McBRIDE, C. J.
1. There are several assignments of error, but the principal contention centers upon the court’s refusal to grant a nonsuit, or direct a verdict, on the alleged ground that there was no evidence tending to show negligence on the part of the employees of defendant, who were in charge of train 2140. As a preliminary to the discussion, we may call attention to Section 3 of Article "VII of the Constitution, which, as now amended, provides that,—
“No fact tried by a jury shall'be otherwise reexamined in any court of this state, unless the court-can affirmatively say there is no evidence to support the verdict.”
We have frequently held that we are precluded by this section from considering the weight of evidence, where there is any substantial testimony to support the verdict, and in the present case we shall only consider the testimony of plaintiff, with a view of ascertaining whether there is such testimony shown in the record.
[168]*1682. Again, this being an action under the Federal Employers’ Liability Act it follows from the terms of the act, that if there is evidence of negligence on the part of the defendant, which contributed to the injury, we cannot consider the question of contributory negligence on the part of the plaintiff. Such contributory negligence going only to the question of damages, concerning which phase of the case no fault is found with the instructions given at the trial: Stool v. Southern Pacific Co., 88 Or. 350 (172 Pac. 101).
3t5. It is a fact not disputed, when 2140 arrived at the home signal it indicated that a train was within the block a short distance ahead, and was, therefore, a warning of danger, and indicated to those in charge of that train the necessity of proceeding cautiously and under such control, which would seem necessary, in view of the circumstances, to prevent a collision with the train within the block. Under these circumstances the rules of the company made it the duty of those in charge of 2140 to stop for five minutes and proceed under control at . a speed not exceeding six miles an hour. The testimony of defendant in regard to the rate of speed actually made does not assume accuracy, but is to the effect that the train proceeded at about six miles an hour, but for the purposes of this discussion it may be assumed that the actual speed was six miles an hour, and it is assumed in defendant’s argument that if this was the case the train was “proceeding under control” within the meaning of the rule; but this is a mere assumption not justified by the language of the rule. The words “under control” mean,' “to be able to stop within the distance the track is séen to be clear.” The words “not to exceed six miles an hour” are words of limitation, and if a lower rate of speed is necessary to enable those in charge [169]*169of the train to observe whether the track is clear ahead, and to' stop in time to avoid a collision, the train is not under control until its speed is reduced to that minimum. Therefore, if the circumstances— darkness or want of a headlight on the tank — rendered it impossible to see objects on the track ahead, and to stop in time to avoid them, while running at the rate of six miles an hour, it was the duty of those in charge of the train to run at such reduced speed as would seem reasonably sufficient to enable them to do so, and a failure to so control the speed would be negligence.
The question as to whether or not the tail lights on 255 were burning was for the jury. McClure, the conductor of 255, testified that they were burning at Camp, less than two miles from North Fork. It is possible, but not at all probable, that they had all gone out in the short time that elapsed between the time McClure observed them and the time of the collision. That one of these lights might be burned or jarred out, is possible, but thajfc all three should expire simultaneously, is not within the bounds of probability. It is true the testimony of the conductor of 2140 indicates that they were not burning, but it should be remembered that he is a witness having a great interest at stake. If the lights were burning and he failed to observe them, it would indicate a negligence on his part that places the responsibility for the accident, and Fuller’s death in consequence of it, upon his shoulders; and he naturally might be inclined to shield himself and color his testimony. The foregoing does not indicate the writer’s view of the testimony, but it is an aspect of the case which might reasonably appeal to a trier of the facts, and a jury might reasonably weigh his testimony, in view of his connection with the accident, against the strong [170]*170probabilities against its accuracy developed by Mr. McClure’s testimony, and legitimately come to the conclusion that the preponderance of the evidence indicated that the lights were burning when the accident occurred.
Conceding, however, for the purposes of the discussion, that -the tail lights on 255 had been extinguished, although this seems improbable, there was still some evidence introduced by the plaintiff which tended to show that there was natural light sufficient to have enabled those in charge of 2140 to have observed the caboose of 255, and stopped in time to avoid the collision, if they had observed a cautious outlook. As shown in the statement, the witness Hoskins testified that daylight was breaking and that he was able to discern objects, such as a man or a car, at a distance of 200 or 300 feet; and this is borne out by the natural conditions shown by the almanac, and of-which the court takes judicial notice without proof.
