Davis v. Payne

216 P. 195, 108 Or. 72, 1923 Ore. LEXIS 44

• Court: Oregon Supreme Court
• Decided: June 12, 1923
• Status: Published

Opinions

BAND, J.

The plaintiff brought this action against the director general of railroads to recover damages for personal injuries sustained by him on May 31, 1918, while engaged as a locomotive engineer in operating a freight engine over the road of the Southern Pacific Company between the stations of Oswego and Cook.

At the time of the injury the plaintiff was an experienced locomotive engineer, and was in charge of the engine attached to local freight train No. 231, running from the Brooklyn yards at Portland, Oregon, to Corvallis, Oregon. He was thirty-eight years of age at the time and had been employed by the Southern Pacific Company for about twenty years. He was familiar with the line of track over which his engine was passing, with all of its branch connections as well as with the operation of its trains, with the rules of the carrier and his duty to observe train orders. His run on that day was over the main line from Portland to Corvallis, via Oswego and Cook. Oswego is eight miles from the yards at Brooklyn, and Cook is four miles beyond Oswego. At Cook a branch line from Beaverton, seven miles in length, connects 'with the main line.

Hpon leaving the Brooklyn yards, from one to two hours before the injury was sustained, the plaintiff received written train order No. 226, reading as follows: "No. 234, engine 2911, has right over No. 231, Beaverton to Oswego.” In order for No. 234 to reach Oswego from Beaverton, as plaintiff well knew, it was necessary for that train to pass over the branch line to Cook, and from Cook over the main line to Oswego. Between Oswego and Cook the road runs over a single track. Upon reaching Oswego, the plaintiff, without any knowledge or information as to the whereabouts of train No. 234, and without receiving any contrary or additional order, proceeded to move his train from Oswego to Cook over the same track that he knew train No. 234 would be compelled to take. While en route from Oswego to Cook, plaintiff’s train No. 231 collided with engine 2911 of train No. 234, coming from Cook to Oswego. That train consisted of about thirty loaded cars, five empty cars, and a caboose. This head-on collision caused the wreck of both trains and the injuries complained of by the plaintiff, instantly killed the engineer of train No. 234 and injured other employees of that train crew.

The negligent acts of the defendant, upon which plaintiff relies, are set forth in his complaint as follows:

“That on May 31, 1918, the director general of railroads, through his officers and agents, directed the plaintiff herein to proceed with engine No. 2512 from Portland, Oregon, to Oswego, Oregon, by way of Cook, to Corvallis, Oregon, and to haul with the said engine over said line two loaded cars, one empty car and a caboose, which cars were cars used in carrying freight from points outside the state of Oregon, from other states, to points within the state of Oregon and within the state of California; that said cars at said time were hauling freight from points in states outside of the state of Oregon to points within said state of Oregon; that said train was what was known at said time as West Bound Local Freight No. 231; that plaintiff’s said train was directed to leave Brooklyn yards, Portland, Oregon, at 9:45 a. m. on May 31, 1918, and did in conformity with said directions leave said yards at said time; that before leaving, the director general of railroads through his agents, servants and employees caused to be delivered to Engineman Davis, plaintiff herein, and to Conductor Frederickson, conductor of said train, Order No. 226, which order read as follows: ‘No. 234, engine 2911, has right of way over 231 Beaverton to Oswego’; that before leaving the railroad yards at Brooklyn, Portland, Oregon, and at the time Order No. 226 was given to plaintiff herein, plaintiff showed said order to Ms fireman, who read the same; that Conductor Frederickson was at the said time given a copy of said order; that under said conditions plaintiff proceeded with said train over the lines of the Southern Pacific Company to Oswego, Oregon, where plaintiff in company with the conductor of said train checked the register and returned to his place in the engine cab; that at Oswego at said time another train, known as an electric train, was being run by the director g'eneral of railroads over the same line on which plaintiff was operating his said train; that by reason of the fact that said electric train left Oswego before train No. 231, under the rules and regulations then in force, it was necessary for plaintiff to remain at Oswego for the period of ten minutes; that at the expiration of the said ten minutes, Conductor Frederickson negligently and carelessly gave the order for plaintiff to proceed with said train on the way toward Corvallis over the line of railroad as hereinbefore described; that in compliance with the said order and direction plaintiff herein started on the way toward Corvallis over the said line of railroad; that said train was then and there equipped with an air brake system, consisting of compressed air pumps, chambers, cylinders, reservoirs, pipe lines and valves, rods, hangers and brake shoes, which system extended from the engine at the front end of said train to the caboose at the rear end thereof, and was then and there in working condition and operative, and so arranged and equipped that by the simple and easy movement by a man’s hand of a valve (commonly called the conductor’s valve) in said caboose, the compressed air contained in said brake system would be discharged into the atmosphere and the brake shoes in said systern would thereby be automatically applied to and held against the wheels of the engine, cars and caboose in said train, and thereby instantly stop said train; that either Conductor Frederickson or any one of _ the three brakeman who were then and there in said caboose could at any moment have instantly stopped said train by moving said valve and thereby automatically applying said brake shoe to said wheels, and they and each of them should have instantly stopped said train when it then and there started to leave Oswego, and if they had then and there so stopped said train, the collision hereinafter referred to would not have occurred; that Conductor Frederickson and each of said three brakemen negligently and carelessly omitted then and there to move said valve and thereby stop said train. That as plaintiff, in operating said train, approached a cut about twelve hundred feet long, the walls of said cut being ten to thirty feet high, plaintiff herein, without any warning whatever from his fireman or the conductor or any of the brakemen or anyone else, came upon freight train No. 234 approaching at a rate of about twenty miles per hour, said train consisting of about thirty loaded cars, five empty cars and a caboose, hauled by locomotive No. 2911; that the said track at said point was a single line track and the trains were so nearly upon each other that it was impossible for plaintiff to do anything to avert a collision, and the said trains Nos. 231 and 234 came together in a head-on collision with great force at a point about 2.2 miles east of Cook, which is the junction point between the Newberg and Tigard branches of said railroad; that in said collision the plaintiff herein was severely and permanently injured, as more particularly hereinafter set forth; that the force of said collision broke the left cylinder and the frame of locomotive 2512 back to the front drivers, the cab was demolished, the tank frame was broken in two and the trucks bunched near the rear end of the locomotive; the first car in train 231 came to rest upon the top of the tender and was practically destroyed, and locomotive 2911 was greatly damaged and jammed.

