PHILIPS, District Judge
(after stating the facts • as above). In the original petition, filed November 4, 1904, the negligent acts imputed to the defendant as the basis of recovery were: (1) the failure of the agents and servants in charge of said freight train to so adjust and set the south switch at Lewis Station as to permit the passenger train to pass through; and (2) the failure to have “a light at said switch so as to enable the plaintiff to see whether or not said switch was properly adjusted and set.” The defendant answered this petition on the 25th day of November, 1904. Thus the issues stood until the third Monday in March, 1906, when the plaintiff filed an amended petition, alleging as further grounds of negligence that the defendant so hooded the headlight on the freight engine where it stood on the house track as not to disclose that the track at the station was not clear and unobstructed. for passing trains; and, further, that as the passenger train approached said station the defendant’s agents and serv[351]*351ants carelessly and negligently signaled to the agents and servants of the passenger train to come ahead on the main track. The answer to the amended petition, after admitting that the plaintiff was in its employ as such fireman, tendered the general issue, and alleged contributory negligence on the part of the plaintiff.
On the trial the plaintiff put in evidence the rules of the defendant company, among which are the following:
“General Notice.
“To enter or remain in the service is an assurance of willingness to obey the rules.
“Obedience to the rules is essential to the safety of passengers and employés, and to the protection of property.
“General Rules.
“A. Employés whose duties are prescribed by these rules must provide themselves with a copy.
“B. Employes must be conversant with and obey the rules and special instructions. If in doubt as to their meaning, they must apply to proper authority for an explanation.
“C. Employés must pass the required examinations.
“D. Persons employed in any service on trains are subject to the rules and special instructions.
“E. Employes must render every assistance in their power in carrying out the rules and special instructions.
“F. Any violation of the rules or special instructions must be reported.”
“Signal Rules.
“8. Flags of the prescribed color must be used by day, and lamps of the-prescribed color by night.
“9. Night signals are to be displayed from sunset to sunrise. When weather or other conditions obscure day signals, night signals must be used in addition.
Golor. Indication.
(a) Red Stop.
(b) White Proceed, and for other uses prescribed by the Rules.
(e) Green Proceed with caution, and for other uses prescribed by the Rules.
(d) Green and White Flag stop. See Rule 28.
(e) Blue See Rule 26.
Hand, Flag and Lamp Signals.
Manner of Using. Indication.
(а) Swung across the track. Stop
(б) Raised and Lowered vertically, Proceed.
“17. The headlight will be displayed to the front of every train by night, but must bo concealed when a train turns out to meet another and has stopped clear of the main track, or is standing to meet trains at the end of double track or at junction points.” -,
[352]*352“Use of Signals.
“27. A signal imperfectly displayed, or the absence of a signal where a signal is usually shown, must be regarded as a stop signal, and the fact reported to the superintendent or train master.”
“106. In all cases of doubt or uncertainty the safe course must be taken and no risks run.”
“345. Firemen as well as enginemen must watch signals as well as switches carefully, as frequently the first view can be had from the fireman’s side.”
The plaintiff testified that the time card in which were printed all the rules for the government of the employés was delivered to each member of the crew, and he had the time card then in force, from which the above extracts of the rules are copied. When he entered the service of the defendant company he made application for employment containing statements as to his qualifications, after which he made acknowledgment and-agreement as follows:
“I hereby acknowledge receipt of a copy of the rules and regulations for the government of employés of the M. K. & T. Railway Company and all amendments thereto, and a copy of the current time table, and agree to familiarize myself with and observe the same and to keep advised of stick amendments to said rules as may hereafter be made.”
He testified that he had complied with this statement, and had kept himself informed as to the rules governing the duties of firemen and other trainmen.