One witness, L. F. Spoar, who testified he had had fourteen years’ experience as a locomotive’engineer, testified that under the track conditions existing from the east end of the bridge at North Fork to 300 feet beyond, 2140 could have been stopped within about 75 feet. Now take this testimony in connection with the testimony of Hoskins, that it was light enough to have seen a car 200 feet, and we have evidence indicating, that with proper lookout, those in charge of 2140, had an opportunity to have seen the caboose of 255 and to have stopped their locomotive in time to have averted the accident, even if they were running six miles an hour.
These facts were sufficient to take the case to the jury upon the question of negligence of the defendant.
6. It is not clear from the testimony exactly what [171]*171was meant by the statement that Fuller had agreed with Chapin to flag 2140 into North Fork. It is evident there was no understanding that he would flag them in until his own train “was in the clear.” He had not agreed to flag them against his own train but against No. 4. That is to say, that when 255 had got upon the passing track with room left for 2140, Fuller would flag against No. 4 so that 2140 could safely follow in upon the passing track. This seems the probable meaning of the agreement, as we understand the testimony.
Now as to Fuller’s duty to flag under Rule 99, the rule, as quoted in the statement, does not absolutely require a flagman to go back with stop signals every time the train stops, and everyone who is accustomed to railway travel, knows it is not done. It is only “when a train stops or is delayed under circumstances in which it may be overtaken by another train” that the flagman is required to go back and flag.
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McBRIDE, C. J.
1. There are several assignments of error, but the principal contention centers upon the court’s refusal to grant a nonsuit, or direct a verdict, on the alleged ground that there was no evidence tending to show negligence on the part of the employees of defendant, who were in charge of train 2140. As a preliminary to the discussion, we may call attention to Section 3 of Article "VII of the Constitution, which, as now amended, provides that,—
“No fact tried by a jury shall'be otherwise reexamined in any court of this state, unless the court-can affirmatively say there is no evidence to support the verdict.”
We have frequently held that we are precluded by this section from considering the weight of evidence, where there is any substantial testimony to support the verdict, and in the present case we shall only consider the testimony of plaintiff, with a view of ascertaining whether there is such testimony shown in the record.
[168]*1682. Again, this being an action under the Federal Employers’ Liability Act it follows from the terms of the act, that if there is evidence of negligence on the part of the defendant, which contributed to the injury, we cannot consider the question of contributory negligence on the part of the plaintiff. Such contributory negligence going only to the question of damages, concerning which phase of the case no fault is found with the instructions given at the trial: Stool v. Southern Pacific Co., 88 Or. 350 (172 Pac. 101).
3t5. It is a fact not disputed, when 2140 arrived at the home signal it indicated that a train was within the block a short distance ahead, and was, therefore, a warning of danger, and indicated to those in charge of that train the necessity of proceeding cautiously and under such control, which would seem necessary, in view of the circumstances, to prevent a collision with the train within the block. Under these circumstances the rules of the company made it the duty of those in charge of 2140 to stop for five minutes and proceed under control at . a speed not exceeding six miles an hour. The testimony of defendant in regard to the rate of speed actually made does not assume accuracy, but is to the effect that the train proceeded at about six miles an hour, but for the purposes of this discussion it may be assumed that the actual speed was six miles an hour, and it is assumed in defendant’s argument that if this was the case the train was “proceeding under control” within the meaning of the rule; but this is a mere assumption not justified by the language of the rule. The words “under control” mean,' “to be able to stop within the distance the track is séen to be clear.” The words “not to exceed six miles an hour” are words of limitation, and if a lower rate of speed is necessary to enable those in charge [169]*169of the train to observe whether the track is clear ahead, and to' stop in time to avoid a collision, the train is not under control until its speed is reduced to that minimum. Therefore, if the circumstances— darkness or want of a headlight on the tank — rendered it impossible to see objects on the track ahead, and to stop in time to avoid them, while running at the rate of six miles an hour, it was the duty of those in charge of the train to run at such reduced speed as would seem reasonably sufficient to enable them to do so, and a failure to so control the speed would be negligence.