“That the carrier, the director general of railroads, his agents, servants and employees, on the 31st day of May, 1918, were reckless, negligent and careless in giving to the plaintiff at Brooklyn, Oregon, Order 226; that said director general of railroads, his servants, agents and employees, were further negligent, reckless and careless in not making said order read: ‘Cook to Oswego’ instead of ‘Beaverton to Oswego’ and in not giving said order to the plaintiff at Oswego instead of at Brooklyn; that said order did not comply with the rules of the carrier in that the said order named towns off the line over which plaintiff’s train ran, and in that said order did not apprise plaintiff of the position of said train No. 234; that said director general of railroads, his agents, servants and employees, were further reckless, negligent and careless in not giving a meet order requiring plaintiff’s train No. 231 to be held at Oswego until train No. 234 arrived there; that under said circumstances it was customary to give a meet order where trains were being operated over a single line of track; that it is and was at said time customary under such circumstances to name only towns on the line over which plaintiff’s train ran, and not to name any towns or points not on the line over which plaintiff’s train ran; that in this particular said director general of railroads, his agents, servants and employees, were careless, reckless, and negligent; that rule 752 of the carrier reads: ‘Conductors and enginemen are required to show their train orders to the brakemen and firemen who must read and return them, and should there be occasion to do so, they will remind the conductor or enginemen of their contents. Conductors must not verbally inform enginemen of the contents of train orders, but should obtain from them an understanding of all train orders restricting their rights, if practicable, before they are acted upon.’ That the director general of railroads, his agents, servants and employees, were further negligent and careless in not requiring train 231 to remain at Oswego until train No. 234 arrived, and in giving a clear train order signal at Oswego, Oregon, and in failing to stop the said train by the use of the air brake system. That each and all of said acts of negligence on the part of the director general of railroads, his agents, servants and employees, was and were the proximate cause of the injuries sustained by plaintiff herein as more particularly hereinafter set forth.”

The answer denied any negligence on defendant’s part and in substance alleged that plaintiff’s injury was caused solely by his own negligence in disregarding and refusing to obey written train order No. 226, and was not caused by any act or omission of the defendant or of any of the officers, agents or employees of the defendant. As a second offense, the defendant alleged that the plaintiff assumed the risk. The trial resulted in a verdict and judgment for $25,000 in favor of plaintiff, from which defendant has appealed.

This action was brought under the federal Employers’ Liability Act, 35 Stats, at L. 65, Chap. 149. Section 1 of the act imposes upon every common carrier by railroad, while engaged in interstate commerce, liability for injury to an employee while employed by such carrier in such commerce, “resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances * * or other equipment.” By Section 3 of the act “the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damage shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.” By the proviso to Section 3 “no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” And by Section 4 of the act no employee shall be “held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

Where concurring acts of the employer and employee contribute to the injury or death of the employee, the carrier is liable under this act: Spokane & I. E. R. Co. v. Campbell, 217 Fed. 518 (133 C. C. A. 370), affirmed, 241 U. S. 497 (60 L. Ed. 1125, 36 Sup. Ct. Rep. 683, 689).

“Where the causal negligence is partly attributable to him (the injured employee) and partly to the carrier, he shall not recover full damages but' only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both.” Norfolk W. R. Co. v. Earnest, 229 U. S. 114, 122 (Ann. Cas. 1914C, 172, 57 L. Ed. 1096, 33 Sup. Ct. Rep. 654, see, also, Rose’s U. S. Notes).

“It is only when the plaintiff’s act is the sole cause — when the defendant’s act is no part of the causation — that the defendant is free from liability under the act.” Grand Trunk W. Ry. Co. v. Lindsay, 201 Fed. 836, 844 (120 C. C. A. 166, 174); affirmed, 233 U. S. 42 (Anna. Cas. 1914C, 168, 58 L. Ed. 838, 34 Sup. Ct. Rep. 581).

“If an act of the employee is the sole cause of the result, it is not contributory, and the railroad company would not be liable therefor, even under the provisions of the employers’ liability act.” Fletcher v. South Dak. Cent. Ry. Co., 36 S. D. 401 (155 N. W. 3).

As there is no suggestion in the pleadings or in the evidence in this case that the carrier violated any statute enacted for the safety of employees, or that the injury resulted in whole or in part by reason of any defect or insufficiency in the property or equipment of the road, in order for plaintiff to recover under the federal Employers’ Liability Act, it was necessary for him to -show that some negligent act or omission by some officer, agent or employee of the carrier, contributed in some way to bring about the injury complained of, because if the plaintiff’s injury was caused solely by his negligence, he cannot recover under the federal Employers’ Liability Act.

This case, therefore, presents the question of whether the evidence disclosed any facts or circumstances from which the jury could reasonably infer that any negligent act or omission of the defendant, or that of any officer, agent or employee of the defendant, in any way contributed to bring about, or was any part of the causation, of plaintiff’s injury, because it was shown that plaintiff’s act was the sole cause of the injury, then defendant’s motion for a directed verdict, as a matter of law, should have been sustained, notwithstanding that under the federal Employers’ Liability Act “no degree of contributory negligence, however great, will bar a recovery of any damages.”

The Director G-eneral of Railroads, at the time of the injury, was operating the Southern Pacific Lines under standard rules. Plaintiff had been employed by the Southern Pacific Company for about twenty years. He was an experienced locomotive engineer and he testified that he was familiar with the rules. Standard rule No. 83 (b) provides: “Enginemen before leaving register stations, except the initial point of tbeir run, will require from the conductor a memorandum on prescribed form showing the numbers of all superior trains, and stating he has checked the register and that they have all arrived or departed, as the case may be.” Standard rule No. 906 reads as follows: “Enginemen must know their time on the road, and will not start from a station even though they receive a signal from the conductor, unless they can reach the next station in time to properly clear .superior trains.” Rule No. 106 provides that: “In all cases of doubt or uncertainty, the safe course must be taken and no risks run.” And rule B provides that in case of doubt as to the meaning of any order an application for explanation of the order shall be made to the proper authority.

In support of his allegation that the defendant and the agents, servants and employees of the defendant were negligent in giving plaintiff train order No. 226 and in not making said order read “Cook to Oswego” instead of “Beaverton to Oswego” and in not giving the order to plaintiff at Oswego instead of at Brooklyn, plaintiff, on his direct examination testified that train order No. 226, the order delivered to him at Brooklyn between one and two hours before the collision of trains No. 231 and No. 234 occurred, contained information not essential to the movement of plaintiff’s train in that it mentioned Beaverton, a point not on the main line, and hence did not conform to rule No. 201 which reads: “For movements not provided for by time table, train orders will be issued by authority and over the signature of the superintendent. They must contain neither information nor instructions -not essential to such movement.” And for that reason alone he contended that the. order, using the language he employed while testifying, was “inoperative and ineffective.” His contention is that the order should have stated that train No. 234 had right of way over train No. 231, Cook to Oswego, and should not have stated, as it did, that train No. 234 had the right of way over train No. 231, Beaverton to Oswego, and that because the order included not only the four miles of track between Oswego and Cook, over which both trains were to pass, but also the seven miles of the branch line from Beaverton to Cook, over which train No. 234 alone was to pass, the order was a nullity and the plaintiff had a right to disregard it m toto, and it was so argued and insisted upon, upon the argument here, and this is the principal contention in the case.