The plaintiff in his own behalf testified that on approaching Lewis Station from a half to a mile therefrom he had a full view of the station ; that he perceived- the presence there of the engine on- the freight train, and could tell from the light coming out from the sides of the hood that the engine was hooded. He further testified that at that distance he discovered there was no light on the switch stand or at the switch; that he saw the lantern, and it was no.t lighted where the evidence showed such signal light was customarily displayed. He knew that under the requirements of rule 27 “a signal imperfectly displayed; or the absence of a signal where a signal is usually shown, must be regarded-as a stop signal.” He therefore had warning that his train ought to stop at the very gateway of the passage through Lewis Station; and the evidence was that at the distance where he discovered the absence of the signal light there was ample time to have so checked up the train as to have avoided the accident. The rule of the company furtherihore declared that “firemen as well as enginemen must watch signals as well as switches carefully, as frequently the first view can be had from the fireman’s side.” He neither heeded the warning signal of the absence of a light at the switch, nor did he speak to the engineer calling his attention to the fact. This was culpable negligence on his part. St. Louis & San Francisco Railroad Co. v. Dewees, decided by this court, 153 Fed. 56, 82 C. C. A. 190.
To excuse himself from this failure to observe a known, positive rule of his employer, the observance of which would have prevented this disastrous accident, it seems to have occurred to him a year and five months after stating his grievances against the defendant company, predicated alone of the improper adjustment of the south switch and the absence of any light thereat, that he was enticed into the dan[353]*353ger trap by reason of the fact that as he approached the station he saw, as he thought, on the main track near the station, a “high-ball” signal, which he assumed to have been given by some employé of the railroad company, which he understood meant to come ahead.
Viewed merely as a question of fact, the burden of proof devolved upon the plaintiff to show that if such signal was given it was by some servant or agent of the defendant, and under circumstances for which the law would attach liability therefor to the defendant company. It challenges the credulity of the intelligent mind that if the plaintiff observed and acted on such signal, so conspicuous a fact was not uppermost in his mind when he first imparted to his counsel the facts for drafting the original petition. On the contrary, it does not appear to have been communicated by him to his attorneys for about a year and a half after the accident. On the other hand, every employé of the company in and about the station testified that no one of them gave any such signal at the time and place. This is confirmed by the detailed, harmonious statements of all of them as to how they were engaged and occupied at the time. The engineer and fireman on the freight train were at their station on the engine, the conductor and the two brakemen were occupied in preparing for and working at the hot box, and McCarty was sent therefrom with a message, demanding haste and attention, to the engineer on the engine, and before that commission was executed the “Flyer” approached and crashed into the freight train.
The improbability of such high-ball signal having been given by any such employé is accentuated by the fact that there .was no conceivable reason why such signal should have been given. The freight train crew, beyond the possibility of debate, assumed that the main track was clear for the passing through of the “Flyer.” And there was no rule of the company imposing upon any employé of the defendant any such duty. The work and duty of the freight train crew were about their own train. They had no other duty to perform toward the incoming train than to clear the main track, set the switches therefor, and hood the engine.
The plaintiff introduced a witness named Bogard, whose residence was about 300 feet from where the conductor and the switchmen were occupied about the detached engine and cars, who, remarkably enough, chanced to be outside of his house at that hour of the night. He testified that about the time of the coming of the passenger train he observed the up and down motion of a lantern over towards the south switch of the main track. As the cars on the house track stood between him and the main track, the physical facts render his testimony too utterly incredible for any court to suffer it to be the basis of a verdict and judgment. Where a witness’ testimony is positively contradicted by the physical facts, neither the court nor jury can be permitted to credit it. Gurley v. Railroad, 104 Mo. 211, 16 S. W. 11 ; State v. Dettmer, 124 Mo. 426, 27 S. W. 1117; McLachlin v. Barker, 64 Mo. App. 511; Kelsay v. Railroad, 129 Mo. 362, 30 S. W. 339; Huggart v. Railroad, 134 Mo., loc. cit. 679, 36 S. W. 220; Payne v. Railroad, 136 Mo. 583, 38 S. W. 308; State v. Gurley, 170 Mo., loc. [354]*354cit. 432, 70 S. W. 875; Petty v. Railroad, 179 Mo. 666, 78 S. W. 1003; Waters-Pierce Oil Company v. Van Elderen, 137 Fed. 557, 70 C. C. A. 255.
It is but just, perhaps, to this witness to say that as he went out into his yard about 12 o’clock the light he saw was in connection with the movement of the freight train and the passing thereabout on the house track of the crew with lanterns in their hands; and he confused these with the instant of the coming in of the passenger train.
