(dissenting). In my opinion it was at least a fair question for the jury as to whether it was negligence on the part of defendant for the train dispatcher to send out train No. 8 without giving notice to the yardmaster of his intention to do so; he knowing that the yardmaster, acting upon the information furnished to him “just before No. 8 leaving time or just after,” would be likely to use the main tracks as yard tracks so far as No. 8 was concerned.
I am also of the opinion that the judge did not err in submitting to the jury the question of plaintiff’s contributory negligence. The negligence of plaintiff is to be considered with reference to the information, communicated to him through proper' channels by the train dispatcher, that No. 8 would detour as it had been detouring for several days. While the violation of a rule is evidence of negligence, as in the case of the violation of an ordinance, it is not under all circumstances conclusive evidence of negligence. The train dispatcher controls the movement of trains, and, in my opinion, it should not be held that, as a matter of law, it is negligence per se for the employés to rely and act upon his information as to the movement of trains. Even though it was negligence in the abstract to go upon the south main track, it might not be negligence as to train No. 8, which plaintiff, as a reasoning human being, had a right to believe he need not consider. Garrity v. Railway Co., 112 Mich. 369 (70 N. W. 1018, 37 L. R. A. 529); Philip v. Heraty, 135 Mich. 446 (97 N. W. 963, 100 N. W. 186); Cook v. Johnston, 58 Mich. 437 (25 N. W. 388, 55 Am. Rep. 703); Sterling v. City of Detroit, 134 Mich. 22 (95 N. W. 986); Tyler v. Nelson, 109 Mich. 37 (66 N. W. 671); Buxton v. Ainsworth, 138 Mich. 532 (101 N. W. 817).
Counsel for defendant say in their brief, after referring *17to the orders given by the yardmaster orally and by telephone, as to movements of trains on the yard side tracks, and occasionally on the yard main tracks:
“ There is a wide distinction between the above kind of orders, which are almost always communicated around yards by telephone or word of mouth, and orders allowing an engineer to use a main track on the time of a superior train. Main tracks through yards still retain their character as main tracks, and are under control of the train dispatcher. Yard engines often use these tracks, but, before doing so, they must know that no regular trains are due and no special trains with superior rights through the yards. On these main tracks various classes of trains move and a complicated system of rights has grown up to control their movements. Under this system the only man who can annul a regular train inside Wyoming yards is the dispatcher. As far as an engineer moving on a main track in Wyoming yards is concerned, he is entitled to believe that a regular train is annulled only when he has in his possession a written order from the dispatcher to that effect. No yardmaster or switch tender can annul a regular train in Wyoming yards under the rules, and, under the rules, the dispatcher cannot annul a regular train except by written order. There is absolutely no evidence in this record to show that in Wyoming yards or outside of it any train was ever annulled except by written order sent out by the dispatcher. The failure to appreciate the respective jurisdictions of the yardmaster and of the dispatcher in Wyoming yards, as established by the rules and practices of the defendant, the failure of the court to grasp the idea that the yardmaster controls yard tracks, and to some extent main tracks off the time of regular trains, but that the dispatcher is supreme over regular trains on main tracks, and that nobody is entitled to assume anything as to the movement of one of these regular trains on a main track, unless he had in his possession an order from the dispatcher, was one of the principal causes of the error of the court in this case.”
And again:
“Movements on the main line when regular trains are not due may properly be directed and controlled by the yardmaster, for he has the means of knowing all the *18trains that are on those tracks at that time. In that case the main tracks are treated for the time being as yard tracks, and all engines move on them under control, looking out for themselves and each other. To give the yardmaster control over such movements is a thing commonly done, and is a very different thing from giving him or any one under him the right to let an engine go out on the main track on the time of a regular train which has the right of way, does not run under control, and over whose movements the yardmaster has no jurisdiction. * * * When regular trains are not due through the yards, the yardmaster has the right to use the main tracks for switching movements, for the purpose of getting trains and cars from one part of the yard to another. The yardmaster has no control over regular trains, and their rights on the main track, when due, are paramount to any rights that he or any one under him can give. * * * On the night of the accident and a short time before No. 8 was due to leave the Union Station, the yardmaster at Wyoming yard called the dispatcher’s office on the public telephone, and inquired if it was the intention to detour No. 8 that night in the same way that it had been detoured other nights. He was informed that it was the intention. The yardmaster communicated this information to the switch tenders. This communication was for the purpose of advising them that they could let a south-bound freight train into the yards without incurring a delay for No. 8, as explained above.”