It appears from the testimony that train orders of the character of the one involved here, that is, train orders inverting or reversing the rights of trains and giving to an inferior train a superior right over a prescribed track, are duplicate orders given in identical terms to the different train crews affected by the order, and hence that part of the track between Beaverton and Cook, although not a part of the track over which plaintiff’s train was to run, yet was an essential part of the movement of train No. 234 in passing from Beaverton to Oswego; and, if this is true, train order No. 226 was in entire conformity to the requirements prescribed by rule No. 201. But, however that may be, it conclusively appears from plaintiff’s own testimony that he thoroughly understood the meaning and effect of this order. He knew that in going from Beaverton to Oswego, train No. 234 would have to pass over the branch line to Cook, and then, for a distance of four miles, over the main line from Cook to Oswego, and that his own train, to reach Cook, wonld have to go over the same track between Oswego and Cook that train No. 234 wonld be compelled to use in its movement from Beaverton to Oswego. This order, therefore, contained all of the information essential to the safe movement of both trains, and if plaintiff had complied with its directions he could not have received the injury complained of. The order could not, and did not, mislead the plaintiff, and it stated the movement of train No. 234 exactly as intended for it to move, and informed the plaintiff that train No. 234, upon its arrival at Cook, would pass over the main line from Cook to Oswego, and, while passing from Cook to Oswego, was superior in right to plaintiff’s train No. 231 over the four miles of track between said points. That plaintiff understood this order to mean exactly that, and nothing else, is apparent from his own testimony. On his direct examination he testified: “The order was given to us at Brooklyn, handed to me by the conductor, from 31, addressed to train No. 231 at Brooklyn, to C. and E. — 231—that is, conductor and engineer. ‘No. 234 engine 2911 has right over No. 231, Beaverton to Oswego. ’ Q. What train ordinarily has right of way, 234 or 231? A. 231 had right of way by time-table movement. Q. How could that right of way be changed under the company’s rules? A. Only by train order. The only time you can relieve a train of its rights is with a train order. Q. How far could you go with this order or would this order affect your train? A. This order was given out giving rights over us, ‘Beaverton to Oswego’ rule No. 201. This order gave No. 234 right over us from a point on the line over which we did not run. Q. When it is desired to change the rights of way in opposition to the time-table what kind of an order would you receive? A. No. 234 has right over 231 from Cook to Oswego — over our lines. Q. Would that kind of an order give 234 right of way over you? A. Yes. Q. How under the rules did you interpret order No. 226 as it was given to yon? A. Inoperative and ineffective. The Court: What do you mean by that? The Witness: That the order didn’t conform to the standard rules not naming points on which our train was scheduled to run. It gave this train right over us over a piece of track seven miles in length that our train wasn’t scheduled to run over, over this branch from Beaverton to Cook. Q. Beaver-ton to Oswego was the order? A. Yes, Beaverton to Oswego was the order. There is a space of eleven miles in there, — they gave them orders over us eleven miles when we only traversed four miles of this track. We were on our way to Corvallis by the way of -. The Court: It would cover four miles of your track? A. Yes, it would cover four miles of our track. Q. Mr. Davis, you read a few moments ago rule No. 201, now I ask you if that order conformed to rule 201? A. No, sir. Q. Why not? A. As it contained information not in regard to the operation of our train. Q. What did you have this time, what kind of an order did you have this time? A. Bight of track order from Beaverton to Oswego. Q. If this order had been made Cook to Oswego, what would it have been, a meet or wait order? A. It would have been a right of track order. A juror: What does he mean by á right of track order? A. Transferring the rights of the train. Q. What is the difference between that and a meet order? A. A meet order designates a certain spot that trains shall meet, right of track order transfers the right of trains. The Court: If it had ‘Cook to Oswego’ it would mean that you had to stay at Oswego until the other train got there? A. Not necessarily. Under the other rules it simply switches the rights around of these two trains. If a superior train has its right transferred to another train it can still proceed as long as he clears the other fellow’s schedule. The Court: It would give the inferior train the rig’ht of way provided it could get to the connecting point first? A. Tes, he would have to clear his schedule as provided by the rules to any point along the line which you could clear. The Court: At what time on the time-table was the Beaverton train to get to Cook? A. No. 234 was a train that we rarely ever saw, it was scheduled into Brooklyn hours before we were due out. It was a train that for weeks and weeks and weeks we would never even hear of.”