The question as to whether or not the tail lights on 255 were burning was for the jury. McClure, the conductor of 255, testified that they were burning at Camp, less than two miles from North Fork. It is possible, but not at all probable, that they had all gone out in the short time that elapsed between the time McClure observed them and the time of the collision. That one of these lights might be burned or jarred out, is possible, but thajfc all three should expire simultaneously, is not within the bounds of probability. It is true the testimony of the conductor of 2140 indicates that they were not burning, but it should be remembered that he is a witness having a great interest at stake. If the lights were burning and he failed to observe them, it would indicate a negligence on his part that places the responsibility for the accident, and Fuller’s death in consequence of it, upon his shoulders; and he naturally might be inclined to shield himself and color his testimony. The foregoing does not indicate the writer’s view of the testimony, but it is an aspect of the case which might reasonably appeal to a trier of the facts, and a jury might reasonably weigh his testimony, in view of his connection with the accident, against the strong [170]*170probabilities against its accuracy developed by Mr. McClure’s testimony, and legitimately come to the conclusion that the preponderance of the evidence indicated that the lights were burning when the accident occurred.
Conceding, however, for the purposes of the discussion, that -the tail lights on 255 had been extinguished, although this seems improbable, there was still some evidence introduced by the plaintiff which tended to show that there was natural light sufficient to have enabled those in charge of 2140 to have observed the caboose of 255, and stopped in time to avoid the collision, if they had observed a cautious outlook. As shown in the statement, the witness Hoskins testified that daylight was breaking and that he was able to discern objects, such as a man or a car, at a distance of 200 or 300 feet; and this is borne out by the natural conditions shown by the almanac, and of-which the court takes judicial notice without proof.
One witness, L. F. Spoar, who testified he had had fourteen years’ experience as a locomotive’engineer, testified that under the track conditions existing from the east end of the bridge at North Fork to 300 feet beyond, 2140 could have been stopped within about 75 feet. Now take this testimony in connection with the testimony of Hoskins, that it was light enough to have seen a car 200 feet, and we have evidence indicating, that with proper lookout, those in charge of 2140, had an opportunity to have seen the caboose of 255 and to have stopped their locomotive in time to have averted the accident, even if they were running six miles an hour.
These facts were sufficient to take the case to the jury upon the question of negligence of the defendant.
6. It is not clear from the testimony exactly what [171]*171was meant by the statement that Fuller had agreed with Chapin to flag 2140 into North Fork. It is evident there was no understanding that he would flag them in until his own train “was in the clear.” He had not agreed to flag them against his own train but against No. 4. That is to say, that when 255 had got upon the passing track with room left for 2140, Fuller would flag against No. 4 so that 2140 could safely follow in upon the passing track. This seems the probable meaning of the agreement, as we understand the testimony.
Now as to Fuller’s duty to flag under Rule 99, the rule, as quoted in the statement, does not absolutely require a flagman to go back with stop signals every time the train stops, and everyone who is accustomed to railway travel, knows it is not done. It is only “when a train stops or is delayed under circumstances in which it may be overtaken by another train” that the flagman is required to go back and flag. This leaves something to the judgment of the flagman and the conductor as to the conditions which may or may not involve a liability to be overtaken by another train.
On cross-examination McClure testified as follows:
“Q. Now, Mr. McClure, going into a station like North Fork, where you know you are going to head in on the passing track, it is the duty of the flagman to be there ready to go out flagging immediately?
“A. Well, under ordinary circumstances we stop and head right in. I wouldn’t expect it, no, sir.
“Q. Do you know where the S. board is there at North Fork, or was at that time?
“A. I know about where it was, yes.
“Q. Where was it with reference to the hind end of this train, when you stopped your seventy cars to head in?
“A. Well, the caboose was outside the S. board at that particular place.
[172]*172“Q. Do you mean to tell this jury when you stopped to head in, and your hind end is outside the S. board, you don’t have your flagman go out ?