Mr. Lawless, the night yardmaster, testified:
“That night I called up the dispatcher’s office on the telephone. I asked him how No. 8 was going. Before that I had been outside, and I came into the yard office at Wyoming yards. If I remember right, the clerk had called up the dispatcher before that time, and the clerk told me that No. 8 was going over the Q-. R. & I. or over some other road. I do not remember which. I then called up the dispatcher’s office personally, and a man by the name of Booman, an operator in the dispatcher’s office, answered. The operator gave me the information. * * *
“Q. But whatever was the information the operator gave you came from the dispatcher, didn’t it ?
“A. That is the way I understood it to be. * * * I believed what he said, but, as far as running the train against that other man, I would never have done it.
*19“Q. Didn’t you rely upon the statement or information that you had there that No. • 8 was going to detour over the G. R. & I. ?
“A. I believed it at that time, yes, sir; believed that they were going to detour that certain train.
“Q. And you relied upon that, didn’t you ?
“A. In that one certain train of cars; yes, sir. I think I called up there between 11:25 and 11:30 p. m. It was either just before No. 8 leaving time or just after.
“Q. And, of course, you relied then upon the fact that this particular train No. 8 was going around over the G. R. & I., didn’t you?
“A. As far as that train of cars is concerned; yes, sir. # * #
“Q. Suppose you received a message over the wire that No. 8 was going by the way of G. R. & I., would you have a right to rely on the fact that it was going on the G. R. & I.?
“A. As far as that train No. 8 would go on there, that particular train of cars was going that way, that would be simply giving me the advice. That would be no annulment of train No. 8. * * * At the time I called up the dispatcher’s office, I was told that No. 8 was going to detour over the G. R. & I.”
The train dispatcher testified:
“Our first instructions were that No. 8 was to go the regular way, and afterwards it was changed to go via the G. R. & I., and then, after that, it was changed back to the original route.
“Q. Now, what I want to get at is what did he tell you that he told the night yardmaster, or what did you tell him to tell him at the time he called up ?
“A. Now, he was in communication with Mr. Quinlan about that and what passed between the operator and I, I could not say, but he kept me posted—
“Q. Now, to refresh your recollection, didn’t he tell you or you tell him that he had informed the night yardmaster that No. 8 was going to detour over the G. R. & I.?
“A. I might have done so; yes.
“Q. You said a moment ago that you knew the night yardmaster or somebody there at Wyoming yard called up to find out ?
“A. Yes, sir.
*20“Q. And that was the answer that you had given, was it, at that time, that No. 8—
“A. That was before the change; yes.
“Q. Before the change the last time ?
“A. Yes.
“Q. Was that the answer that you had given ?
“A. Yes, sir. * * *
“Q. Have you any way of knowing what time you got the order changing that arrangement of things; that is, about No. 8 not detouring ?
“A. No. That was done by telephone with Mr. Quinlan (chief train dispatcher).
“Q. And so that the detouring matter, by Mr. Quinlan, was changed again, was it ?
“A. Yes, sir.
“Q. And that was changed by telephone ?
“A. Yes, sir; with Mr. Quinlan. * * *
“Q. Do you know why Mr. Quinlan changed the order there at that time to send the train out over the Pere Marquette ?
“A. We received word from Mr. Long, I think it was —he was our engineer, civil engineer at that time — that the track, that the bridge would be so that we could go over it by a certain time, and it would be as well to run them that way to save time.
“Q. That was just before you sent No. 8 out that night, wasn’t it?
“A. The last change; yes.
“Q. And that was just before No. 8 went out on the night of March 9th that you received those instructions ?
“A. Yes; this last change.
“ Q. How did that instruction come ? Did that come by telegraph or telephone ?
“A. Telephone from Mr. Quinlan. * * * We did not telephone out there that there had been any change. Mr. Quinlan is our chief dispatcher.
“Q. Now, he gave you instructions over the telephone to detour No. 8 over the G. R. & I.?
“A. Gave it to our office; yes.
“Q. And he also gave you instructions over the telephone to run your train over the Pere Marquette, No. 8 ?
“A. After the first change.
“Q. So he was giving you instructions as to what movement of passenger trains by telephone, was he ?