On cross-examination plaintiff testified: “Q. When you got this order at Brooklyn what sort of a form was it on? A. Form 31. Q. You read the order? A. Yes. Q. The conductor handed it to you? A. Yes. Q. And you read it? A. Yes. Q. Did you have any doubt about its meaning? A. No, sir. Q. What did you think it meant, just what it said, what did you think it meant? A. Train 234 has right over 231 Beaverton to Oswego. Q. Did you note the route that train 234 would take, Beaverton to Oswego? A. Yes. Q. You knew that route would be Beaverton to Cook and Cook to Oswego? A. Yes. Q. And you knew that your route lay from Oswego to Cook? A. Yes. Q. And you knew under that route you would traverse the same route of track that 234 would traverse? A. Tes. Q. And yet yon considered that order meaningless? A. The order was ineffective and inoperative. Q. Why? A. It did not mention the stations over which our train traversed. Q. Did it mention Oswego? A. Yes. Q. Was your train affected there? A. No, sir. Q. Yon didn’t go to Oswego? A. We went through Oswego. Q. You would have to go from Oswego to Cook? A. Yes. Q. And that train would have to go from Cook to Oswego? A. It would. Q. And yet you tell the jury that that order did not affect yon? A. No, that order did not affect me, it was not in the regular form. Q. And you had no doubt about it whatever? A. Mentioning track over which our train did not run. Q. Yon had no doubt about the meaning of that order? A. No, sir. Q. You had no doubt that it was absolutely meaningless as far as you were concerned? A. Yes. Q. You did not know why it was even handed to you? A. Orders are frequently handed to me that have no meaning. Q. On form 31 ? A. On various forms. Q. Orders restricting the movements of your train and making other trains superior to you are handed to you and have no meaning? A. Yes. Q. That is your statement to this jury? A. Yes. Q. An order converting your train from an inferior to a superior train is handed to you and it has no meaning? A. This order had no meaning as far as I was concerned. Q. Didn’t this order expressly refer to train 231? A. Yes. Q. Wasn’t that your train? A. Yes. Q. Wasn’t it addressed to the conductor and engineer of train 231? A. Yes. Q. Didn’t it tell the conductor and engineer of train 231 that train 234 had a right of way over them? A. Yes. Q. And yet you tell the jury that that order had nothing.to do with you? A. Yes. Q. You didn’t bother about that order? A. That order was ineffective and inoperative because it was not up to the form of the rules. Q. And you knew, Mr. Davis, that if you disobeyed an order restricting your rights and making another train superior over you and giving another train the right of way, that if you should disobey such an order that it might mean death to not only one but to a hundred people, didn’t you? A. Yes. Q. And yet you took the responsibility of determining that that order meant nothing, that is what you tell the jury? A. I take this stand that that order was meaningless to me, it was not in conformity to the rules, that I would act upon that order again the same as I did that day. Q. And you as an engineer would take an order of that kind and put your construction on it in that way? A. Yes. Q. Because you did not think it followed a certain form? A. Yes. Q. And because it included a territory larger than what you considered necessary? A. Yes. Q. Your only objection to that order is that instead of just saying Cook to Oswego it said too much, it said Beaverton to Oswego? A. That order does not conform to the rules. Q. Is there any other objection to that order that you know of except instead of simply saying Cook to Oswego it included too much territory and said Beaverton to Oswego, is there any other defect in that order? A. Yes, that order did not give right of track over us, over the line which we traveled. Q. If it had said Cook to Oswego, you think it would? A. Yes. Q. Then I repeat the question again, I would like to have you tell me whether there was any other informality in that order except the fact that you think that it included that territory from Beaverton to Cook, anything else about that order that you figure? A. That was enough. Q. Was there anything wrong about that order except that it started at Beaverton over that line to Oswego rather than starting at Cook? A. The form that the order was given in nullified it. Q. Was there anything else that nullified it except the fact that it included more track there, other track in ■the order than that over which you were to go? A. There was nothing else in the order, your Honor. Q. Then you can answer the question yes or no. A. No. Q. Now what is your duty when you have a doubt as to the meaning of an order? A. Take the safe side. Q. If there is anything peculiar about it or that you don’t understand do you run your train without getting an explanation of it? A. If the order affected me I get an explanation from the dispatcher. Q. You are familiar with rule ‘B’ in the very beginning of the rule to the effect that employees must be conversant with and must obey the rules, and if there is any doubt about the orders they must apply to the proper authority for an explanation of the order? A. Yes. Q. You knew that rule, didn’t you? A. Yes. Q. You were familiar at that time with rule 106 which reads: ‘In all cases of doubt or uncertainty the safe course must be taken and no risks run’? A. Yes, sir. Q. You are familiar with those rules? A. Yes. Q. And when you saw that order you had never seen an order like that? A. No, sir. Q. Never in all your experience? A. Never had had an order like that before. Q. Giving the other train the right of way. over you from Beaverton to Oskego, whereas you ran only from Oswego to Cook so far as that, and yet you did not apply for any explanation of that or for any further information on the subject, and having that order in mind giving that train the right of way from Beaverton to Oswego, knowing that it would have to go by way of Cook, you deliberately left Oswego, is that the fact? A. Yes. Q. That is what you tell the jury? A. Yes. Q. When you left Brooklyn you knew that that train 234 had not reached Brooklyn, didn’t you? A. Yes. Q. How did you know it? A. If that train had reached Brooklyn, we would not have received that order. I would not check against that train if it was in at the time I was at the register to check against it. Q. You say now do you that you knew 234 had not gotten into Brooklyn? A. Yes. Q. You knew that it was somewhere between Beaverton and Brooklyn? A. I didn’t know where the train was, Mr. Nelson. Q. You didn’t know— A. No. Q. When you got to Oswego you looked at the train register there? A. Yes. Q. And had 234 gotten into Oswego? A. I did not check against train 234. Q. You did not even look to see whether it had gotten there? A. I didn’t have to check against the train 234. Q. You had this order? A. Yes. Q. And you did not look to see whether that was in, you didn’t look to see whether that train was in? • A. No, sir, didn’t check against train 234. The Court: Why didn’t you? A. It wasn’t necessary, it didn’t affect our right. The Court: That was the reason you didn’t do it, because you didn’t think it affected you? A. Yes.' Q. Is that the train register that you checked? A. Yes, sir. Q. That register does' not show 234 in, does it? A. No, sir, it does not show 234 in. Let me see that-book again (Witness examines the book referred to). No, sir. Q. Now when you passed Oswego or before leaving Oswego, did you get any card or check from the conductor? A. No, sir. Q. Why not? A. I was in the depot for a drink of water and the conductor asked me if I would check the register while there with him. Q. I will ask you whether or not you were familiar at that time with the rule 83' (b) which reads as follows: ‘Enginemen, before leaving register stations, except the initial point of their run, will require from the conductor a memorandum on prescribed form showing the numbers of all superior trains, and stating he has checked the register and that they have all arrived or departed, as the case may be.’ Were you familiar with the rule? A. Tes. Q. You did not require that from him, did you? A. No, sir, I was there and checked in person with him. Q. If you have an order which gives another train superior right over you, have you any right to leave the station because the conductor waves you to go ahead? A. No, sir. Q. The rules specifically provide that, don’t they? A. Yes, sir. Q. And to get this clearly before the jury your present position is that you had that order in mind, that you remembered it, but notwithstanding that you treated it as a meaningless and ineffective and inoperative order and you proceeded upon that single track from Oswego to Cook? A. Yes. Q. You had had your usual rest and all the night before, hadn’t you, Mr. Davis? A. Yes, sir. Q. And at the time of this collision you had only been on duty for about an hour or two? A. Yes. Q. And the only other order that you had was this one about No. 16 which applied only for a couple of miles? A. Yes. Q. After that you had no orders except this inoperative and ineffective order? A. No, sir. Q. And there wasn’t any train that you had to meet for several hours, was there? A. No, sir.”

That the plaintiff did understand the meaning and effect of this order clearly appears from the admissions contained in the above testimony. Knowing that his disobedience might cost the lives of others and injury or death to himself, he neither sought nor asked for an explanation of the order, as he certainly would have done if he had had any doubt or uncertainty as to its meaning. If any doubt of the meaning of the order had existed the plaintiff had an opportunity to ask and obtain from the train dispatcher a full explanation of its meaning both at Wilsonia and later at Oswego. As to this he testified: “After oiling and loosening up we pulled out of there into Wilsonia, we stopped, called up the dispatcher and were told to remain there until No. 355 went by, which we did, and being in the yard limit we were able to follow No. 355, under control, to the depot at Oswego.” At Oswego there was a telegraph operator, and plaintiff testified that he waited at the depot there for ten minutes before starting for Oook. Plaintiff thus had every opportunity at his command to ask for and obtain any explanation necessary for a complete understanding upon his part of the meaning of this order.

The conductor of train No. 234 was called and testified: “Q. I wish you would state to the jury whether or not you received any order known as order No. 226 at Beaverton or elsewhere that morning? A. I received the order at Beaverton giving me right of way over No. 231 to Oswego. Q. Giving your train right of way over No. 231 to Oswego? A. Yes. Q. Did your engineer, Mr. W. W. Knight know of that order? A. Yes. Q. You tell the jury whether you proceeded under that order. A. It gave us right to go to Oswego over No. 231, that was our understanding. The Court: Did you proceed under that order? A. Yes. Q. And what did you do under that order? A. We started to run from Beaverton to Oswego. Q. You went from Beaverton to Oswego? A. Yes, sir. Q. And where did you meet this train of Walter Davis, No. 231? A. In the cut about half a mile this side of Oswego, or a mile, or something like that. Q. Between Cook and Oswego? A. Yes. Q. Where is engineer W. W. Knight of your train? A. Dead. Q. What happened to W. W. Knight in that collision? Mr. Sheppard: That don’t tend to prove any issue in this case. The Court: No, he is dead, did he die from the effects of that collision? A. As far as I know he was instantly killed. The Court: He was killed right there? A. Yes. The Court: That ends it. Q. You yourself were injured, were you not? A. Yes. Q. I wish you would state to the jury whether you or Mr. Knight, as far as yon know, had any question about this order, order No. 226, whether it was meaningless or ineffective or inoperative in your interpretation of it. A. As near as I remember I showed him the order and his understanding was the same as mine, that we would go to Oswego for No. 231. I don’t remember whether there was any other conversation or not. Q. Will you state to the jury whether or not that was a right of way order or a meet order or a wait order? A. That was a right of track order. ’ ’

Considerable stress is laid upon the fact that the division examiner of the defendant testified that the insertion of the words “Beaverton to Oswego” instead of “Cook to Oswego” was technically a violation of rule No. 201. But what possible difference in the information conveyed or in the duties imposed could have resulted to the plaintiff if, instead of reading as it did, the order had read: “Train No. 234, after reaching Cook from Beaverton, has right of way over train No. 231, Cook to Oswego,” or “Train No. 234 has right of way over train No. 231 Cook to Oswego?” Plaintiff’s admitted knowledge of and familiarity with the lines and stations involved here were such that no reasonable inference could be drawn by the jury from the testimony that the plaintiff was misled or could be misled by anything contained in the order, and therefore the manner in which the order was worded did not contribute to plaintiff’s injury.

