(dissenting). — I. The evidence shows-that the duties of the plaintiff required him to go upon the railroad tracks at the locality where the accident occurred, and that at the time he was injured he was. upon the tracks in the discharge of his duty. It is also shown, without conflict in the evidence, that by the uniform and unvaried custom and course of business of the defendant’s employes in attaching the combination car to the train it was never moved upon the “passing track,” but always, upon the arrival of the *354train to which it was to be attached, it was taken from the “passing track,” where it had been left, to the main line and “ shoved” or “kicked” on that line to the train. The plaintiff and three or four other witnesses all unite in testifying that this was the uniform course of the business, which not one of them had ever seen varied. It is to be inferred that this custom was based upon the necessity of moving the combination car upon the main track in order to attach it to the train which stood upon that track. But, whatever may have been the reason of the custom, it is a custom that was never disregarded, within the knowledge of the witnesses. There is not one word of evidence tending to show any reason or necessity for departing from the custom at the time the plaintiff was injured, or that the plaintiff had any notice or warning of the disregard of the uniform custom, or had any ground or reason to anticipate the use at that time of the passing track for moving thereon the combination car. It is certain that, as a reasonable and prudent man, he was authorized to rely upon this unvaried custom of taking the combination car to the train upon the main track at the time the accident occurred. As we have seen, he was without fault and in the discharge of his duty upon the tracks; and without fault, and with the purpose of protecting the interests of the defendant, he gave warning of the fact that a team was on the track. In doing this, he was compelled to turn towards the person he warned. He stepped upon the “passing track,” .and was struck by the combination car, which was moved upon that track instead of the main track. 'The evidence shows that this car was “kicked” upon the “passing track;” that is, it was separated from the engine, and was carried by its own momentum, the ■engine being stopped. It also clearly shows that no hrakeman or other person was on the end of this car which was towards the plaintiff, and the evidence tends *355to show that no one was anywhere on the car, which was moved at an unusual rate of speed, some of the witnesses testifying that it moved twice as rapidly as the ordinary speed.
II. Upon these facts, in addition to those stated in the opinion, I conclude, first, that the evidence tends to show that the defendant’s employes in charge of the ■combination car, and the locomotive moving it, were negligent in using the “passing track” on the occasion without warning or signal, contrary to the custom and course of business of the plaintiff and its employes; in running the car at an unusual speed, and without a brakeman or other person upon it to control its movements, and keep a lookout to warn others of danger, ■on account of the movements of the car; and, second, that the plaintiff did not contribute to his injury by his ■own negligence.
III. The facts which I have just stated plainly tend to show the defendant’s negligence. Its duty required -it to use sufficient precautions to guard against •accidents which might result from the disregard of its ■custom in handling the combination car. The evidence tends to show none. But it does tend to show unusual speed of the car without the presence of a brakeman or other person in control of it, or give notice of warning of its approach. There is no evidence of any warning of the approach of the car upon the passing track. Other grounds upon which negligence may be inferred could be mentioned.
IV. The plaintiff was authorized to presume that the usual custom and course of business in handling the combination car would be followed, and that the ■employes in charge of the car and locomotive would act in accord with the usual custom, and with proper care to avoid accidents. Resting upon this presumption, he was authorized to believe that the combination •car was on the main line, and it was not, therefore, *356negligence for him to step upon the “passing track,” believing that the approaching car was on the main track. Pringle v. Chicago, R. I. & P. Ry. Co., 64 Iowa, 613; Crowley v. Burlington, C. R. & N. Ry. Co., 65 Iowa, 658; Steele v. Central Ry. Co., 43 Iowa, 109; Beems v. Chicago, R. I. & P. Ry. Co., 58 Iowa, 150.
Y. But it is said that, if he had stopped and looked, he could have seen the switch was so set as to show the approach of the car upon the “passing track.” This position maybe, for the purpose of the case, admitted. But the defendant believing, as he was authorized to believe, that the combination car was o'n the main track, his vigilance, caution, and even instincts for self-preservation, were overcome by his belief, which stood in the place of knowledge, and prompted his action. Men of intelligence and ordinary prudence would have acted in this way. He is not, therefore, to be charged with the effects of negligence.
YI. Besides, men required to act with promptness are not negligent because they do not stop and hesitate, and consider whether the knowledge and beliefs they possess and entertain are correct, and thus delay action until probably the time is passed in which they may be able to act. In the running and management of trains, promptness and decision are demanded. Therefore, employes must be permitted to act upon the belief and presumption that all customs and rules usually followed in all like cases are observed and obeyed in the matters wherein they are called upon to act. I reach the conclusion that the defendant was negligent, and that the plaintiff did not contribute to his injury by his own negligence.
Therefore, in my opinion, the judgment of the district court ought to be reversed. '