In my opinion the court below commited errors in its instructions to the jury which require a reversal of the judgment appealed from. The principal issues raised by the pleadings and the evidence relate to the position of the arms of signal or semaphore No. 44 at the time the engine upon which the plaintiff was riding approached and passed that signal immediately before the accident. In his complaint plaintiff charged that defendant was negligent in that it caused signal No. 44 to show that the engine upon which he was riding could proceed with safety into and through tunnel No. 4 when such signal should have indicated that the engine must proceed with caution and be perpared to stop at signal No. 24. In its answer defendant denied negligence on its part. It also alleged that at the time in question signal No. 44 indicated that the train upon which plaintiff was riding should proceed with caution into and through tunnel No. 4, and be prepared to stop at signal No. 24; that the accident which caused plaintiff's injury was due to his own negligence in failing to obey the rules of the defendant company, in that he failed to keep a constant and vigilant lookout, and failed to note the position of all signals, including signal No. 44, and likewise failed to communicate to the engineer by its name the position and indication of that signal. There is a conflict in the evidence as to the position *Page 94 of the arms of signal No. 44 as train No. 78 approached and passed that signal. Plaintiff and the engineer, Weir, both testified that at the time in question that signal showed clear. Defendant offered evidence which tended to show that in view of the fact that signal No. 24 was admittedly at stop it was impossible, because of the mechanism of the interlocking plant, for signal No. 44 to have been at clear. The evidence, without conflict, shows that the semaphores which were in use by the defendant company were so constructed that they may be placed in one of three positions, viz., clear, caution, or stop. There is no evidence in this case which shows, or tends to show, that signal No. 44 was at stop. Therefore under the evidence in this case the jury was called upon to determine whether signal No. 44 was at clear as testified to by plaintiff and Engineer Weir, or at caution as indicated by the testimony of the defendant's witnesses with respect to the mechanism of the interlocking plant which defendant maintained at the Bay Shore yards. The parties are all agreed that in view of the fact that signal No. 24 was at stop and the derail open, signal No. 44 should have been at caution. It is an elementary principle of law that negligence will not be presumed in the absence of proof of its existence. That the burden was cast upon the plaintiff to prove, by a preponderance of the evidence, that signal No. 44 was at clear and not at caution before the jury was at liberty to find it was at clear is equally elementary. In the absence of proof of the position of the arms of that signal, or in the event the evidence upon that issue was equally divided, the jury was bound to find it was at caution. The court below, in effect, so informed the jury in some of its instructions, but in instruction No. 13 the jury was told that:
"You are instructed that it is claimed by the defendant that before the train passed the signal or semaphore near the westerly portal of said tunnel No. 4 that the signal of said semaphore indicated that the said train should proceed with caution and be prepared to stop before reaching the signal or semaphore at the easterly portal of said tunnel, and that plaintiff was negligent in failing to observe the signal and *Page 95 communicate the same to the engineer. As to said defense you are instructed that the burden of proving contributory negligence is upon the defendant, and that before you could find the plaintiff guilty of contributory negligence regarding said matter defendant would have to show, by a preponderance of the evidence, that said signal near the westerly portal of said tunnel had been set at caution (if it was so set) a sufficient length of time before said train arrived at said signal for the fireman, in the exercise of ordinary care, to have observed the same, and that it was his duty to, and that he could in the exercise of ordinary care, have observed the same, and that it was his duty to communicate the position of said signal to the engineer, and if defendant has failed to establish all of these matters, by a preponderance of the evidence, then the plaintiff would not have been guilty of contributory negligence in that regard."
Defendant took exceptions to various parts of the foregoing instruction. As one of its defenses defendant alleged that plaintiff was negligent in failing to keep a proper lookout. Upon that issue the burden was cast upon the defendant to establish, by a preponderance of the evidence, its allegations in such respect. Instruction No. 13 commingled the burden of defendant to prove, by a preponderance of the evidence, that plaintiff failed to keep a proper lookout and observe the position of signal No. 44 with the burden of the plaintiff to prove, by a preponderance of the evidence, that signal No. 44 was not at caution for a sufficient length of time before the train arrived for the fireman to have observed it in that position. That instruction conveys the idea that the burden was on the defendant not only to show that plaintiff failed to keep a proper lookout and observe the position of signal No. 44, but also that the burden was on the defendant to prove, by a preponderance of the evidence, that signal No. 44 was at caution. With respect to the latter proposition the instruction was, in my opinion, clearly erroneous. The jury was not at liberty to find from the same evidence for one purpose that signal No. 44 was at caution, and for another purpose at clear. It was either in the one or the other position for all purposes of this case. Of necessity the position of the arms of signal No. 44 must be determined by the application of one rule of law and not *Page 96 by two conflicting rules of law. If the jury should attempt to apply two conflicting rules of law as guides in determining the position of the arms of signal No. 44, they might well have been confused and misled in their deliberations. The only way that defendant could disprove plaintiff's claim that the signal was at clear was to offer proof that it was in some other position, viz., at caution. The fact that defendant (in order to ward off plaintiff's claim that signal No. 44 indicated clear) alleged and offered evidence tending to show that signal No. 44 was at caution did not shift the burden of proof on that issue. NewOrleans N.E.R. Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535,62 L.Ed. 1167; Schuyler v. Southern Pac. Co., 37 Utah 612,109 P. 1025; Id., 37 Utah 581, 109 P. 548; Strickland v. CapitalCity Mills, 70 S.C. 211, 49 S.E. 478. There is also merit to appellant's contention that the latter part of instruction No. 13 is susceptible of the construction that before the jury could find that plaintiff was negligent it was incumbent upon the defendant to show, by a preponderance of the evidence, that it was plaintiff's duty to keep a lookout for the position of signal No. 44, and, likewise, to show that plaintiff owed a duty to communicate the position of said signal to the engineer. While plaintiff contends that when the whole of instruction No. 13 is read no part thereof is open to the construction contended for by the defendant, I am impressed with the view that the instruction is, to say the least, so involved that it might well have confused the jury with respect to the necessity of the defendant to prove what were the duties of the plaintiff. Under the evidence in this case the plaintiff, as a matter of law, owed a duty to keep a lookout for signals and to communicate their position to the engineer. By instructing the jury in instruction No. 13 that the burden was on the defendant to prove, by a preponderance of the evidence, that signal No. 44 was at caution, the trial court placed an undue burden upon the defendant as to its defense of contributory negligence.