' If it be conceded that these matters should have been submitted to the jury, the important question is, was the fact of the appearance of the high-ball signal sufficient as matter of law to render the defendant company responsible for the plaintiff’s injury? “When a railroad company has' deliberately adopted a system o'f rules, which have been made familiar to its employés, and its railroad is operated under them, the reasonableness and sufficiency of these rules are questions of law, and not of fact. These questions must be determined by the court, because there is no other way in which a set of rules may ever be established or adjudicated as either reasonable or sufficient.” Little Rock & M. R. Co. v. Barry, 84 Fed. 944, loc. cit. 949, 28 C. C. A. 644, 43 L. R. A. 349.
As an artificial being, like a railroad, has no eyes to see, no ears to hear, no mouth to speak, no hands to act, it can only exercise such faculties and exert its powers through the instrumentality of its managing officers and their employés. For the performance of its functions, the betterment of the service, the protection of its property and the lives and limbs of its employés and the passengers committed to its care, it is-authorized to prescribe reasonable rules and regulations, and to insist upon their faithful observance and enforcement by its employés. This is well expressed in Lake Erie & W. R. Company v. Craig, 80 Fed. 495, 25 C. C. A. 585:
“The doctrine that the master, operating a complicated and dangerous business. may and must make reasonable rules for the guidance and safety of the employés, that the employé must yield: obedience, and takes upon himself the consequences of disobedience, is a doctrine that is eminently wise, and founded upon the highest considerations of justice and humanity; The master’s right to protect himself from heavy pecuniary liability in the operation of a large business is most important. His duty, by suitable regulations, such as are suggested by experience, to protect as far as may be the servant from risk of injury to himself as well as injury from a fellow servant, for which the master is not pecuniarily liable, and for which there is practically no remedy, is a duty justly imposed by law. And the still higher considerations of the preservation of human life, and the prevention of serious physical maiming And disability with the attendant suffering and the impairment of usefulness, furnish the fullest support and sanction to the doctrine. And the law knows no such incongruity as holding the master to the duty of making, with the right of making, without at the same time requiring from the servant full conformity to, the regulations.”
In Wolsey v. Railroad Company, 33 Ohio St. 227, the court said:
“These companies are held to a severe line of responsibility for the acts of their servants, upon the idea that the act of the servant is the act of the master, because the master has told the servant exactly what to do, and he has done it. Certainly the whole law, qui facit per alium, etc., depends upon the idea of obedience to orders. - The conduct of a gigantic corporation, with hundreds and thousands of employés, is not unlike that of an army. Its en[355]*355tire action depends upon the fact that the commands emanating from authority are to be complied with by every one subordinate to that authority.”
The defendant had prescribed the signal at the very switch where this accident occurred. While a light at the switch showing certain colors on the disk was required by the rule, a white light indicating safety, red to stop, green to proceed cautiously, the defendant anticipated the very contingency which arose in this instance, the possibility from some cause or other that the light which should be there might be broken, displaced, extinguished, or negligently omitted by the person entrusted with its care; and therefore, as a precautionary measure, it prescribed that “a signal imperfectly displayed, or the absence of a signal at a place where a signal is usually shown, must be regarded as a stop signal.” Notwithstanding this rule was known to this fireman, and notwithstanding he discovered the absence of any light from one-half to one mile from the station, he elected to rely upon the high-ball signal, merely supposed by him to have been given by some person in the yard beckoning him to come on. On the witness stand the following occurred on cross-examination of the plaintiff:
“Q. Can you turn to any place in these rules which says that such a signa! shall be given for a train approaching as station along the switches that they use there? A. No, sir. Q. Don’t yon know there isn’t any such thing? A. I know; but they do do it sometimes. Q. You know there is no such provision in the rules? A. Yes, sir.”
On the other hand, all the crew, witnesses on behalf of the defendant, testified that there was no such usage or custom, for the palpable reason that such signals were used in the movement of trains on sidings, and consequently ought not to be confused 'by application to an incoming passenger train. And to this end, the evidence showed that a bulletin order had some years prior thereto been issued by the company prohibiting such use of signals; but the plaintiff testified that he was not aware of such bulletin. The defendant company, however, had done all it could to have its rules observed in respect of its signals.
