(dissenting). Taking the verdict of the jury ás settling, for an appellate court, facts supported by substantial evidence and reasonable inferences therefrom, this- is the case: A southbdund freight train of the railway ■ company reached the village of Lewis;' Mo:, shortly after 1 o’clóck at night, and was then cut into two *359parts, one of 44 cars including the caboose/ and the other of the engine and 7 cars, and disposed upon sidings to leave a clear main track for a fast north-bound passenger train due to pass through the station shortly afterwards. The switches connecting the sidings with the main track were used in the movement of the freight traiii. When all was apparently in order the passenger train approached the station at a speed of from 40 to 45 miles an hour. It was running under special orders, had the right of way, and was to pass without stopping. When the passenger train reached the south switch which had been manipulated by one of the freight brakemen, it was diverted from the main track to one of the sidings and crashed into the end of the 44 cars. The engineer was killed, and the fireman was injured. After the wreck it was discovered that the brakeman of the freight train, instead of leaving the switch lined up with the main track, had thrown it for the siding and locked it with the spring lock used in such cases. The action was brought by the fireman to recover damages for his injuries. Under the Missouri law, controlling here, the criminal negligence of the brakeman was chargeable to the railway company, that is to say, the fact that he was a fellow servant of the injured fireman does not prevent recovery. So far this would seem to be a clear case, but it is said the fireman was guilty of contributory negligence because there was no signal light at the south switch where one should have been. The fireman perceived that fact, and under a rule of the company the absence of the light was a stop signal which he should have obeyed. It is true there was no signal light at the switch. The company had intrusted the maintenance of the switch lights at Lewis Station to a boy 11 years of age, and his excuse for the default was that the section foreman paid no attention to his requests for signal oil, and being without it he had left the lamps at his father’s store in the village. It is also true that a rule of the company provided that the absence of a signal at a place where one is usually displayed is a stop signal. But this is what the fireman saw as the passenger train approached the station: He saw that a freight train was there and had apparently been arranged so as to insure safety to the passenger train. He saw a faint line of light around the headlight of the freight engine fronting south, showing that it had been covered in accordance with a rule of the company to indicate that the train was clear of the main track. He saw the lights of the trainmen about the station grounds, and that one of them signaled the approaching train by raising and lowering his white lantern vertically, a signal commonly called the “high-ball,” which under a rule of the company meant “proceed.” Had there been a lighted lamp at the switch showing red down the track, it would have been a danger signal; had it shown white, it would have indicated safety. Concisely stated, these are the facts in the case, with one important exception to which I will refer hereafter. I will not discuss the evidence further than to say that a careful study of the record has convinced me that it was clearly sufficient to authorize the jury to find the facts as narrated above. Should we who are not triers of the fact say as matter of law that the fireman was guilty of negligence contributing to his injury because, observing the *360absence of a light at the switch, he acted upon the information imparted by the shrouded headlight and the signal to proceed?
Of course rules and the observance of them are necessary for the safe operation of a railroad, but the problem presented to the railroad man is always a practical, never a scholastic, one. If he stopped to split hairs he would be useless in the service. He is required to act' quickly, frequently in emergencies, and always in the light of conditions surrounding him at the time. Under the controlling law of Missouri the company was responsible to plaintiff for the conduct of the trainmen of the freight train, of the boy who left the signal lamps at his father’s store, and of the section foreman who neglected to give him oil; and I think that in this case, peculiarly .circumstanced as it is, such a condition of affairs was presented to the plaintiff as prevents us from saying as matter of law that he was negligent.
It is fairly debatable whether the signal given by the covered headlight that the freight train on the‘'sidings was clear of the main track was not false and misleading, the fact being that a switch used by it in taking the siding and lying between it and the on-coming train was so thrown as unavoidably to cause a collision. True, the freight train was in the clear in the sense that none of its cars physically encroached on the main trade, but was that all that the shrouded headlight signified ? Is it unreasonable to say that such a signal meant the freight cars were out of the way of the passenger train ? In fact the main line was not passable. With the switch thrown as it was the freight cars on the siding became an obstruction that meant a wreck, as much so as if they had been left standing on the main trade itself.
Again, the “high-ball” signal was clearly a false and misleading one. It is said that such signal is not intended for a train on the main line-when approaching a station. It is true the rules do not say it is. Neither do they say it is not. They do say, however, that a signal given by vertically raising and lowering a lamp signifies “proceed,” and the use of the signal is not limited in the rules. A natural and practical construction of this rule by railroad employés, making it applicable to the situation as plaintiff saw it, was abrogated, it is said, by a bulletin of the company; but the bulletin, if there was one, was not brought to plaintiff’s attention, and he was not charged with knowledge of it. As to him the bulletin never existed. I apprehend the case would not have been different if the trainman who gave the “high-ball” signal had, instead, hung his white, lamp at the misplaced switch to take the place of the light usually displayed there. So far as the rules shown in the record are concerned, the information conveyed by one was also conveyed by the other. Tor 'aught the plaintiff knew, the “high-ball” signal to proceed was given by one of the trainmen having possession of the station grounds for the very reason that there was no light at the switch. We should look at the case, not with that wisdom which comes after the accident, but from the standpoint of a man, reasonably intelligent and careful, knowing the rules and under duty to obey them, who, being confronted by the conditions which the plaintiff observed, is called upon to act.
I come now to the remaining feature of the case, and it may be assumed in considering it that no “high-ball” signal was given as claimed *361by the plaintiff. It is said in the opinion of the court that the fireman “neither heeded the warning signal of the absence of a light at the switch nor did he speak to the engineer calling his attention to the fact. This was culpable negligence on his part.” I think there is an error in this. There is nothing in the record indicating that the fireman did or did not impart his knowledge to the engineer. It being his duty to do so, I doubt that it is our right to presume in the absence of evidence that he did not perform his duty. Rather, the presumption is that he did his duty. More than this, the question pertains to a defense of contributory negligence, and if the failure to inform the engineer is important in this respect, it was the duty of the company to show it by evidence. The burden of proof is not sustained by the absence of evidence. I pass by the fact that the passenger train approached the station upon a straight track, that the switch stand from which the signal light was missing was upon the engineer’s side, and that his opportunity to discover its absence was even better than that of the fireman. If there is no presumption that the engineer was not informed by the fireman of the absence of a light, then the logic of the court’s opinion is that in order to escape the imputation of contributory negligence the fireman should have jumped from the engine or wrested control of it from the engineer. Yet we all know that the fireman is subordinate to the engineer and subject to his orders.
Although the railway company did not ask the trial court for a directed verdict, nevertheless the clear import of the foregoing opinion is that there should have been no recovery. This being so, I am constrained to express my dissent.