Defendant excepted to the giving of various parts of instruction *Page 97 No. 14. Among the parts to which defendant so excepted are: "If you believe from the evidence that the plaintiff, in the performance of his duites on said engine, acted as an ordinarily prudent fireman under the same or similar circumstances, then he would not be guilty of contributory negligence in any matter pertaining to said signal." The objection urged against the foregoing parts of instruction No. 14 are, in my opinion, well taken. One of the rules of the defendant company required that the engineer and fireman must, when practicable, communicate to each other by name the indication of all signals affecting the movement of their train. At the time in question it was the duty of the plaintiff, when his other duties did not engage his attention, to keep a constant and vigilant lookout for signals affecting the movement of his train and report the position of the signals to the engineer. Plaintiff makes no claim that at the time in question his other duties required his attention. His testimony is to the contrary. That plaintiff fully understood his duties in such respect is evidenced by his testimony wherein he stated that he was "conscious of the fact that we were hauling other members of the crew and a trainload of passengers, women and children, and the safety of those passengers is the first concern of the engineer and fireman. There is nothing that is of as much importance to an engineer and fireman as the safety of the passengers they are hauling and we know the responsibility that is behind us. When the signals are so the fireman can see them the most important thing for him to do is to observe the position of signals which govern the movement of the train. It is on that account that the fireman looks to see the position of the signals when practicable"; that when not occupied with other duties it was the duty of the fireman to observe the signals and call their position to the attention of the engineer.
Defendant also excepted to that part of instruction No. 14 wherein the court instructed the jury that: "And in that connection you are instructed that the fireman would have *Page 98 a right to assume, until he learned to the contrary, that the engineer would see and observe said signal and operate his engine in accordance with the signal displayed," and also the following language in the same instruction, "and in that connection you are instructed that the fireman would have a right to assume, until he learned to the contrary, that the engineer would see and observe said signal (No. 24) and operate his engine in accordance with the signal displayed."
To inform the jury that plaintiff had a right to assume, until he learned to the contrary, that the engineer would see and observe signals and operate his engine in accordance with the signals displayed, was, in effect, to inform the jury that plaintiff was not required to keep a lookout for signals or inform the engineer of their position until he learned that the engineer was not performing his duty of observing the signals and operating his engine accordingly. That it was competent for the defendant company to promulgate rules for the safety of its employees, for the preservation of its property, and for the protection of its passengers, cannot be doubted; that each employee alike owed to his employer a duty to obey such rules is equally clear. There would be little, if any, purpose in an employer making rules for the guidance of its employees if each employee is at liberty to disregard such rules upon the pretext that he assumed other employees would perform their duty, and therefore it would be unnecessary for him to obey the rules. That the observance of a rule requiring a fireman, when not occupied with other duties, to keep a lookout for signals affecting the movement of his train, and when practicable communicate to the engineer the position of such signals, tends to decrease the risk of an accident, is likewise self-evident. When both the engineer and fireman are keeping a lookout for signals and calling to each other the position of such signals, there is less likelihood of a fatal mistake than when the engineer alone is performing that duty. If, as stated in that part of the instruction now under review, the fireman may rely upon the engineer to perform that *Page 99 duty until he learns to the contrary, it may well then be too late to avoid an impending danger. Under the rules of the defendant company it was the personal and absolute duty of the plaintiff to keep a lookout for signals and report their position to the engineer at all times when his other duties did not prevent him from doing so even though the engineer was apparently performing a similar duty. A failure of the fireman to perform that duty constituted negligence on his part. His duty in such respect was measured by the rules of the defendant comapny and not by what an ordinarily prudent fireman might do under similar circumstances. Missouri, K. T. Ry. Co. v. Collier (C.C.A.) 157 F. 347; Wolsey, v. L.S. M.S. Railroad Company, 33 Ohio St. 227;Atchison, T. S.F.R. Co. v. Reesman (C.C.A.) 60 F. 370, 23 L.R.A. 768. To the same effect are a number of the cases cited by the defendant in support of the so-called doctrine of "primary negligence," which cases are collected in the prevailing opinion. By instructing the jury that plaintiff had a right to assume, until he learned to the contrary, that the engineer would see and observe signals and operate his engine in accordance with the signals displayed, the defendant was in great part deprived of its defense of contributory negligence. And by informing the jury that plaintiff was required to use only such care as would be used by an ordinarily prudent fireman under the same or similar circumstances the jury was, in effect, told that the rules of the defendant company were not necessarily controlling upon plaintiff. The errors committed in instructions Nos. 13 and 14 are, in my opinion, such as to require a reversal of the judgment, nor may it be said that the instructions complained of were cured by other instructions. When two instructions are inconsistent, it is impossible to tell whether the jury in its deliberations followed the correct or the incorrect statement of the law, and as a result the judgment must be reversed. Jensen v. Utah Ry. Co., 72 Utah 366, 270 P. 349.
The judgment should be reversed, and a new trial granted. *Page 100