It appears from plaintiff’s testimony that when approaching the station at Oswego he signaled the operator for the train order semaphore signal, and that the operator dropped the semaphore bar. It is contended that this signal by the operator gave plaintiff a clear track to Cook- and the right to proceed with his train from Oswego to Cook. This contention has no merit. The dropping of the bar by the dispatcher could give him no right to proceed contrary to orders previously received. The only effect of this signal was to inform him that the dispatcher at Oswego had no order in his hands for the conductor and engineer of the train. The signal given by the operator did not supersede or in any way change or modify the effect of the order previously given. That plaintiff was fully aware of this fact is shown by his own testimony, on direct examination, as follows: “Q. When you got to Oswego did the operator there have any duty to perform? A. We approached the depot and called for the train order semaphore signal and it was cleared to us, showing that there were no orders on the table for us.” Again he testified: “Coming into Oswego, — the train order semaphore was against us and I called for the train order semaphore signal with the four blasts of the whistle, which is the rule and received the signal, which is done by the operator dropping it in an inclined position, which clears us, clears the board and shows that he has no orders for us.” The order previously given- could only be revoked by a subsequent order, and when the operator signaled that he had no order for train No. 231, plaintiff knew that the previous order had not been revoked, countermanded or superseded.

It is insisted that plaintiff is entitled to recover because just before plaintiff pulled the train out of Oswego, the conductor gave him the signal to proceed. Train order No. 226 applied to the conductor of the train as well as to the engineer. It was addressed to both, and it was the duty of both to observe it. The conductor had no authority to violate the order nor to direct the engineer to violate it. Both knew that it was binding on both of them and that that neither one had authority to direct the other to disregard it. In this contention, the plaintiff testified: “Q. Now, if you have an order which, gives another train superior right over you, have you any right to leave the station because the conductor waves you to go ahead? A. No, sir. Q. The rules specifically provide that, don’t they? A. Yes, sir.” It is contended that because trains are started invariably upon a signal from the conductor to the engineer, that the jury had the right to assume in this case that the engineer was justified in violating his order and starting his train upon the signal of the conductor. This contention overlooks the fact that although it is the duty of the engineer to obey the signal of the conductor in starting the movement of his train in cases where the movement signaled for is not in violation of a train order or rule, nevertheless, under rule No. 906, it is the duty of the engineer in all cases not to start his train in violation of a train order. That plaintiff well understood this rule and recognized his duty thereunder is apparent from the testimony above quoted. When signaled by the conductor to proceed from Oswego to Cook, it was his duty to refuse to obey the signal, and his compliance with a signal that, at the time, he knew the conductor had no authority to give, and that as engineer he had no right to obey, ought not to confer upon him a right to recover damages sustained solely by reason of his conscious violation of the rules of his employer.

It is contended that it was negligence for the train-dispatcher to give the train crew of train No. 231 a right of track order instead of giving a meet order or a wait order. The rules provide that an order may be given in any one of these three forms, and each have a well defined and perfectly understood effect and meaning. The carrier may, therefore, lawfully give any one of these three orders as the circumstances of the case may require. There is no evidence in the case of any fact from which it could fairly be inferred that the train-dispatcher in giving train order No. 226 did not give a proper order or that a right of track order was not the kind of an order which the circumstances then existing demanded, and for that reason there is no merit in this contention.

It is also contended that a copy of this right of track order should have been sent by the dispatcher to the operator at Oswego and should have been again delivered at that point to the conductor and engineer of train No. 231. The rules provide that where a meet order or a wait order is given a copy of the order is sent to the operator at the meeting or waiting point, while in the case of a right of track order the rules do not require a copy of the order to he given to anyone except the conductor and engineer of the crews affected by the order. The rules are standard rules; and there was nothing in the testimony tending to show that it was the duty of the carrier to do anything more than to comply with their directions. Train order No. 226 was given to the plaintiff less than two hours before plaintiff sustained the injury complained of, and his own testimony shows that his refusal to obey the order was the direct and proximate cause of his injury. He testified that he remembered the order and had it in mind when leaving Oswego. Therefore no reason could exist for giving him the same order twice. This contention seems to be based upon the theory that it was the carrier’s duty to keep the plaintiff advised of the train movements of train No. 234, and that the plaintiff had the right to disregard this or any other train order, unless he was constantly kept advised of the whereabouts of the other train. Plaintiff, having been notified that train No. 234 had a superior right over his train between the stations of Oswego and Cook, it was his duty to remain at Oswego until the arrival of the superior train and the carrier was under no obligation to repeat the order at Oswego or to inform him when the superior train left Cook.

It was argued that plaintiff’s train, while at Wilsonia, was directed by the train-dispatcher to follow another train, and that on account of this direction the plaintiff was justified in starting to move his train to Oswego. There is neither allegation nor proof to support this contention. The only proof bearing upon this matter at all is plaintiff’s testimony as follows: “It comes in here at Wilsonia. It is the rules for all trains before entering this point of tract here to call up the dispatcher and get permission to proceed or stay at this point until such time as the dispatcher gives you the authority to move, — which we did in this case this morning,— stopped there, called up, and he said ‘Follow No. 355’ which was one of the fast red trains which go up Fourth Street here to' points beyond where we were. Half a mile beyond Wilsonia is Oswego, where there is a day and night telegraph office, train register, and train order signal semaphore, and also terminal point for suburban trains. * * After oiling and loosening up we pulled out of there on to Wilsonia, we stopped, called up the dispatcher and were told to remain there until No. 355 went by, which we did, and being in the yard limit we were able to follow No. 355, under control, to the depot at Oswego.” This testimony wholly fails to show that plaintiff was directed to follow train No. 355 beyond Oswego. The distance from Wilsonia to Oswego is about one half of a mile. Plaintiff nowhere in his testimony pretends that he started from Oswego to Cook on account of any directions given while his train was at Wilsonia, but bases his right to move from Oswego on the sole ground that train order No. 226 was inoperative and void.

The only testimony offered on behalf of the plaintiff was his own testimony. No other member of the train crew of train No. 231 was called or testified except the conductor, who was called by the defendant, and he testified to nothing except that he was the conductor of that train, that he was discharged by the company, and that he was subpoenaed, but not called by the plaintiff. The only explanation of plaintiff’s starting from Oswego to Cook is that contained in plaintiff’s own testimony. Whether or not plaintiff and the other members of the train crew believed at the time they left Oswego that they could reach Cook before train No. 234 proceeded on its way from Cook to Oswego, it is impossible to say from the record. That would seem to be the only reasonable conclusion for plaintiff’s conduct, although there is no testimony from which that deduction can be drawn. The burden of proving negligence upon the part of the defendant rested with the plaintiff, and if there was any negligence, which in any way contributed to plaintiff’s injury, on the part of any member of the train crew other than the plaintiff, plaintiff has wholly failed to establish it. The only thing done by any member of the train crew which the plaintiff himself did not' do, so far as the testimony discloses, was the giving by the conductor of the signal to proceed from Oswego. The fact that the conductor and the other members of the train crew participated with plaintiff in the violation of the directions given by train order No. 226 is not sufficient in law to establish negligence upon defendant’s part. It was the duty of every member of that crew to obey this order, and the fact that all of them refused to do so ought not, and, in our opinion, does not amount to negligence upon the part of the carrier any more than it would if the engineer himself had been the only member of the crew on the train operating it beyond Oswego. The plaintiff was charged with the primary responsibility of moving the train, and it was his hand alone that moved the train from Oswego to the place of the wreck. In doing this he violated train order No. 226 and rules No. 83 (b) and No. 906. He had no right to leave Oswego until he had received a memorándum from the conductor showing that all superior trains had arrived, and it was his duty to refuse to start when signaled by the conductor, and it was his own act, and his own act alone, which produced the injury he complains of. According to his own testimony his conduct was willful, deliberate and intentional, and he offers no excuse or justification for his conduct. He brought about the death of the engineer of train No. 234, who was rightfully proceeding from Cook to Oswego, and who was acting in strict conformity to train order No. 226. To hold that Congress intended, by the federal Employers’ Liability Act, under the circumstances disclosed in this case, to penalize the carrier and to reward the disobedient employee with a judgment against the carrier or $25,000 is unthinkable, and until such a construction is placed upon that act by the federal courts, this court ought not to uphold this judgment.