“A. Well, it is not customary. That is, where you stop and head right into a place. Of course if you are delayed any length of time they are supposed to go right back.
“Q. What do you call being delayed any length of time?
“A. Well, I should think a delay of three or four or five minutes.
“Q. Would you let the hind end of your train stick out there three or four or five minutes before you would send your flagman out?
5‘A. Well, that would depend.
S‘Q. Well, what would it depend on?
“A. Well, it would depend on conditions — of the track and grade and such as that.
“Q. Well, I am asking you with reference to conditions as they existed there at that time and place, and this grade and this track?
A. Well, it was his duty to go out and flag there at that place.
“Q. And it was his duty to go out immediately?
“A. Yes.
“Q. And he should have been in a position to go out and flag immediately, under those circumstances, should he not?
“A. Yes.
‘ ‘ Q. And he understood that is where he should have been?
“A. Yes.”
We think the above testimony clearly indicates that it was not customary for the flagman to go back at an ordinary stop made for the purpose of heading in on a switch, but that if anything unusual occurred, such as the breaking of the train, or there was reason to expect some danger from the rear, it was his duty to go immediately. The breaking in two of the train was such [173]*173a contingency but, according to Hoskin’s testimony, the collision happened almost at the same moment. Whether Fuller was in the act of starting or preparing to start with his lantern and fusees, is not disclosed. His body was in an erect position when it was found, so he was probably on his feet, and as he had been prompt to go out and flag on other occasions on the same run when the train separated, it would be unfair to assume that he was not equally diligent on this occasion. Irrespective of any presumption that he was doing his duty, there is small ground for the assumption that he was neglecting it.
Most of the testimony introduced by plaintiff on this phase of the case was necessarily drawn from persons who were, at the time of the accident, in the employ of the defendant, and some of whom a verdict in favor of plaintiff would impliedly convict of negligence. Under the circumstances, it is safe to say that they were, to a certain extent, unwilling witnesses, and that nothing was volunteered that was prejudicial to defendant; but with all these drawbacks we think the plaintiff presented a case sufficient to go to the jury, and that defendant fell short of making one showing the negligence of the deceased was the sole cause of his death, if indeed it has shown that he was negligent in any particular.
7. While the defense of assumption of risk is permissible in actions brought under the Federal Employers’ Liability Act, it is settled that it does not apply to extraordinary hazards created by negligence of a fellow-servant: Stool v. Southern Pacific Co., 88 Or. 350 (172 Pac. 101). The order permitting plaintiff to amend the reply was within the sound discretion of the court, and we are not prepared to say that such discretion was abused in the present instance.
[174]*1748. The defendant urges there was error in the following instruction:
“Now, you are instructed that the burden of proving that Fuller was guilty of contributory negligence, is upon the defendant, and in this connection you are instructed that in a death case, such as this is, there is a presumption that the deceased exercised reasonable care for his own safety, and the deceased is entitled to the benefit of this presumption, unless you find under all of the facts and circumstances of the case, by a fair preponderance of the evidence, that Fuller was negligent and such negligence contributed to cause his injuries and death.”
We think the instruction was proper under the circumstances. The. contention of defendant was, that the negligence of the deceased was the sole cause of the accident. The case was in this position: (1) It was incumbent upon the plaintiff in the first instance to show the negligence of the defendant’s servants in charge of 2140, and there was in their favor a presumption to begin with, that they performed their duty and exercised reasonable care for their own safety and for the safety of other trains on the road. When it attempted to impute negligence, either contributory or sole, to deceased, plaintiff was entitled to invoke the same presumption in favor of his conduct. This is the doctrine sanctioned in this state in McBride v. Northern Pacific R. R., 19 Or. 64 (23 Pac. 814, 42 Am. & Eng. Ry. Cas. 146). The presumption is not invoked primarily for the purpose of showing that the defendant was negligent, but for the purpose of placing upon the defendant the burden of proving the negligence of ® deceased. The instruction stated the law so far as it went and there was no request for an instruction to like effect on behalf of the defendant.
