Appellant railway company owned and operated two certain railway tracks into and out of the city of Duluth, running parallel and about eight feet apart, known as the incoming and outgoing main tracks. The switchyard of the company is located on the southerly side of the tracks, at Twentieth Avenue West, and a cross-over track connects the yard with the main tracks. Respondent was a locomotive engineer, and at the time of the accident was in charge of a switch engine. His crew consisted of himself, the switch foreman, Banack, the head switchman, Guyer, and the following switchman, Robertson. On the fifteenth of December, 1906, at about 6:30 p. m., when about to cross the main tracks with his engine, respondent stopped in the clear of the incoming track for the purpose of having the switches lined up. The switch foreman boarded the engine at that point and took a position at the left-hand side of the cab. Robertson threw the switches on the incoming main track and Guyer went on towards the switch on the outgoing main track, and as he went along, but before he had reached the switch, he gave the lantern signal to the engineer to proceed, and at the same time the foreman told him to go ahead. He thereupon proceeded slowly, keeping a lookout, and had crossed the incoming track and was moving his engine onto the outgoing main track, when the light from the yard depot at Twentieth avenue shone on the end of the box car of an outgoing freight, whereupon he immediately reversed his engine and did what he could to prevent a collision, but it was too late, and the car struck his engine. Such was the testimony of 'respondent.
The distance from the point where the engineer received the switch • man’s lantern signal to advance to the point of the accident wg,s be
Respondent recovered a verdict upon the ground that appellant was guilty of negligence in operating the freight train without displaying the usual signal lights at the end of the first car. The evidence was sufficient to sustain the charge in this respect, and the principal question for determination here is whether, under the rules and practice of the company, respondent was guilty of contributory negligence in permitting his engine to foul the outgoing main track before the switch had been thrown to show the green light to him and the red light to the main track.
Appellant argues that it conclusively appears that respondent was guilty of negligence, for the reason that he ignored two important rules of the company:
1. “It must be understood that no notice will be given of the contemplated running of trains. Be prepared for them at any hour of the day or night.”
2. “All trains must approach terminals, the ends of double tracks, junctions, railroad crossings at grade, and drawbridges prepared to stop, and must not proceed until switches or signals are seen to be right or the tracks seen to be clear.”
With reference to the facts and the rules, what was the duty of the engineer? Was respondent required to wait in the clear of the outgoing main track until the switch had been turned showing him the green light, notwithstanding the switchman’s signal to proceed, and notwithstanding he himself was on the lookout, but saw no signs of an approaching train? The rule relied upon, fairly considered, did
The evidence does not conclusively support appellant’s contention that it was the uniform custom to interpret this rule to mean that, where there was a switch light which could be seen, it was the duty of the engineer, not only to look out for other signals and to keep a personal observation of the track, but also to wait until the switch light was properly thrown before advancing. Some of the witnesses testified in a general way that no engineer should foul a track at a junction until he saw the switch light properly turned; but on cross-examination it was generally admitted that the engineer was required to personally observe the track, and was permitted to depend upon the general result of his observations. The evidence warrants the statement that, under circumstances such as developed here', respondent was in the performance of his duties if he kept a lookout for approaching trains on the track, sent the switchman forward, and obeyed his signal, even though the switchman had not yet turned the switch. We find nothing unreasonable in this view of the case. The switchman had gone to the outgoing track for the purpose of turning that switch. Before turning it, he was required to see if the main track was clear. The turning of the switch depended upon his observation. There might be a point of danger between the time the switchman gave the lantern signal and the time he turned the switch light. That would depend upon distance and the time. The rules do not forbid switch-men from anticipating the switch light signal by swinging the lantern after the track had been examined, and simply because the switchman gave the signal before he had turned the switch does not, in itself, prove that respondent was guilty of contributory negligence in accepting the signal as safe in connection with his own inspection of the tracks.
Affirmed.