“A. As to which way to run them; yes, sir.”
*21The switch tender at Sunny Side testified:
“Q. I understood you to say you received your orders as to how to handle your switch from the yard office at Wyoming yards ?
“A. I did. There was no telegraph office at my station. I never received any 31 orders or 10 orders.
“ Q. How did you receive your orders ?
“A. Over the telephone.
“Q. Telephone from Wyoming yards?
“A. From Wyoming yards.
“ Q. Now, the orders given you there at that station, what orders was it that you received there; I mean in regard to handling your switch and trains ?
“A. In order to running the trains you mean ?
“Q. Yes.
“A. They gave me the orders from there in case any specials or anything of that kind were out, outside of the regular trains, why, they gave me the orders on telephone, or any other order that they wanted me to handle.
“Q. You handled them by telephone from the Wyoming yard office ?
“A. Yes, sir; no other way.
“Q. For instance, if with your information that you received you wanted to know whether a regular was late, did you get your instructions from Wyoming yards over the telephone ?
“A. I did.
“Q. And as to whether a train was annulled ?
“A. Yes, sir.
“Q. It came by telephone ?
“A. Yes, sir.
“Q. I will ask whether you made those inquiries, or they were telephoned out to you without inquiry?
“A. They were telephoned to me without.
“Q. If a regular train then was late, you received that instruction, did you, from the Wyoming yards office ?
“A. Yes, sir.
“Q. Or, if it was annulled, you received that instruction from the Wyoming yard office ?
“A. I did. * * *
“Q. As to your authority there at your station, what instructions did you receive as to letting trains through ?
“A. Why, of course, outside of the regular train, I was instructed to use my own judgment in letting them through.
*22“ Q. In letting them through ?
“A. Yes, sir.
“Q. Suppose, for instance, that you received an order that a train was an hour late, and an extra should approach your station from the east, would you let it through ?
“A. I would; that is, up to a certain time of this hour.
“Q. That is up to the time of—
“A. Say 10 or 15 minutes.
“Q. Were those your instructions to let them through ?
“A. They was.
“Q. So, if a train was annulled, was it your instructions to let the trains through then ?
“A. It was. * * * The first day that they were detoured was the 6th of March, and they were detoured every day after that until the 9th. On the 6th I received my instructions that trains were going to detour over the G. R. & I. over the telephone from the yard.
“Q. Then did you act accordingly ?
“A. I did.
“Q. Paid no further attention to the train ?
“A. No, sir.
“Q. Did you receive each day after that a telephone order up to the 9th that they were going to detour the G. R. & I. tracks; that is, the regular train.
“A. No; not each night I didn’t.
“Q. How did you know that they were going to detour there ?
“A. I didn’t know, only I depended on the yardmaster to let me know.
“Q. I know, but did the yardmaster let you know ?
“A. When they gave me this telephone, they gave me that telephone as an order until further orders, you see.
“Q. Oh, until further orders ?
“A. Yes, sir. I received a telephone message, on the night that plaintiff was injured. Plaintiff arrived there from the east with his train at 11:35 p. m.
“ Q. Did you handle the trains that came through there, let them in or stop them, according to the message that you received over the telephone from the yard office P
“A. I did. Mr. Jones arrived there about 20 minutes after I had received that information.
“Q. Do you remember how it was; did you make inquiry yourself, or were you told ?
“A. They called me up and told me.
*23“Q. Would they call you up on the same phone they called you, would they notify the Plaster Creek office, too ?
“A. Any time like that they called us both, first one and then the other, so both switch tenders heard it together, so we understood it.
“Q. After receiving these orders, you did go on and handle the trains accordingly f
“A. Yes, sir.
“Q. As I understood you to say, that was your instructions to do so from the yardmaster ?
“A. It was. It was Lawless gave me that instruction over the phone about 11:20 p. m.
”Q. Between the time that Mr. Lawless had informed you that No. 8 was going to detour over the G. R. & I., did you get any other order from the office that No. 8 was coming that way ?
“A. I did not.
“Q. Would you be notified if a special was going to run, and would they give you the time of its running past your station ?
“A. Yes, sir. If the order was canceled, they would notify me of that fact through the yard office by telephone.
“Q. And, as I understand you, it was your orders to act accordingly with the switches after receiving such an order ?
“A. Yes, sir.
