence charged in the declaration? 2d. Was the appellee guilty of such contributory negligence as to preclude a recovery? I will consider the latter issue first. The appellee charges in his declaration that he was, at the time of the injury, in the exercise of due care and caution for his own safety. In order to entitle him to recover, the burden of proof is on him to show that he was in the exercise of such care. I think he has clearly failed in this. The particulars in which I think he has failed are as follows: 1st. He disobeyed the rules of the company in running faster than at the rate of fifteen miles per hour under circumstances entirely unjustifiable. 2d. That such disobedience, of which he was guilty at the time the accident occurred, was negligence; that such negligent conduct clearly contributed to the accident It is insisted that there was no such rule of the appellants requiring the appellee, or any other employe, to run a wild train, as this was, at a rate of speed not to exceed fifteen miles per hour. This, I think, is clearly a misapprehension. The objection that wild trains were not classified is based on the peculiar reading of the rules printed on a card which appellee had in his possession and was running by, which classified the trains into 1st, 2d and■ 3d class, which were all regular trains, passenger and freight, and fixed by the rule, to wit, those having a fixed time table. The fifth rule thereon provided that “ all trains which are classified on the regular time table shall he known as regular trains.” “All trains not classified on the regular time table shall be known as extra or wild trains.” Again, rule six fixes the speed of trains as follows: The
“speed of second class trains, eighteen miles per hour; third class, fifteen miles per hour. When behind time, speed may be quickened, under favorable circumstances, for second class trains to twenty miles per hour; third class trains to eighteen miles per hour.”
The interpretation that all the employes of the appellant, including the appellee himself, placed on the above rules, was that wild trains come under the rule as regards speed provided for third-class trains. This they all understood to he the rule as to the speed allowmd to be made by wild trains.
And it was understood to be a violation of the rules of the company to run a wild train at a greater rate of speed than fifteen miles per hour. No less than fourteen of the present and former employes of the appellant, including the appellee himself, testified on the trial, in substance, that such was the rule as they understood it, and not a single witness contradicts it. It could make no difference whether such rule were c early expressed in the card or not if it was so interpreted by the company, or if such were the usage of the company which the appellee understood. All appellant’s servants worked by these rules as a recognized law of the company. The appellee knew that all the wild trains were governed as to speed by the speed of third-class trains; hence it would he negligence in him to run such a train at a higher rate' of speed than fifteen miles per hour. I am of the opinion that the jury had no right from the evidence to find that the wild trains were not governed as to speed by such rule or usage.
Was the appellee observing this rule when the collision occurred? I think clearly nut. The evidence seems to he nearly all against him on that subject, and scarcely any for him. He does not swear, neither was the question directly aslced him, that he was running his train within the rule of fifteen miles per hour when the accident occurred. He was asked on re-examination whether, if he had been running the train only at the rate of fifteen miles per hour coming down the grade and around the curve at the time he first saw the passenger coach, he could have stopped his train any better than he did. He answers he could not; that she would have gone in there anyway under the circumstances. The tenor and aim of his evidence was to offer excuses for running so fast; one excuse being that in going down from Paddy’s Ridge he could not shut off steam for fear of cutting the valves. It almost amounts to a direct admission that he was rdolating the rules. Heither does the firepan SAvear that he Avas not running faster than the rules allowed. When Ave consider the circumstances and the testimony of the three men living along the line of the road between the place of the accident and Grand Ridge, and Avho saw the manner in Avhich the train was running the last six miles prior to the accident, it seems to me there arises an irresistible conclusion that the train was running at least thirty miles per hour.
The passenger train from Ottawa Avas behind time and Avas running at about thirty miles per hour and the appellee’s train started out some 'five minutes behind, yet Avas gaining fast on the passenger train at Richards Station, being only SO to 100 rods behind as seen by Richards and running sorapid'y and so near to the passenger train as to attract his special attention as it did the other two farmers Avho had just previously seen it.
There Avas no necessity for running his train in this reckless manner. Ilis was a light train and could be started and stopped by him anyAvhere on the road. It needed no momentum to enable it to stand on and ascend any grade on the road. This cut and course was a place where it was especially necessary to observe caution. If there was any place on the road that required that the rule of the company as to speed should have been observed it was there. Other Avitnesses testify as to the rapid rate of speed of the train at the time of the collision. Ho witness and no important circumstances contradict the overwhelming evidence that the train was running at a rate of speed far exceeding fifteen miles per hour, at the time immediately preceding the collision. This was negligence on the part of appellee as held hy the Supreme Court in Ill. C. R. R. Co. v. Patterson, 69 Ill. 650. Can there be a doubt that such rapid rate of speed contributed to the appellee’s own injury? I think not. The evidence shows that if a train be running at a rate of speed not exceeding fifteen mi’es per hour, there is not so great a liability of injury to an engineer jumping from it, as when it runs at a higher rate of speed. Then again, the flagman would have been far enough back to give appellee warning if he had been running at less rate of speed.
The evidence shows that the flagman was on his way to flag appellee’s train after the stoppage of the passenger train and would have ample time so to do if appellee had not been wilfully violating the rules of the company. The appellee was violating another rule of the company in not keeping five minutes behind the passenger train which he must have known from the manner in which he was running, he was not doing.
The passenger train and appellee’s train were in plain sight of each other at Grand Eidge and appellee must have been apprised of its position on the track. From that station he must have run faster than the passenger train. The rule that requires wild trains and others not to start out less than five minutes behind a passenger train would require, hy fair construction, that such train should keep that far in the rear and, as appears from appellee’s testimony, he so understood it.
It is claimed that the appellant was negligent in not notifying appellee at Grand Eidge that the gravel train had not reported and was on the track and to look out for it. If the rule should be so construed as to require such notice after the gravel train had failed to report at 12:30 o’clock we must remember that was just about the time appellee arrived at Grand Eidge, not over two minutes intervening between the time the gravel train should report and the arrival of the appellee at Grand Ridge, and besides this it was the custom to put np the engine before reporting, which would occupy the two minutes. I think that prior to the time the gra\ el train was ordered to return, there was no requirement to notify appellee as his train would not go over the track where the gravel train was at work until after the time fixed for the track being clear. But, if there was negligence in this it was not wilful and the negligence of appellee would prevent recovery. There might have been negligence on the part of the conductor of the passenger train in not flagging with sufficient promptness, though this is not clear; )ret the effort to flag would have been successful in saving accident had it not been for the greater neg'igonce of appellee. This was a most terrible disaster and of all the employes of the appellant against whom negligence can be justly charged in bringing it about, it seems to me that of appellee was the most culpable. I think he may clearly trace his own misfortune to his own recklessness and his wilful disregard of the rules of the company.
I see from the evidence no habitual disregard of the rules of the company in regard to fast running that would give the appellee the right to disregard them in the manner he did. He -was not hurried for time, nor was he behind time, as he had no time, being a wild train. It was not necessary to raise a grade that he should run faster than the rules allowed. He had no excuse. Especially should appellee have been cautious in turning the™ curve and passing through the cut in question, where he could not see what was ahead of him. Instead of using caution he rushed through the cut at a high rate of speed in wilful violation of the rules of the appellant, which he acknowledges he well understood. Under the well recognized rules of the law he can not recover.
I concur with Judge Baker in remanding the cause, as well as in the reversal of the judgment.