It would be an intolerable doctrine that forsooth some of the employés of the railroad company sometimes gave a signal, not prescribed or sanctioned by the employer, it might be followed, not at the risk of the employé but that of the master. No such sporadic act of the employé, unauthorized by and unknown to the master, could constitute a precedent for disregarding an established rule. Abel v. President, 103 N. Y. 581, 9 N. E. 325, 57 Am. Rep. 773; Russell v. Richmond & D. R. Co. (C. C.) 47 Fed. 204. In A., T. & S." F. R. Co. v. Reesman, 60 Fed. 370, 378, 9 C. C. A. 20, 23 L. R. A. 768, Mr. Justice Brewer said;
■‘The duty of obedience to the rules of the employer is one resting alike upon all employes; and when an employs claims to recover from his employer for injuries resulting through the latter’s negligence, he cannot escape the consequences of his own act contributing to such injury — an act done in known violation of the rules of such employer — on the ground that his immediate superintendent knew and assented to such act of violation. If it were otherwise, then the supineness and negligence of any superintending officer of a corporation would relieve a subordinate from responsibility for his own conduct. In other words, the wrong-of one employé is excused by a like wrong [356]*356of..another. The employé.Injured, through his own omission of duty escapes liability for .such omission because some other employé is equally careless. The question has not infrequently arisen whether knowledge and assent on the part of-the conductor, or other .official on the train, of a violation of one of the rules of the company by a passenger, relieves the latter from the burden of contributory negligence arising from such violation, and the response has almost uniformly been in the negative. It is true that in some cases the party injured was not an employé, subject to the control of the officer whose knowledge and assent to the violation was relied! upon as an excuse, but the principle underlying is the same. The question is not one of obedience to orders, but of a compliance with rules; and, generally speaking, the duty of compliance is not waived by the mere fact that some controlling official has knowledge of the failure to comply.”
In respect of this issue in the case the defendant made the following request for direction to the jury:
“The court instructs you that under the plaintiff’s evidence the second ground of negligence, namely, signaling to the passenger train to come ahead on the main track, cannot be regarded as the cause of the accident in which the plaintiff was injured, and there can be no recovery ip this case on that ground.”
This the court refused, but in its charge said to the jury:
“You should further consider any "fact, if you find it to be a fact from a preponderance of all the testimony, any signal that might have been given by any party to direct the passenger train to proceed.”
This, it will be observed, did not even require that the jury should find that the signal was given by any servant or agent of the defendant, but if given by any party it might be considered in forming a verdict.
Criticism is made of this request in that it asserted that such signaling cannot be regarded as the cause of the accident, as it is inconsistent with the contention of defendant’s counsel that the heeding of the signal by .the plaintiff caused the injury, and because it contained more than a single proposition. The position of defendant’s counsel is that no such signal was given by any servant or authority of the defendant, and if given could not be regarded as the cause of the accident, for the palpable"reason that the more direct cause of the injury was the known disregard by plaintiff of a positive rule of his employer. The contributory negligence asserted by the defendant is that the injury resulted from the plaintiff’s failure to observe one of its published rules known to him. If he saw fit to act upon some other notice, unauthorized by the defendant, such as the claimed high-ball signal, the contributing cause to the accident was the failure to heed the absence of the target light.
Moreover, the defendant further requested the court to charge the jury “that the only ground of negligence alleged in the petition which you can inquire into in this case is the first one to the effect that the agents and servants of the defendant had failed and omitted to properly set and adjust the switch for the passing track.”
As the court gave the request made by defendant that permitting the freight train to stand on the side track with the headlight of the engine hooded afforded no ground of recovery, as that was done in compliance with a known, published rule of the company, the only question left in the case was as to the setting of the switch-and the failure to [357]*357maintain a light thereon. As will be shown hereafter, the failure to have such light there was not the cause of the accident.
It is suggested that the defendant- did not frame its requests in such form as to have them separately given, but put them rather in the form of a connected charge, to be given totidem verbis as a unit. The requests as made contained separate and distinct propositions of law, based on several independent grounds of negligence alleged in the petition; and the bill of exceptions shows that the court granted the request in respect of the fourth ground, that is, as to the hooding of the engine, “but as to the second and third grounds of negligence the court refused the requests made by the defendant,” setting out these requests separately as above stated and exceptions were saved to the refusal of each request. And the court evidently regarded them as separate and independent requests for he said in his charge:
“Certain requests in matters of law have been made by counsel for the respective parties. I have given such as I deem appropriate in this charge which I am now giving you, and therefore refuse the requests made.”