Viewing this situation, as presented by the testimony of the plaintiff, in the most favorable light possible for the plaintiff, and assuming that all of plaintiff’s train crew consented to his violation of the order and rules of the carrier, and assisted him in operating the train from Oswego to the scene of the wreck, the most that can be claimed for it is that although they were all acting in concert, nevertheless none of the others did any separate negligent act or omitted to do any act which can be imputed to the defendant as the negligence of the defendant, or which, in any way, contributed to the injury sustained by the plaintiff. If all of the train crew, except the plaintiff, had left the train at Oswego, the acts performed by the plaintiff alone, as shown by his own testimony, would have brought about the collision and the consequent damage.

The defendant had the right to promulgate this order to its train crew and to demand implicit obedience from each and every member of that crew. The concerted action of all or any member of the train crew, in disregarding the command of the employer, should not be imputable to the defendant as the negligence of the defendant in an action against it brought by a member of the crew for injury resulting solely from his own disobedience or his disobedience in concert with others. In a case where two or more railroad employees, acting in concert, do an act intentionally in known violation of their duty, without any concurring act of negligence on the part of the carrier or of any agent, servant or employee of the carrier, except those actually engaged in the doing of the concerted act, what possible justification in law can there be for holding that the company is liable for an injury to one of them merely because the doing of the concerted act by all was participated in by more than one person, when, under the same circumstances, the company would not be liable if the act had been done by the injured employee alone.

We are unable to find any authority for holding that the carrier is liable under circumstances similar to those disclosed by the testimony of the plaintiff. If the evidence in this case had disclosed that some one or more of plaintiff’s train crew had done some separate and independent act, which, in any way, contributed or co-operated to bring about plaintiff’s injury, or if it had been shown that the defendant had violated any statute enacted for the safety of employees, which, in any way, contributed to the injury. of the plaintiff, or that the injury had resulted in whole or in part by reason of any defect or insufficiency in the property or equipment of the road due to the negligence of the defendant, then the plaintiff would clearly be entitled to recover under the federal Employers’ Liability Act, but, under the circumstances disclosed, we are of the opinion that the plaintiff is not entitled to recover.

We, therefore, conclude that when two or more railroad employees act in concert and none of them do any act except that which every other one intends that he shall do, and injury results to one or more of them from the combined act of all, and the doing of the combined act was known by all of them to be wrongful or in disregard of a known duty or in violation of a positive order of the carrier, and was not in obedience to an order of a superior, none of the parties so acting are entitled to recover under the federal Employers’ Liability Act, when the doing by them of the act is the sole proximate cause of the injury and no concurring negligent act or omission of the carrier or of some other agent, servant or employee of the carrier in any way contributed to bring about the injury.

Plaintiff relies upon the case of Spokane & I. E. R. Co. v. Campbell, 241 U. S. 497 (60 L. Ed. 1125, 36 Sup. Ct. Rep. 683), as an authority to support his right of recovery, but a careful reading of the opinion in that ease will disclose that the issues involved, and under consideration there, were so dissimilar to those involved here, that the principles there announced are wholly inapplicable to the admitted facts in this case. In that case, Campbell, the plaintiff in the court below, was the motorman in charge of a special train running between Spokane and Coeur d’Alene. The discussion in that case arose largely from the fact that the jury returned a general verdict in favor of the plaintiff and made three special findings in writing as follows: “(1) That Campbell, before leaving Coeur d’Alene received a train order reading as follows: ‘Motor 5 will run Spl. C. d’Alene to Spokane, meet special 4 east at Alan’; (2) that the air brakes on Campbell’s train immediately before the collision were insufficient to enable him to control the speed of the train; (3) that Campbell’s leaving Coeur d’Alene in violation of his orders was the proximate cause of the accident.”

It will be noticed that the second special finding established that the air-brakes on Campbell’s train were insufficient to enable him to control the speed of his train, and the evidence disclosed that Campbell saw the train with which he came into collision, causing his injury, at a distance of eight hundred feet from the place where the collision occurred, and could have stopped his train if his air-brakes had worked properly, and that the other train had been stopped and was standing still at the time of the collision. These facts were sufficient to entitle him, to recover, regardless of whether he was acting in violation of his order or otherwise, as the concurring negligence of the carrier in not supplying him with efficient air-brakes, if not the sole proximate cause of his injury, contributed to his injury. And in that connection, that court said:

“It is too plain for argument that under this legislation the violation of the safety appliance act need not be the sole efficient cause, in order that an action may lie. The Circuit Court of Appeals (133 C. C. A. 370, 217 Fed. 524) held that the element of proximate cause is eliminated where concurring acts of the employer and employee contribute to the injury or death of the employee. We agree with this, except that we find it unnecessary to say the effect of the statute is wholly to eliminate the question of approximate cause. But where, as in this case, plaintiff’s contributory neglig’ence and defendant’s violation of a provision of the safety appliance act are concurring proximate causes, it is plain that the Employers’ Liability Act requires the former to be disregarded.”

That part of the opinion upon which the plaintiff in this ease relies was based solely upon the contention of the carrier to the effect that Campbell was not in the course of his employment when injured, and to show how inapplicable that case is to this, we quote that part so relied upon by the plaintiff:

“It is most earnestly insisted that the findings established that Campbell was not in the course of his employment when he was injured, and consequently that judgment could not properly be entered in his favor upon the cause of action established by the general verdict. This invokes the doctrine that where an employee voluntarily and without necessity g*rowing out of his work abandons the employment and steps entirely aside from the line of his duty, he suspends the relation of employer and employee, and puts himself in the attitude of a stranger or a licensee. The cases cited are those where an employee intentionally has gone outside of the scope of his employment, or departed from the place of duty. The present case is not of that character; for Campbell, as the jury might and presumably did find, had no thought of stepping aside from the line of his duty. From the fact that he disregarded and in effect violated the order as actually communicated to him, it, of course, does not necessarily follow that he did this willfully. The jury was not bound to presume — it would hardly be reasonable to presume— that he deliberately and intentionally ran his train out upon a single track on which he knew an incoming train with superior rights was then due. However plain Ms mistake, the jury reasonably might find it to be no more than a mistake attributable to mental aberration, or inattention, or failure for some other reason to apprehend or comprehend the order communicated' to him. In its legal effect this was nothing more than negligence on his part, and not a departure from the course of his employment. To hold otherwise would have startling consequences. The running of trains on telegraphic orders is an everyday occurrence on every railroad in the country. Thousands of cases occur every day and every night where a failure by conductor or engineer to comprehend or to remember the message of the train dispatcher may endanger the lives of employees and passengers. We are not aware that in any case it has been seriously contended that because an engineer violated the orders, he went outside of the scope of his employment. If he did so, in the sense of absolving the employer from the duty of exercising’ care for his safety, it is not easy to see upon what principle the employers’ liability to passengers or to fellow employees for the consequences of his negligence could be maintained. The unsoundness of the contention is so apparent that further discussion is unnecessary.”