[175]*175In view of the fact that the court in its charge reiterated several times the statement that the burden of proof was upon the plaintiff, to establish by the preponderance of evidence the negligence of defendant, so this must have been thoroughly impressed upon the mind of every juryman. We do not think it was possible for the jury to have formed any impression, prejudicial to defendant, from the failure of the court to say in direct language that defendant’s servants were presumed to have done their duty, and not to have been negligent. The charge seems to be eminently fair and clear.
9. It is urged as error that the court permitted evidence tending to show that Fuller might have been somewhere else on the train than in the caboose, when the collision occurred, and that as the complaint alleged he was in the caboose and attending to his duties, the introduction of such evidence was prejudicial. To this objection it may be answered that there was no testimony admitted tending to show that deceased was anywhere else than in the caboose at the moment of the accident. The complaint alleged this; the answer admitted it; all the evidence showed it and nobody disputed it. Where he was a minute before the collision, or during the stop, was not pleaded. In detailing the circumstances immediately preceding the collision, it would not have been far-fetched or improper for plaintiff to have shown the general duties of deceased in connection with the train, or that he had such duties as might have required his immediate attention before he entered the caboose. The questions asked elicited nothing prejudicial to defendant, and did not tend to contradict any fact alleged in the complaint.
10. Another assignment of error is in regard to the instruction of. the court, leaving to the jury the ques[176]*176tion of negligence by reason of the failure of the defendant to have upon the westerly end of the tank an electric headlight. This objection is urged with much force and plausibility, and to discuss it properly, it is necessary to consider the state of the pleadings and proof upon this branch of the complaint.
Subdivision 10 of the complaint is as follows:
“That during all the time hereinbefore mentioned and alleged and on the day and at the time of the happening of said accident and injury to said Fuller hereinbefore alleged, it was the duty of the defendant to equip, maintain and use its said certain locomotive engine then and there being operated and handled over the .defendant’s said main line track towards and in the direction of the said caboose wherein said Fuller was stationed and situated at said time at the forward or westerly end thereof, with an electric headlight, of sufficient candle-power, measured with a reflector, to throw a light in clear weather, that would enable the engineer, who was then and there operating, handling and controlling said locomotive engine, to •plainly discern an object the size of a man, or larger, and more particularly the caboose on which said Fuller was then and there stationed and situated, as herein-before alleged, at a distance of not less than 800 feet therefrom, and to maintain and use such headlight upon said Westerly and forward end of said locomotive engine at the time and place where the said accident and injury to said Fuller occurred, to the end that said locomotive engineer might see and observe obstacles or obstructions upon the track, such as other engines, cars or trains, in ample time to stop and thereby avoid same. ’ ’
Having thus stated the duty of the defendant, subdivision 11 proceeds to set forth the breach of such duty as follows:
“On the morning of September 3, 1917, defendant negligently and unlawfully propelled and operated [177]*177along its main line track in a westerly direction, the said locomotive engine hereinbefore mentioned and described, which said locomotive engine was not then and there equipped with an electric headlight at the forward and westerly end thereof, of the candle-power required by law, as hereinbefore alleged, and the defendant negligently, wrongfully and unlawfully failed to equip, maintain and use at the forward and westerly end of said locomotive engine, then and there being operated backward along over its said main line track, any headlight at all, so as to enable the engineer operating and handling said locomotive engine, to see and discern upon the said track, any obstacle or obstruction thereon in time to avoid accident or collision therewith. ’ ’
The charge of the court, in relation to the matter thus pleaded, was as follows: ,
“It is likewise charged in the complaint that the defendant negligently operated extra 2140 without having a standard headlight on the front end thereof, having in mind the direction in which extra 2140 was running, or in other words, that there was no standard headlight on the rear end of the tender. This charge of negligence is practically the equivalent. of the charge that the defendant negligently operated extra 2140 backwards. The court submits to you the issue in this connection, whether, if the defendant chose to operate extra 2140 backwards, it failed to exercise ordinary care by reason of not having the rear end of the tender equipped with a standard high-power headlight. If you find that the defendant was negligent in the particulars in question, and you further find that such failure so to equip with a standard high-power headlight proximately resulted in the collision of extra 2140 with the rear'end of No. 255, and resulted in the fatal injuries to Walter Francis Fuller, it is your duty to find for the plaintiff. ’ ’