“ Q. Now, did you have any instructions as to the time, after letting one train through, that you would let another through the switch following it ?
“A. Yes, sir. I was not to let another train follow a regular within 10 minutes, but all extras or like that it didn’t make any difference. * * *
“Q. When Mr. Jones arrived there at Sunny Side, what information did you give him, or what conversation did you have with him ?
“A. I told him that I had order that No. 8 was going to detour over the G. R. & I. I told him to go ahead and gave him the switch. It was 11:85 p. m. when he passed through my switch to the south. * * * If No. 8 had been on time, she would have been due at my station about 11:32 p. m. That would be three minutes before Mr. Jones appeared there.
“Q. Would you have let Mr. Jones through there over that track, had you known they were going to send No. 8 down ?
*24“A. No, sir. I relied upon the instructions that they gave me that No. 8 was going to detour.
“Q. And, had you had any knowledge whatever that the dispatcher had changed his mind about that train, would you have let Jones through ?
“A. No; I would not.
“Q. Did you know what train that was that was running; that is, No. 8 train that came down there, did you know what it was when it approached you ?
“A. I did not.
“Q. Did you know what it was when it got through and past ?
“A. I did not.”
Charles Williams testified:
“Q. Now, Mr. Williams, you have not read any order concerning any detouring of any train on the 6th, 7th, 8th, or 9th. I will ask you if orders for detouring are made by the dispatcher of trains ?
“A. Not for detouring; no.
“Q. I will ask you if detouring a train over the G. R. & I. annuls the train ?
“A. No, sir. * * *
“Q. Suppose a railroad man were told that No. 8 was going over the G. R. & I., would that mean to a railroad man, under the rules, that there would be no train go over the Pere Marquette on the time of No. 8 ?
“A. Not necessarily; no, sir. As long as the schedule of No. 8 was not filled, they might run trains over their own tracks on the time of No. 8.
“Q. Suppose they should issue an order annulling No. 8, then that would be different, would it ?
“A. That is a different thing entirely; yes, sir.”
Plaintiff testified:
“ I arrived at Sunny Side at 11:35. There was regular passenger train called No. 8 that was due to leave the Union Depot for Chicago at 11:30 p. m. A regular train is a train that runs on a schedule, on a time card.
“Q. And you say you arrived at Sunny Side at 11:35, five minutes afterwards ?
“A. Yes, sir. * * *
“Q. When you arrivéd at Sunny Side, what did you do?
“A. I pulled down clear on the Y, clear of the Chicago *25Division, so that I was clear off and took the brakeman’s lantern, and went down myself, personally, and asked the switch tender, Mr. Perry, how No. 8 was, and he says, ‘ Highball.’ He says: ‘ No. 8 is going to detour over G. R. & I. Go ahead, the track is all your own.’ * * *
“Q. Well, now after he had instructed you to go ahead, the track was yours, what did you do then ?
“A. I went back to my engine and proceeded on to Wyoming yards, and, on approaching Plaster Creek, I called for that crossing there to get into the yard, and they would not give it to me. I called for the crossing with three whistles. That was the call that would let me into the north lead of Plaster Creek. They would not give me the crossing there to go into the yards. The switch tender gave me a motion with his lantern to go ahead, and I pulled down to the switch tender’s station, and had a conversation with him. He said: ‘ Pull down to the south end of the yard and back in. The yard is blocked.’
“Q. That is, the lead was blocked?
“A. The north into the yard were blocked.
“Q. Then you understood the lead was clear, but the switches blocked ?
“A. Yes, sir.
“Q. Then what?
“A. I pulled down to the south end of the yard over the south lead switch, and they throwed or turned the switch for me to turn my train in.
“Q. Do you know who did that ? .
“A. The brakeman, I think.
“Q. Now at that point, did you back your train there ?
“A. Yes, sir.
“Q. At that point did you have any conversation with any one ?
“A. Yes, sir.
“Q. Who was it ?
“A. Dan Lawless, the yardmaster.
“Q. What was the conversation you had with him ?
“A. He stood at the switch when the engine went by the switch, and I hollered to him, and asked him what the other lead was.
“Q. What do you mean by lead?
“A. I was on one lead, and there was another lead running in, running parallel with the lead I was already on.
“Q. What did he say ?
*26“A. He said: ‘You had better come down the main.’ He said: ‘If you come down that lead, you will have lots of switches to throw, and it will be blocked with cars.’”