In that case there were two concurring causes contributing to Campbell’s injury. His running the train in violation of orders was one. His train being eqmpped with defective air-brakes was the other. Because of the defective air-brakes he was prevented from stopping his train when he saw the other train approaching from the opposite direction, as he could have done, thereby saving himself from injury if the carrier had been negligent in equipping Ms train with defective air-brakes.

Another case relied upon by the plaintiff is that of Illinois Central R. R. Co. v. Skaggs, 240 U. S. 66 (60 L. Ed. 528, 36 Sup. Ct. Rep. 249, see, also, Rose’s U. S. Notes). In that case it was claimed that Skaggs could not recover for the reason that the injury resulted from his own act or from an act in which he participated. In disposing of this contention, among other things, the court said:

“It may be taken for granted that the statute does not contemplate a recovery by an employee for the consequences of action exclusively his own. # * But, on the other hand, it cannot be said that there can be no recovery simply because the injured employee participated in the act which caused the injury.

“We think that the argument for the plaintiff in error overlooks the inferences of fact which the jury was entitled to draw. Thus, the jury could properly regard the two brakemen as assisting each other in the movement in question. Such assistance was certainly appropriate, if not absolutely necessary. The very purpose of having' two brakemen was not to put upon either the entire responsibility. Working together under the exigencies of such operations, particularly when conducted in the night time, it was manifestly contemplated that the one brakeman would supplement the other, and not be compelled, at the peril of his rights, personally to examine what the other did, or the basis of the reports the other gave. Bach had a reasonable latitude in relying upon the statements of the other, made in the course of the operation and as a part of it. The Supreme Court of the .state said: ‘It was a very dark night, and evidently there was necessity for haste. If plaintiff’s story is true, Buchta was in a position to know about clearance, while plaintiff was not; and we are unable to say plaintiff had not the right to rely upon his statement in regard thereto.’ (124 Minn. 506, 145 N. W. 381.) In this we find no error. When the engine was uncoupled,. Skaggs was on the right-hand side — the side of the passing track — a better place to judge the clearance. The fact that Skaggs asked his questions is itself not without significance. These questions indicated doubt on Skagg’s part, while Buchta’s reply showed certainty on his. It was plainly permissible to infer from the testimony that the two men were not in positions of equal advantage, and Skaggs was entitled to the exercise of reasonable care on the part of Buchta in observing and reporting the position of the cars. As there was evidence upon which it could be found that Buchta was negligent, and that thereby injury resulted to Skaggs, it cannot be said that the recovery in this aspect of the case was contrary to the statute.”

The determining facts in that case were that there were two brakemen working together but on opposite sides of the train; that the two brakemen were not in position of equal advantage, and that the one injured was entitled to the exercise of reasonable care on the part of the other brakeman in observing and reporting to him the position of the cars, which ears, on account of their being so close to another track, caused plaintiff’s injury; that Skaggs, the injured brakeman, was at the time of the injury relying upon a condition which the other brakeman had informed him was free from danger, and that although both were negligent and the injury resulted from such negligence, the plaintiff was not compelled, at the peril of his rights, personally to examine what the other did, and that he had the right to rely upon the statement of the other as to the position in which the cars were at the time of the injury. There is so striking a dissimilarity of facts in that case to the facts in this case that, we think, that decision is not applicable to the questions involved in the present case.

In the case of Union Pacific R. Co. v. Hadley, 246 U.S. 330 (62 L. Ed. 751, 38 Sup. Ct. Rep. 318), the third case relied upon by the plaintiff, it was contended by the railroad company “that it was not negligent” and “that the deceased brakeman would not have been killed if lie bad done bis duty and bad gone back to warn tbe following train instead of remaining in tbe caboose as be did, and that this was the proximate cause of his death.”

It is unnecessary to quote at length from the opinion, but the court disposed of the contention by deciding that the defendant company was negligent, and that the death of the deceased brakeman resulted in part from tbe negligence of defendant’s employees. The following sentence taken from tbe opinion will show that that court held' the railroad company to be negligent: “It (tbe railroad company) ran one train into another when, if it had done its duty, neither train would have been at that place.” The running of one train into another, causing the death of the deceased brakeman, was negligence on the part of the defendant company. Therefore, although the deceased brakeman himself was negligent, his contributory negligence did not bar a recovery for his death, which would not have occurred if the defendant company had not negligently run another train into his. The case is therefore not in point.

"We think the facts bring this case within the rule followed in the case of Virginian Ry. Co. v. Linkous, 230 Fed. 88 (144 C. C. A. 386). That action was brought under the federal Employers’ Liability Act to recover damages for the death of plaintiff’s intestate, an engineer of a coal train. The engineer and the conductor bad received an order to meet and pass another train at Keever. Instead of stopping the train at Keever, as directed, tbe engineer, with tbe conductor, the front brakeman and fireman, all riding on the engine, proceeded at full speed for a distance beyond Keever, where their train collided with the train that they had been ordered to meet and pass at Keever. All four of them were killed in the collision. Copies of the order were found in the pockets of the engineer and of the conductor. Plaintiff had judgment, but upon appeal, the Circuit Court of Appeals reversed the judgment, and, among other things, said:

“It is insisted by counsel for plaintiff in the case at bar that plaintiff’s decedent lost his life ‘as a result of a combined mutual, concurring, and joint failure of these four men to fulfill their primary duty by executing the order to meet No. 33 according to its terms and as prescribed by the defendant’s rules, which was the controlling and proximate cause of the collision.’ * * While the Employers’ Liability Act was manifestly intended to modify the law as it formerly existed so as to materially benefit those who might be injured in the future, by abolishing the harsh rule known as the ‘Fellow-Servant Doctrine,’ yet it cannot be reasonably insisted that it was the purpose of the act to afford relief where one’s injury is due solely to his own reckless and indifferent conduct. After an exhaustive examination of the authorities cited we find nothing to support the contentions of the plaintiff. Under the circumstances the jury could not reasonably have drawn any other inference than that the other employees were not in any degree primarily responsible for the accident. Such being the case, we are of opinion that the jury was not warranted in reaching the conclusion that plaintiff’s decedent’s death resulted in whole or in part from the negligence of the employees of the defendant.”

After an argument upon rehearing, the court adhered to its former opinion: 235 Fed. 49 (148 C. C. A. 543). As stated by Mr. Eoberts in 1 Eoberts’ Federal Liability of Carriers, Section 547: “It is not the purpose of the statute to afford relief where one’s injury is due solely to his own reckless and indifferent conduct.” And in his discussion of the case of Virginian Ry. Co. v. Linkous, supra, that author says:

“The engineer disregarded the dispatcher’s orders for the meeting point apparently with the full knowledge of the other members of the crew as the conductor and the head brakeman were riding on the engine, and copies of the train orders as to the meeting point were found on the persons of the engineer and the conductor when their bodies were removed from the wreck.”