The language of the complaint, alleging the duty of the defendant with reference to lights upon the loco[178]*178motive, is substantially identical with the requirements of Rule 29, promulgated by the Interstate Commerce Commission on December 26, 1916, although no reference is made in the complaint to such rule, which reads in substance as follows:
“Each locomotive used in road service between sunset and sunrise shall have a headlight, which shall afford sufficient illumination to enable a person in the cab of such locomotive * * to see in a clear atmosphere a dark object as large as a man of average size, standing erect, at a distance of at least 800 feet ahead of such headlight. Each locomotive used in road service, which is regularly required to run backward for any portion of its trip, except to pick up a detached portion of its train, or in making terminal movements, shall have on its rear á headlight, which shall meet the foregoing requirements. * *
“It is further ordered that said rules shall apply to all locomotives constructed after July 1, 1917, and for locomotives constructed prior to that date, the changes required by the above rules shall be made the first time locomotives are shopped for general or heavy repairs after July 1, 1917, and all locomotives shall be so equipped before July 1,1920. ”
It does not appear either from the complaint or the testimony that the locomotive in question was regularly required to run backward, or that it was constructed after July 1,1917, or that it had been shopped for general or heavy repairs, after the promulgation of the above order, therefore, if there was any liability for the failure of defendant to have such a headlight, as described in the complaint, upon the rear end of 2140 on the night of the accident, it would have to be found under the general clause of the Employers’ Liability Act and not under the rules of the Interstate Commerce Commission. The Federal Employers’ Liability Act does not undertake to define negligence, [179]*179but leaves the term to stand as defined at common law, so that the question as to whether it was common-law negligence to run train 2140 backwards, on that trip, on that grade and under the atmospheric and natural conditions then existing, and with the knowledge that there was a train close ahead and a final warning of danger at the home signal, without such light as that alleged in the complaint to have been necessary, was, we think, one which the court had a right to submit to the jury.
We do not understand that the orders of the Interstate Commerce Commission fix, or ar*e intended to fix, the maximum of negligence in the use of lights, or in the operation of trains. The trip to be made was from the summit of a high range of mountains down a steep grade and in the night-time. Whether the circumstances justified defendant’s agents in making it without waiting for daylight, or until they could get to the turntable and turn around, so as to proceed with their light in front, was a question for the jury. Whether making the trip under the circumstances without such a light on the rear, as the wisdom and experience of the Interstate Commerce Commission had found sufficient for the safe operation of a train proceeding regularly, was also a question for the jury. For the defendant’s employees to go banging down that grade in the dark at the rate of six miles an hour, with the home signal indicating danger, and with the knowledge that there was another train less than a mile away standing upon the same track, would appear to the average layman to have been an almost reckless proceeding, and yet this is the situation shown by the testimony of defendant’s employees upon train 2140.
If circumstances ever existed where the best of light or the greatest caution should have been used, they [180]*180are shown hy the testimony of defendant’s conductor to have been present here. He is not shown to have been running under orders; neither is it shown that it was necessary that he should have made the trip in the night-time, and it was proper for the judge to submit to the jury the propriety of his running an unequipped, unlighted train under the conditions.
Petition for rehearing denied.
In Banc.
Mr. W. A. Robbins, Mr. A. C. Spencer and Messrs. Crawford & EaJcin, for the petition.
Mr. George W. Peterson, Mr. George C. Styles and Mr. R. J. Green, contra.
The language used by the court in the instruction in describing the headlight, might be subject to some criticism from an expert railroad man’s standpoint, but we think it in no way misled the jury.
Other minor "objections are urged and have been carefully considered, but we deem them without merit. The real and vital questions upon the trial, and those chiefly argued here, were (1) the alleged sole negligence of deceased, and (2) the instruction of the court in regard to the train backing down without a headlight. These have been the subjects of long and serious consideration, with the result above indicated.
The judgment is affirmed. ‘ Aeeirmed.