Defendant’s traveling engineer testified:
“Q. Now, then, if the yardmaster had conveyed this notice to the Sunny Side , switch tender that No. 8 was going to detour over the G. R. & I., did he have any right to rely upon that notice ?
“A. He had the yardmaster’s word that it was going to detour, and I suppose should rely upon it.
“Q. And in fact he should, shouldn’t he?
“A. Yes, sir.”
The train dispatcher was invested with the entire power of the company in moving trains, and it is a fair inference from the testimony that the train dispatcher understood that the yardmaster was making inquiries as to train No. 8 for the purpose of ascertaining whether he might use the main tracks through the yard without reference to that train. These inquiries were made just before or just after the leaving time of train No. 8, and the care of the yardmaster and the importance he attached to the information requested is shown by the fact that he did not rest upon the statement of his clerk, but called up the train dispatcher himself. When the train dispatcher informed him that train No. 8 would not come through the yard at all but would detour over the Grand Rapids & Indiana, he had a right to rely upon this statement and did rely upon it, and communicated the information in the customary manner to the switch tenders, and the switch tenders acted upon this information communicated in the customary manner, as was their duty. And the plaintiff, when informed by the yardmaster, through the switch tender, that the train would not pass through the yards that night, had a right to rely upon such information.
The question is not whether the trainmaster’s information was given in a particular form, but Was it such as a reasonably prudent man might rely upon as stating a fact? The train dispatcher himself acted upon a tele*27phonic communication from the chief train dispatcher, and he manifestly expected that the yardmaster should act upon the telephone message from him. According to the testimony of the train dispatcher, no formal orders were made for the detouring of trains; and neither were there any formal orders as to the lateness of trains, but, as appears from the testimony hereinbefore quoted, such information was communicated customarily over the telephone, and was manifestly so communicated, with the expectation that it would be acted upon as true. It is not a sufficient answer to say that the train dispatcher had a right to rely upon an observance of the rules by the trainmen so far as train No. 8 was concerned. He had expressly notified them that they might disregard that train, and could not have relied upon their observance of any rules to protect themselves against that train. He must be held to have known that the men would rely upon a statement coming from him, the supreme power in the movement of trains, that train No. 8 would not go through the yard that night, but would detour just as it had been doing for several days. The negligence of the plaintiff, in my opinion, should be determined with reference to the situation which confronted him, and not merely with reference to arbitrary rules. So considered, his contributory negligence was at least a question for the jury. The whole question, in' my view, is whether the plaintiff had a right to rely upon the information given him in the customary way; and, if he did, then he was under no obligation to protect himself against train No. 8 at all. The record fairly discloses, I think, that the plaintiff had a right to rely upon the information given him as to train No. 8, or, at least, that it was not negligence per se to rely upon it.
It is said, however, that, since train No. 8 was not formally annulled, other trains might be sent through the yard on No. 8ss time, and that plaintiff was chargeable with notice that he might meet an extra at any moment, .and therefore was guilty of negligence in using the south*28bound main track in backing north. Assuming that it-would be negligence in the abstract for the plaintiff to back north upon the south-bound main, and that plaintiff would have been guilty as a matter of law of contributory negligence in case of collision with any other train running on No. 8’s time, it does not necessarily follow that he was guilty of contributory negligence in this case. If, so far as the train which collided with his engine was concerned, it was not actual negligence for him to use the particular track, his cause of action was not lost because of hypothetical occurrences which might have convicted him of negligence. ,
The trial court, however, did not take this view, but adopted the defendant’s view, and instructed the jury that plaintiff was guilty of contributory negligence, unless observance of the bulletin had been waived by the defendant, which question he submitted to the jury. In my opinion the testimony in the case, and particularly that given by plaintiff, Albert Palmer, and John Bays, warranted the court in submitting to the jury the question of the abrogation of the bulletin as to the track to be used under such circumstances as existed in this case. I think' the court sufficiently corrected such errors as were committed in receiving opinion evidence as to the construction of rules and bulletins, so that there was no prejudicial, error.
No request for a ruling appears to have been insisted, upon as to the improper argument of counsel, and such argument is not, therefore, properly before us for consideration.
In my opinion the judgment should be affirmed.
Moore, J., concurred with Blair, J. Bird, J., did not sit.