In Kendrich v. Chicago, E. & I. R. Co., 188 Ill. App. 172, plaintiff’s intestate, an engineer, was killed while running an engine and train at high .speed over a point in the road where he had been warned that the track was rough and was ordered to reduce the speed of his train to ten miles an hour. In that case the court said: “He knew of the danger arising from the roughness of the track and when he, in disobedience of his orders, negligently and recklessly approached said place at a speed of between sixty and seventy miles an hour and ran over it at a speed of forty-five miles an hour, he assumed the risk and hazard of so doing.”

In Ellis’ Admr. v. Louisville etc. Ry. Co., 155 Ky. 745 (160 S. W. 512), plaintiff’s intestate, a flagman of a work train, was sent out to flag trains west of a bridge under repair. It was his duty to flag eastbound trains. He was run over and killed by a westbound train. In that case the court said:

“When a flagman is sent out to watch for trains and warn them of danger, the company and its trainmen have a right to presume that he will not only watch for trains, but also for his own safety, and his failure to do this is his own negligence, and he cannot recover of the company for an injury which he received by reason of his neglect, unless his presence and peril were discovered by those in charge of the train in time to avoid striking Mm, by tbe exercise of ordinary care.”

In Great Northern R. Co. v. Wiles, 240 U. S. 444 (60 L. Ed. 732, 36 Sup. Ct. Rep. 406), plaintiff’s intestate was a rear brakeman on a freight train which bad broken in two, due to a draw-bar pulling out of one of tbe cars, causing tbe train to stop instantly. It was bis duty to immediately go back and protect tbe rear of Ms train. Instead of performing that duty be remained in tbe caboose where be and tbe conductor were both killed by a following fast passenger train, of which be bad notice, running into bis caboose. Tbe night was dark, and at tbe place of tbe collision tbe track was obstructed by a very sharp curve and a bluff, preventing tbe rear end of tbe freight train from being seen more than five box-car lengths away. Tbe engineer of tbe passenger train did not know of tbe existence of tbe freight train ahead and no negligence was attributable to him. Tbe opinion states: “What caused tbe pulling out of tbe draw-bar, was not shown, nor was there any proof that it was defective or that tbe company was negligent in tbe care or use of it.” Tbe conclusion of tbe court is stated in the opinion as follows:

“There is no justification for a comparison of negligences or the apportioning of their effect. Tbe pulling out of tbe draw-bar produced a condition which demanded an instant performance of duty by "Wiles,— a duty not only to himself, but to others. Tbe rules of tbe company were devised for such condition and provided for its emergency. Wiles knew them, and be was prompted to tbe performance of tbe duty they enjoined (tbe circumstances would seem to have needed no prompting) by signals from tbe engineer when tbe train stopped. He disregarded both. His fate gives pause to blame, but we cannot help pointing out that the tragedy of tbe collision might have been appalling. He brought death to himself and to the conductor of his train. His neglect might have extended the catastrophe to the destruction of passengers in the colliding train. How imperative his duty was is manifest. To excuse its neglect in any way would cast immeasurable liability upon the railroads, and, what is of greater concern, remove security from the lives of those who travel upon them; and therefore all who are concerned with their operation, however high or low in function, should have a full and anxious sense of responsibility.

“In the present case there was nothing to extenuate Wiles’s negligence; there was nothing to confuse his judgment or cause hesitation. His duty was as clear as its performance was easy. He knew the danger of the situation and that it was imminent; to avert it he had only to descend from his train, run back a short distance, and give the signals that the rules directed.”

In the case of Ingram v. Atlantic Coast Line R. Co., 181 N. C. 491 (106 S. E. 565), plaintiff’s intestate, a brakeman, was killed by being crushed between the engine and cars left by him on a storage track without sufficient clearance between the cars so left and the track on which the engine was backing, while he was riding on the tender and giving signals to the engineer as to the movement of the engine. It was held that as his death “was caused solely by the failure on his part to perform the duty which had been intrusted to him alone” a recovery cannot be sustained under the Employers’ Liability Act. In that case the court distinguished that case from the case of Railroad v. Skaggs, 240 U. S. 66 (36 Sup. Ct. Rep. 249), as follows:

“In Railroad v. Skaggs, 240 U. S. 66 (36 Sup. Ct. 249, 60 L. Ed. 528), an authority relied upon by the plaintiff, the plaintiff, a brakeman, was crushed between two cars because one had been left too near the track, and a recovery was sustained, but upon the ground that there was another brakeman connected with him in the operation of the train, and that the evidence supported the contention of the plaintiff that his injury resulted from the negligence of a fellow-servant, but the court says in the course of, the opinion: ‘The statute does not contemplate a recovery by an employee for the consequences of action exclusively his own.’ ”

Where the injury is solely the result of the employee’s negligence, there can be no recovery under the federal Employers’ Liability Act: Great Northern R. Co. v. Wiles, 240 U. S. 444 (60 L. Ed. 732, 36 Sup. Ct. Rep. 406, see, also, Rose’s U. S. Notes); Grand-Trunk W. R. Co. v. Lindsay, 233 U. S. 42 (Ann. Cas. 1914C, 168, 58 L. Ed. 838, 34 Sup. Ct. Rep. 581); Illinois Central R. Co. v. Skaggs, supra; Virginian R. Co. v. Linkous, supra; Ellis’ Admr. v. Louisville etc. Co., supra; Pankey v. Atchison T. & S. etc. Co., 180 Mo. App. 185 (168 S. W. 274); Fitzpatrick v. Hines, 105 Neb. 134 (179 N. W. 410).

Here the plaintiff’s own act, under the testimony, was the sole cause of the injury. It was his act alone that brought about the resultant danger and the consequent damage. His violation of the order was willful and intentional. It was done knowingly, and this was the sole, direct and proximate cause of his injury. There was no intervening or concurrent act of negligence shown on the part of the carrier that in any way produced the injury complained of or contributed to bring it about. He himself created the condition which brought about the danger. No other member of the train crew did any independent act upon which he had a right to rely as a justification for his violation of the order, and it is no answer to say that because the other members of the train crew co-operated or participated with him in operating the train in violation of the orders of the company, that their participation with him in the violation of an order that they were all bound to obey, was the negligence of the carrier. Having brought about this dangerous condition and the resultant damage to himself, he assumed the risk and is not entitled to recover: Baugham v. New York P. & N. R. Co., 241 U. S. 237 (60 L. Ed. 977, 36 Sup. Ct. Rep. 592); Jacobs v. Southern R. Co., 241 U. S. 229 (60 L. Ed. 970, 36 Sup. Ct. Rep. 588).

In order for plaintiff to recover in this action, it was necessary for the plaintiff to show that some negligent act or omission by some officer, agent or employee of the carrier co-operated or contributed in some way to bring about the injury complained of. As the plaintiff has wholly failed to show any such negligent act or omission, the judgment should be reversed and a judgment entered in favor of the defendant, and it is so ordered.

Reversed and Judgment Entered.

Burnett and McCourt, JJ., concur.