Counsel for plaintiff very ingeniously undertake to escape from the dilemma of the plaintiff acting upon the high-ball signal rather than the warning given him by the absence of the switch light, by suggesting that as the engineer as well as the fireman was in position to have observed the absence of any light at the switch no negligence is imputable to the plaintiff for not warning the engineer in charge of the throttle and the lever. The authorities cited in support of this contention (Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758; Hutchinson v. Railroad Company, 161 Mo. 246, 61 S. W. 635, 852, 84 Am. St. Rep. 710; New York Central & H. R. R. Company v. McGrath, 151 Fed. 436, 80 C. C. A. 666) have no application to an instance like this, where the rule of the company required that “firemen as well as enginemen must watch signals as well as switches carefully, as frequently the first view can be had from the fireman’s side,” and, further, “in all cases of doubt or uncertainty the safe course must be taken and no risks run.” What would be the sense or meaning of such a rule, if after the fireman, as a result of his vigils, discovered a warning signal, he should then shut his eyes and his mouth, and go on to impending death or injury, on the accountability to him of the company for his life or his limbs, and possibly those of every fellow servant and passenger under his protection? The clear meaning and purpose of imposing such obligation upon the fireman was to safeguard the property of the railroad company, and the lives and limbs of the crew and passengers against the possible oversight or neglect of the engineer.
The distinction between this and the case of St. Louis & San Francisco Railway Company v. Bishard, 147 Fed. 496, 78 C. C. A. 62, is so palpable as hardly to justify discussion. That case was based largely upon the proposition that there was no evidence showing that as a matter of fact the fireman discovered the absence of any light at the switch board, and because of the further fact that owing to the position of the switch board from his side of the engine, and the fact that at the particular instant his duties called his attention away from such [358]*358observation, contributory negligence on his part was not inferable.. Whereas, in the case at bar, the plaintiff’s own testimony showed affirmatively that he did discover the absence of the light from a half to a mile distant, and he took no action on that information whatever, when the evidence shows that the speed of the train could have been so slackened within a quarter of a mile as to have prevented the accident. See in this connection St. Louis & San Francisco Railway-Company v. Dewees, supra.
In respect of the third ground of negligence, the defendant requested the court to charge the jury as follows:
“That under the plaintiff’s evidence, consisting of his own testimony and the rules introduced in connection with his testimony, the absence of a light from the switch had the same effect and: was to be treated the same as a red light, and was a warning to the men on the passenger train to stop; and therefore the absence of the light from the switch cannot be regarded as negligence which was the proximate cause of the injury to plaintiff, and there can be no recovery on that account.”
The first part of this request, as we have already shown, was but declaratory of the express rule of the defendant company. The absence of the light was equivalent to a warning then given to the engineer and fireman to stop. The absence of the light was not the proximate cause of the injury. It did not cause the collision. This is obvious as but for the improper adjustment of the switch the engine 'of the passenger train would not have run into the freight cars standing, on the' siding or passing track. Viewed independently of the contributory negligence of the plaintiff, if the switch had been properly set, the accident would not have occurred, even though the engineer and fireman had proceeded regardless of the absence of any light.
Notwithstanding the defendant may have been entitled to an instructed verdict on the issue respecting the condition of the south switch, it is not in position to complain, for the reason that it did not malee such request at the close of the evidence before the submission of' the case to the jury. The verdict was returned on the 23d day of March, 1906, and not until the 27th day of that month did the defendant file motion for new trial, and also a motion that the court enter judgment for the defendant notwithstanding the verdict. In this jurisdiction no error is predicable of the action of the trial court in denying a motion for new trial. We are not disposed to encourage the practice of a party in taking chances with the jury for a favorable verdict, and when disappointed at the result four days thereafter asking the court, in effect, to set aside the action of the jury and enter a verdict for one of the parties.
It results that the judgment of the circuit court must be reversed, and the cause remanded, with direction to proceed in conformity with this opinion.